Krojs v The The King

[2022] NSWCCA 209

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Krojs v R [2022] NSWCCA 209

Hearing dates:

2 September 2022

Decision date:

30 September 2022

Before:

Adamson J at [1]; Wright J at [208]; Fagan J at [209]

Decision:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against conviction — whether tendency evidence was wrongly admitted — where evidence was of applicant’s consensual sexual relationship with a female under 16 years — where offence alleged involved no consent — where evidence showed sexual interest in females under 16 years — where evidence not wrongly admitted

CRIME — Appeals — Appeal against conviction — Miscarriage of justice — whether crown prosecutors questioning appropriate — fairness obligation — where held questioning appropriate

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — alternative count — where verdict could be explained based on different consent requirements in counts charged — where verdict not unreasonable

CRIME — Appeals — Appeal against sentence — whether finding made by sentencing judge consistent with jury verdict — De Simoni principle — where finding consistent

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 66C

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Procedure Act 1986 (NSW), ss 84, 170

Evidence Act 1995 (NSW), ss 97, 101

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

AJ v R [2022] NSWCCA 136

Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Crockford v R [2022] NSWCCA 115

DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63

Edwards v R [2022] NSWCCA 22

Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83

Glenn (a pseudonym) v R [2020] NSWCCA 308

Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

Khorami v R; R v Khorami [2021] NSWCCA 228

Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Isaacs (1997) 41 NSWLR 374

R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199

Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29

Skelton v R [2015] NSWCCA 320

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Zurshig v R [2021] NSWCCA 309

Category:

Principal judgment

Parties:

Dylan Krojs (Applicant)
Regina (Respondent)

Representation:

Counsel:
I Nash (Applicant)
C Curtis (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2017/287257

 Decision under appeal 

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

18 February 2021

Before:

Woodburne SC DCJ

File Number(s):

2017/287257

HEADNOTE

[This headnote is not to be read as part of the judgment]

Dylan Krojs (the applicant) was convicted by a jury of a single count of sexual intercourse with a child between the ages of 10 and 14 years (12 years) contrary to s 66C of the Crimes Act 1900 (NSW). This count, which was an alternative count, was count 2 on the indictment. The jury returned a not guilty verdict in respect of count 1, which charged aggravated sexual assault which required the Crown to prove not only sexual intercourse but also that the complainant had not consented and that the applicant knew that she did not consent. On 31 August 2021, the sentencing judge (who was also the trial judge) sentenced the applicant to 4 years’ imprisonment with a non-parole period of 2 years.

The following is a summary of the facts. In early 2015, the complainant, aged 12, met the applicant through a mutual friend. The complainant told him she had just turned 12.

In June or July 2015, the complainant woke one morning and told her father, with whom she then resided, that she did not want to go to school. Her father became angry and told her that if she did not want to go to school, she should get out of the house. The complainant rang the applicant, told him that she had nowhere to go and asked if she could stay at his place. He agreed and told her that she could sleep in his room, and he would sleep in the lounge room. The complainant then travelled to the applicant’s home by train.

In the evening, the complainant, the applicant, his father, and his brother watched the State of Origin rugby league match. The applicant poured a drink of double-strength Johnny Walker Red Label mixed with a little Coca-Cola for the complainant.

When the complainant was tired, she went to the applicant’s bedroom to sleep. Very soon after, the applicant came in and locked the door in a way such that no one from the outside could get into the room. He then came and lay beside the complainant, under the doona cover. He put on loud music and then began kissing her before getting on top of her and pinning her arms against the bed. The applicant then started to pull her tights down when she said “No, stop.” He then put his penis inside her vagina and did not use a condom. She told him “Stop. Like, it really hurts” to which he responded that it would feel better afterwards. The complainant tried to get the applicant off her by pushing him but was unable to do so. Later, he rolled over and pulled her pants back up. The complainant cried herself to sleep.

The next morning, when the charged her phone, she heard an emotional voicemail from her father asking her to come home. The complainant then accessed the applicant’s Facebook account using his computer and messaged one of her sister’s friends to ask if she could go to their place. The complainant then took the train and was picked up by her sister, the friend and the friend’s aunt. She did not at that time tell them what happened. They took her to the Police Station to resolve the missing person’s report her father had filed.

Shortly afterwards, the complainant told her sister what happened and was taken to a doctor to be tested for sexually transmitted infections. Later, she told her parents. Neither the doctor, nor the complainant’s parents reported the matter to police.

In May 2017, triggered by the applicant’s then girlfriend sending her a friend request on Facebook, the complainant decided to report the incident. She told her school principal who referred her to the school counsellor, who referred the matter to police.

At the committal hearing for the trial, the applicant admitted to having had (consensual) sex with a 14-year old girl. A document of agreed facts relating to this conduct was admitted as tendency evidence and read to the jury.

The applicant sought leave to appeal from his conviction and sentence pursuant to s 5 of the Criminal Appeal Act 1912 (NSW). The three conviction grounds were first, that the tendency evidence was wrongly admitted; second, that a miscarriage of justice was occasioned by the Crown Prosecutor’s questioning of the Crown witness, cross-examination of the applicant, and/or the final address; and third, the verdict was unreasonable. The sole sentence ground was that the sentencing judge erred in her factual finding in light of the verdicts which were received.

The Court held (Adamson J, Wright and Fagan JJ agreeing), granting leave to appeal against conviction and sentence but dismissing the appeal:

1. The grounds of appeal against conviction were not question of law alone and therefore required the leave of the Court: [129] (Adamson J); [208] (Wright J); [209] (Fagan J).

   R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 applied.

   (2)   Although the tendency evidence did not involve sexual assault without consent, it tended to show that the applicant had a sexual interest in girls under 16 years of age and that he acted on it. The force of this evidence was in its ability to show that it was more likely that the applicant had a sexual interest in the complainant and acted on it, particularly in light of ordinary human experience which would reject this as unworthy of belief: [136]-[137] (Adamson J); [208] (Wright J); [209] (Fagan J).

   Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 discussed.

2. A ground concerning the Crown Prosecutor’s conduct comes with the difficulty that the transcript to be reviewed provides no insight into the tone and manner of questions and responses. Further, the prosecutor’s obligations of fairness must be seen in the context of their obligation to put the case as forcefully as appropriate. No topics raised were beyond the scope of what was appropriate in light of what needed to be proved. Nor was the prosecutor’s use of “we” and “us” in questions improper: [159]-[162] (Adamson J); [208] (Wright J); [209] (Fagan J).

   R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 applied.

3. The conviction on count 2 was not unreasonable even though the Crown did not address on this count. This was because it was unnecessary given the elements in count 2 overlapped with the elements in count 1, which was addressed.: [171] (Adamson J); [208] (Wright J); [209] (Fagan J).

4. The conviction on count 2 was not unreasonable in light of the acquittal on count 1 as it could be explained on the basis of the jury not being satisfied beyond reasonable doubt that the applicant knew that the complainant did not consent (that being an element of count 1 but not of count 2): [174]-[175] (Adamson J); [208] (Wright J); [209] (Fagan J).

5. It was open to the jury to accept some parts of the complainant’s evidence and reject others, and therefore find the applicant guilty of count 2. Whilst there were inconsistencies in the evidence about who the complainant told about the conduct and when, they were relatively peripheral: [178], [183] (Adamson J); [208] (Wright J); [209] (Fagan J).

6. The sentencing judge’s finding that the sexual intercourse was forceful was not inconsistent with the verdict of not guilty on count 1. Nor does that finding breach the De Simoni principle and bring the offence into a more serious category of offending: [196]-[197] (Adamson J); [208] (Wright J); [209] (Fagan J).

   Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 discussed. The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 applied.

Judgment

1. ADAMSON J: Dylan Krojs (the applicant) seeks leave to appeal against his conviction ordered following a trial by jury before Woodburne SC DCJ in the District Court at Sydney of sexual intercourse with a child between the ages of 10 and 14 years contrary to s 66C of the Crimes Act 1900 (NSW) which occurred between 16 and 19 June 2015. The applicant was charged with the following offences:

“1   Between 16 June 2015 and 19 June 2015, in Revesby in the State of New South Wales, did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting, in circumstances of aggravation, namely, that at the time of the sexual intercourse [the complainant] was under the age of 16 years, namely 12 years.”

[aggravated sexual assault contrary to s 61J of the Crimes Act]

In the alternative:

“2   Between 16 June 2015 and 19 June 2015, in Revesby in the State of New South Wales, did have sexual intercourse with [the complainant], a child then above the age of 10 years and under the age of 14 years, namely 12 years.”

[sexual intercourse with a child over 10 and under 14 contrary to s 66C(1) of the Crimes Act]

2. As referred to above, he was convicted of count 2. He was acquitted of count 1.

3. The applicant also seeks leave to appeal against the sentence imposed of 4 years’ imprisonment commencing on 30 August 2021 and expiring on 29 August 2025 with a non-parole period of 2 years’ imprisonment commencing on 30 August 2021 and expiring on 29 August 2023. Section 66C carries a maximum penalty of 16 years’ imprisonment. At the time of the offending, no standard non-parole period had been specified.

4. The applicant’s grounds of appeal, if leave is granted, are as follows:

“Grounds of appeal against conviction

1.    Evidence of a purported tendency of the appellant was wrongly admitted.

2.    A miscarriage of justice was occasioned by conduct of the Crown Prosecutor, including:

a)    the questioning of the Crown witness; and/or

b)    the cross-examination of the appellant; and/or

c)    the final address

3.    The verdict of the jury was unreasonable, or cannot be supported having regard to the evidence.

Grounds of appeal against sentence

4.    The sentencing judge erred in concluding that ‘the verdict of the jury is readily explicable on the basis that the jury was not satisfied beyond reasonable [doubt] that the accused actually knew that (the complainant) was not consenting to the intercourse’ and conducting the fact-finding exercise on that footing.”

5. Because of the breadth of the grounds of appeal, it is necessary to address, in some detail, the way in which the trial was conducted, as well as to summarise the evidence in the Crown case. The grounds of appeal against conviction will be addressed before the ground relating to sentence is addressed, although grounds 3 and 4 are related.

6. All references to legislation in these reasons are, unless otherwise indicated, references to the Evidence Act 1995 (NSW) (the Act).

The trial

The procedural history

7. Because the applicant, in support of ground 2, has submitted that the prosecutor took advantage of the applicant’s mental issues to provoke a reaction and cause him to lose his self-control before the jury, it is necessary to go into greater detail than would otherwise be required about the events preceding the trial which resulted in the guilty verdict on count 2.

8. The alleged offence was committed in June 2015. The complainant participated in a recorded interview with police on 12 July 2017. She participated in a further interview on 31 October 2018.

9. On 4 September 2018, the applicant was committed for trial in the District Court. He represented himself at the committal hearing and made admissions about conduct, which the prosecutor argued on the voir dire (but not at the trial) were admissible as tendency evidence (see below). On 17 September 2018, orders were made that the complainant’s evidence be given by way of pre-recorded hearing pursuant to s 84(2) of the Criminal Procedure Act 1986 (NSW). The applicant continued to represent himself until 26 November 2018, despite several mentions of the matter in the District Court.

10. At a pre-trial hearing on 11 June 2019, Mr Williams (the applicant’s trial counsel) appeared before Girdham SC DCJ. The defence objected to tendency evidence sought to be led by the Crown. In the course of the morning, concerns arose about the applicant’s mental health because of his outbursts during the hearing. He saw a medical practitioner during the luncheon adjournment and was certified unfit on 11-12 June 2019. Her Honour stood the pre-trial proceedings over to 13 June 2019.

11. On 13 June 2019, her Honour delivered a judgment in which she ruled that the tendency evidence was admissible. Ground 1 challenges the correctness of this ruling although the evidence adduced at trial as tendency evidence was confined to a statement of agreed facts (marked Exhibit C). On that day, the applicant was very distressed and made several outbursts. His trial counsel expressed concern that he was not fit to be tried. Subsequently, on 17 June 2019, defence counsel informed Girdham SC DCJ that the applicant was to be examined by a psychiatrist.

12. As referred to below, on 4 September 2019, the complainant’s evidence was pre-recorded. A trial commenced before Traill SC DCJ and a jury on 4 February 2020. The complainant’s pre-recorded evidence was played to the jury. On 11 February 2020, the jury was discharged prior to verdict, in part because of the applicant’s outbursts but also because of concern regarding his fitness to be tried. Also on that date, the Court ordered that the applicant undergo a psychiatric examination, which was conducted by Dr Richard Furst. Relevant portions of transcript were provided to Dr Furst for the purposes of the examination.

13. In a report dated 10 March 2020, Dr Furst reported that the applicant met the criteria for Attention Deficit Hyperactivity Disorder and Substance Use Disorder. He found the applicant fit to be tried but noted the stresses of litigation, particularly for someone with the applicant’s mental illnesses and “underlying temperamental/personality deficits.” Dr Furst noted that the applicant was not taking any stimulant medication and recommended that he take Ativan (Lorazepam), a sedative benzodiazepine medication which, with sufficient dosage, tends to alleviate acute anxiety and stress.

The charges

14. On 4 February 2021, the applicant was arraigned on an indictment before Woodburne SC DCJ and a jury, which charged two offences set out above.

15. The Crown case on count 1 was that, on the night of 17 June 2015, the applicant engaged in a single act of penile-vaginal intercourse with the complainant without her consent and knowing that she did not consent. At that time, she was 12 years old, having been born in January 2003. She had sought refuge at the applicant’s house because she had argued with her father and ran away from home. Count 2 was an alternative charge, which did not require the Crown to prove that the complainant did not consent or that the applicant knew that she did not consent.

Tendency evidence adduced by the Crown

16. The Crown served a tendency notice dated 17 May 2019 pursuant to s 97(1). It stated in the notice that the applicant’s tendency sought to be proved was:

“a)    His tendency to have a particular state of mind, namely, his sexual interest in female children under the age of 16 years; and

b)    His tendency to act on that sexual interest by:

i)    Befriending female children under the age of 16 years, who he knows to be under the age of 16 years;

ii)    [NOT PRESSED.]

iii)    Forming a relationship with the female children; and

iv)    Having sexual intercourse, in the form of penile/vaginal intercourse, with the female children.”

17. The Crown notified the applicant that it proposed to rely on the following evidence:

1. the evidence of S in a statement dated 22 May 2018; and

2. the admissions made by the applicant at the committal hearing in the Burwood Local Court on 9 September 2018, when he said:

“Okay yes in my past yes I have had sex with someone under the age of 16.”

“One time in my life I made one mistake that’s it. I made that mistake with [S], I learnt that mistake.”

18. The evidence in S’s statement referred to above was as follows. In February 2014, when S was 14 years old, she and the applicant met through Facebook. He identified himself as being 18 years old although he had just turned 19. He wanted to have sexual intercourse with her and she reluctantly agreed because she was worried that he would be violent. She subsequently broke off the relationship. Ultimately, when he refused to leave her alone she told him that she would tell others that they had had sex when she was underage.

19. The applicant objected to the tender of the tendency evidence. He accepted that the evidence was relevant but contended, in reliance on Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [37]-[39] and [41]-[64] (Kiefel CJ, Bell, Keane and Edelman JJ), that it was not “significantly probative”.

20. On the voir dire, the applicant argued that there was a fundamental difference between the evidence said to ground the tendency and the charged conduct, in that the intercourse between him and S was consensual, whereas the charged conduct was alleged to have taken place without the complainant’s consent (and was denied by the applicant).

21. Girdham SC DCJ assessed the evidence as having high probative value. Her Honour said:

“I am of the view that there are notable and significant common features of and about the accused’s admitted conduct with the proposed tendency witness that bind or link the events together and is capable of establishing that at a time proximate to the allegations the subject of this trial the accused had the tendencies asserted by the Crown, namely, a tendency to have sexual interest in female children aged under 16 and a tendency to act on that sexual interest by befriending female children who he knows to be aged under 16 years, forming a relationship with female children and having penile/vaginal intercourse with the female children.

Evidence that the accused had such a tendency is highly probative in assessing whether he did in fact have penile/vaginal sexual intercourse with the complainant as alleged. Indeed, if accepted by the jury it significantly increases the probability of the complainant’s allegation being true. The evidence is strongly probative and makes it more likely to a significant extent that the accused committed the offence charged. The evidence has the required significant probative value.”

22. Her Honour identified the following potential prejudice to the applicant of the tendency evidence:

“It is obvious that there will be a degree of prejudice to the accused on the admission of tendency evidence involving as it does another occasion where the accused has admitted to having had penile/vaginal intercourse even if no prosecution was taken and the allegations were not asserted to be criminal and are certainly not as serious as the allegations the subject of count 1 on the indictment such that there is a risk the jury may be influenced to seek to punish the accused for that act is obviated.”

23. Her Honour applied s 101 and determined that the probative value of the tendency evidence substantially outweighed its prejudicial effect. As referred to above, the facts relied on by the Crown as tendency evidence were the subject of a statement of agreed facts (summarised below).

The Crown case

The complainant’s pre-recorded interviews on 12 July 2017 and 31 October 2018 and her pre-recorded evidence taken on 4 September 2019

24. As referred to above the complainant was born in January 2003. The complainant’s evidence comprised the following, which were played to the jury:

1. a pre-recorded interview on 12 July 2017 (when the complainant was 14 years and 6 months);

2. a pre-recorded interview on 31 October 2018 (when the complainant was 15 years and 9 months); and

3. pre-recorded evidence (examination in chief and cross-examination) taken on 4 September 2019 (when the complainant was 16 years and 8 months).

25. In early 2015, the complainant, who was then aged 12, met the applicant, whom she knew as “Dylan”, through a mutual female friend, H, with whom the complainant was at school, and a male friend, KS (who was born in October 2001). At that time, the complainant and KS were girlfriend and boyfriend.

26. The applicant was tall, about a foot taller than the complainant (who was 153cm in height), with blue eyes and short, brown hair. The complainant described him as “very skinny”. Her head would “go to his chin”. The complainant, at that time, weighed about 60kgs and was bullied at school for being “fat”. The complainant regarded the applicant as a good friend because he was a “really good listener” and she used to call him “a couple of times a week” if she was bored and she would “talk to him about a lot of stuff, like all [her] problems and everything.”

27. When they met, the applicant told the complainant that KS was cheating on her with another girl and that she deserved better. This precipitated a romantic relationship between the complainant and the applicant. Her view was that her relationship with the applicant was a “romantic relationship” “from the beginning.”

28. At one point in about early 2015, when the complainant was talking to the applicant on the phone, he asked her how old she was. She responded that she had just turned 12. He responded, “Oh, wow. I’m like, so much older than you.” When she asked him how old he was, he said that he was 17 (at the time he was actually 19).

29. In mid-2015, the complainant, who was then 12, was living at Mount Druitt with her father, who was a “very big drug user”. She had lived with him since she was 11 years old. No other sibling lived at that residence at that time. The complainant’s father had a daughter, Sally (a pseudonym), who was older than the complainant, who lived with her mother in Taree.

30. The complainant’s mother lived at Katoomba with the complainant’s four younger siblings. At that time, the complainant and her mother were not speaking because the complainant did not like her mother’s new partner. During this time there was a period of approximately 10 months when the complainant and her mother did not speak.

31. In June or July 2015, at the time of the second State of Origin match (the significance of which is outlined later in these reasons), the complainant had woken up in the morning and told her father that she did not want to go to school. He became angry and said that if she did not want to go to school, she should get out of the house. She went to her room and started to get ready for school. Before she left the house, her father fell asleep. She decided that she no longer wanted to live with her father and did not want to go to school.

32. The complainant phoned the applicant and asked him if she could stay at his place. She told him that she did not know where else to go and did not want to go to school. He agreed. She asked him if it would be a problem and asked where she would sleep. He told her that it would not be a problem because she could sleep in his room and he would sleep in the lounge room. The complainant did not tell her father where she was going because she knew that he would become angry with her if she did.

33. The complainant grabbed her father’s phone and some money (about $3.50 or $4, because the cost of a train ticket from Mount Druitt to Revesby was about $3) and “jumped on the next train.” She got on the train at about 9am or 9.30am. At that time, she was attending Dunheved Chifley College in St Mary’s. The school day started at 8.35am. She turned the phone off to prevent her father from being able to contact her. She travelled to Central and changed trains to go to Revesby.

34. At around the time she arrived at Revesby railway station, the complainant messaged the applicant and asked him to come and meet her because she was upset and did not want to walk by herself. He declined. According to the complainant, the applicant would “always make up excuses to not be out in public with [her] or come and see [her] or anything like that.”

35. She went to the three bedroom house where the applicant was living with his father and his brother. The complainant and KS had visited the house previously, which was the occasion on which the complainant had first met the applicant. On 12 July 2017, the complainant drew a plan of the house and a diagram of the applicant’s bedroom, which became Exhibit B.

36. The complainant and the applicant played on an Xbox console until the evening. The applicant’s brother may have come to the house that afternoon. The applicant and his father made spaghetti bolognese for dinner. The complainant helped them with the cooking. That night, the applicant’s father, his uncle and possibly also his brother, were watching the State of Origin rugby league match. The complainant and the applicant joined them. The three males were drinking alcohol. The applicant poured a drink of “double-strength”, “really strong alcohol” for her. It was Johnny Walker Red Label mixed with a little Coca-Cola. As far as she could recall she had two or three of these drinks and, as a consequence, “could hardly walk.” She regarded herself as “a lot more drunk than he was.”

37. At some stage of the evening, the applicant’s uncle asked the applicant how old the complainant was and the applicant responded that she was 16. The uncle said, “She doesn’t look 16, where’s some ID?” The applicant responded, “She’s 16, she doesn’t have any ID.” The complainant said nothing to correct him. The complainant first mentioned this conversation to the police or the authorities in her pre-recorded evidence on 4 September 2019. She explained that the applicant’s whole family thought that she was 16. Previously, the applicant had told her that she had to pretend to be 16 because his father would be angry if he found out her true age.

38. At about half-time in the match, the complainant went to the applicant’s bedroom to sleep as she was “really tired”.

39. As soon as the complainant lay on the bed under the doona cover, the applicant came in. She saw him slide a lock on his door to “lock the door fully”. This had the result that no one from the outside could get into the room.

40. The applicant came and laid beside her, also under the doona cover. She was wearing tights and a jumper. He was wearing a blue collared T-shirt and grey track suit pants. It was dark but light was coming from the computer monitor. The applicant put “really loud” music on his computer monitor on the bedside table. He kissed the complainant before getting “on top of” the complainant and pinning her arms against the bed. She froze. She had not kissed anyone before and did not know what to do. She tried to close her legs.

41. He started to pull her tights and her pants down. Her tights were two sizes too big because they had been her cousins’. She said, “No, stop” and started to push him away from her. At some stage he had removed his track suit pants. He put his penis inside her vagina. He did not use a condom. When he was inside her she said, “Stop. Like, it really hurts.” He kept saying that it would feel better afterwards and that it was “all right”. She said, “No, it really, it really hurts. Like you need to get off me.” The complainant tried to get the applicant off her by pushing his shoulders and pushing his hips but to no effect. In the course of this, she ripped his T-shirt. She lay there crying. He rolled over and pulled her pants back up. The complainant cried herself to sleep. It was a big bed and she was up against the wall. She explained why she was crying, as follows:

“Because I was in pain and I was angry with myself that I didn't fight him more to get off me and mostly in pain.”

42. She stayed in the bed and did not leave the house because she “didn’t know what to do.”

43. The complainant woke up at about 10am the following morning. The applicant said to the complainant: “Every single time I’d roll over and try to cuddle you, you’d scream at me in your sleep and tell me to get off you”. Her reaction to this was as follows:

“… the whole time when he’d be saying that, I would just be thinking, well, I wonder why, like, I was so scared. I, I was just, I just didn't want him near me.”

44. When the complainant got up that morning, the applicant’s father and brother had already left the house. She went to the toilet. She told the applicant that she was hungry. He was playing the Xbox and she went to the kitchen to make something to eat. She was “just thinking like, for ages while [she] was eating, like, [she] need[s] to leave.” Later, the applicant got up to make coffee.

45. While the applicant was either out of his bedroom making coffee or in the shower, the complainant found a charger to charge her phone (she had not brought a charger with her). When the complainant turned on the phone, she discovered that her father had left a voicemail message telling her that he had called the police, who were looking for her, and that he just wanted her to come home. When she listened to the message, the complainant’s “jaw dropped” because she could tell that her father was crying on the phone and she had only ever heard her father cry once before. The complainant realised that she had to get home and tell her father that she was all right.

46. The complainant wanted to communicate with her father or her half-sister, Sally, who was 16 years old. She realised that the way to get in contact with Sally was to use the applicant’s Facebook account (which could be accessed using his computer on the bedside table) to message her sister’s (Sally’s) best friend, Dina, (with whom Sally lived when she was not in Taree) and ask if she could go to her place. Dina lived in Doonside. The complainant knew that Sally was staying with Dina because she had seen Sally a few days earlier and Sally had told her.

47. The complainant messaged Dina, “I’m safe and I’m fine. I’ll be coming home soon.” Dina told her to get the next train and meet her at the Seven Hills railway station. The complainant responded that she would be there in an hour.

48. The complainant’s recollection was that she left the applicant’s place at about 3.40pm or 4pm. In re-examination, she explained why she had remained in the applicant’s house for so much of the day:

“Because one I didn't know what to do and two I was scared and I thought that if people found out where I was then the police would come and pick me up and that be a way for me to get out of there but I just yeah didn't really know what to do, was very confused.”

49. As she was walking to the railway station, it was spitting and she was crying. She had to wait at least half an hour for the train to Central where she changed trains and boarded a train to Seven Hills. When she arrived at Seven Hills, it was “just dark”. Dina was waiting for her with her aunt, and Sally. The complainant said, at that time or later, that she told Dina and Sally what had happened. The complainant inferred from Dina’s face that Dina did not believe her.

50. They took her to the Mount Druitt Police Station. Dina’s aunt informed police that the complainant was all right and was returning to her father’s house at Mount Druitt. The police indicated that they would resolve the missing person’s report. The complainant explained in her pre-recorded evidence on 12 July 2017 that she did not tell the police what had happened because her impression had been that Dina did not believe her and she reasoned that if Dina did not believe her then the police would also not believe her.

51. In her evidence on 4 September 2019, the complainant said that she told her sister, Sally, sometime later about what happened with the applicant, which led Sally to suggest that she go to the doctor (see below). In her evidence on 4 September 2019, the complainant explained that she did not tell police what had happened because one of them was “very aggressive” and she expected them to say that she was “just another teenager that ran away from home”. She also “did not feel comfortable telling him [the police] something like that.”

52. When she got back to her father’s place, the complainant did not tell her father what happened because she did not think that he would do anything about it because of his drug use. The complainant learned that, in her absence, her father and KS had been looking for her. Her father was “worried and angry”. The complainant and her father “got into a big argument and a big fight”. Her father hit her a few times with his hand. They argued about her running away, taking his phone and not contacting him at all to tell him that she was safe. Her father phoned KS to tell him that she had come back.

53. As a result of the incident with the applicant and the fight with her father, the complainant felt “very distraught and depressed about the whole situation” which gave her “a lot of trauma”. As far as she was concerned her “relationship” with the applicant finished on the night he raped her. She did not tell her father about what happened with the applicant until at least a year later, although she continued to live with him.

54. Either on the night of her return home or in the following days, the complainant rang KS and told him what had happened. His response was to tell her to go to the police because it was “rape”. She responded by saying that the applicant was 17 years old. KS told her that the applicant was 19. Until that time, she had understood, from what the applicant had told her, that he was 17. She explained, in her pre-recorded evidence on 4 September 2019:

“… the way that me and [the applicant’s] relationship was that I had a lot of trust in everything that he would say so if he thought that it was okay to do what he did then even if he was 17 in my head it was – it’s just what happens, that’s just what relationships are like.”

55. When the complainant told Sally what had happened, Sally suggested that she go to the doctor “to make sure that everything was okay”. She went to a medical centre in Blacktown with Sally, Dina and Dina’s aunt where she was seen by a male doctor. Sally told the doctor that the complainant had been to a sleep-over, which was a lie. Sally told the doctor that the complainant needed a pregnancy test and a Sexually Transmitted Infection (STI) test. The complainant did not tell the doctor that she was raped. Indeed, the conversation with the doctor was between Sally and the doctor. The complainant did not say anything.

56. After the incident, the complainant did not return to school for more than a month because her “Nan” died and she travelled to Melbourne for the funeral. When she returned to the school, she did not tell anyone what had happened. She explained that she was not liked at that school because she was the “new girl” and that other girls would make up “horrible rumours” about her. She said:

“So if I went around saying that this happened then it’d just escalate. I’m not going to put myself in that situation.”

57. At some time after the incident, the complainant tried to message and call the applicant because she learned that he was angry with her for using his Facebook account to communicate with her sister, which led her sister to send the police to his address. On one occasion when the complainant was in class at school and she rang him, he answered and started yelling at the complainant. He told her that the police had come to his house after she left “that day” and that it was all her fault. She tried to explain how sorry she was and that her sister had been the one to tell police. He told her never to call him again and hung up on her. She tried to call him several times after this but, subsequently, she heard a recorded message saying that his phone had been disconnected. She has not had any further contact with him after that.

58. Ultimately, when the complainant told her father about the incident, she also told him that she did not know what to do and that she needed his help. He said, “that wouldn’t have happened”; “you probably asked for it”; and “well, if you didn’t run away.” His response made the complainant feel “for a long time” that it was her fault because if she had not run away and had not drunk the alcohol that the applicant had given her, it would not have happened.

59. In about July 2015, the complainant went to stay with her mother for about a month. While she was there, her father telephoned her mother and told her that he had found “quite explicit messages” and photographs which had been sent between the applicant and the complainant. When the complainant’s mother got off the phone, the complainant denied that explicit images and photographs had been sent and said that she did not want to talk to her mother about it. When her mother said that she was going to call the police, the complainant threatened to kill herself and told her mother that she loved the applicant. At that time, the complainant described her feelings as follows:

“I was quite angry because - because I did have such strong feelings for [the applicant] I wanted to protect him and I knew that he’d get in a lot of trouble if the police found out about what happened.”

60. Either that day or that evening, the police came to the complainant’s house to speak to her. When they asked if she and the applicant were in a relationship and if anything had happened, she responded that they were just friends. She did not tell the police what had happened for two reasons: first, she wanted to protect the applicant and, second, she was worried about the applicant’s reaction because the applicant was “really full of surprises and you’d never know how he was going to react with any situation.” Subsequently, the complainant was taken to hospital because she had threatened self-harm. She returned to her mother’s place and, after a few days, moved back with her father.

61. In about late 2015, the complainant moved back to live with her mother. Their relationship was “a lot better” than it had been. When the applicant was either 13 or 14, she told her mother that the applicant had sexually assaulted her and that she wanted to do something about it. When the complainant told her mother what had happened, her mother contacted her father and told him that he should do something about it because the complainant was in his care when it happened. Her father told her mother that he would go to the police to report it but he did not do so. Her mother said that she would be with her every step of the way if she wanted to do something about it but the complainant did not know what to do. In her words, “nothing really happened after that.”

60. In about May 2017, the applicant’s then girlfriend sent the complainant a friend request on the joint Facebook account she shared with the applicant. The complainant’s response was to think that it was “so wrong” that the applicant would think that he had not done anything wrong. She wanted him to know that he had done something wrong. As a consequence of this message, the complainant, who had issues with anxiety from a young age and had suffered “really bad depression” when her parents separated, experienced anxiety which “went through the roof”. She was too scared to sleep because she was worried that the applicant would find her and “come and do it to [her] again in [her] sleep”. She also had nightmares for a couple of months. She was scared to talk about it because when she spoke about it, she had nightmares.

61. This was what made her decide to report the matter to Ms Boyall, the principal of her school, Katoomba High School, who referred her to the school counsellor, who then referred the matter to the police.

62. A couple of months before 12 July 2017 (the pre-recorded interview), the complainant’s mother apologised to her for not doing something about it earlier and for leaving it to her father to go to the police (which he had not done).

Complaint evidence

Sally

65. Sally gave evidence that she received a Facebook message from the complainant. She rang her father (who was also the complainant’s father) and found out that the complainant was missing. The complainant told Sally that she was at Revesby railway station. Sally, who was in Taree at the time, arranged for Dina, her then partner (ex-partner by the time of the hearing), to collect her. Sally travelled to Sydney from Taree, a journey of approximately eight hours. The three met at Blacktown station. By that time it was quite late. They went to Dina’s place to stay the night. Finally, the complainant told Sally that someone (whom she did not identify) had sexually touched her. The complainant also said that a male had got her drunk and put drugs in her drink. Sally told the complainant that she had to go to see a doctor to have some tests done, including a pregnancy test.

66. Soon afterwards, Sally returned to Taree.

KS

67. KS had known the applicant when they were both teenagers. The applicant is older than KS. KS met the complainant in 2012 when he was 12 years old and introduced her to the applicant when KS took her to his place. At that time, KS told the applicant that the complainant was 16. KS believed that to be the truth. KS explained in cross-examination:

“She had lied to me when I was younger so I believed that she was older. It wasn’t until maybe two, three years ago that she told me the truth, said that she was, like, in love with me or something so she lied about her age. That was about it.”

68. KS recalled the complainant ringing KS to tell him that she had a fight with her father and that she was going to stay at the applicant’s house. KS became annoyed because he regarded her as his partner. He accepted that he and the complainant were not actually in a relationship at that point because they were “in an argument because [he] cheated on her at one point.” Prior to the argument, KS and the complainant had been in a relationship for about a year. KS did not accept that it was “a romantic relationship” because “we were just kids”. In cross-examination, KS accepted that, in his police statement dated 25 November 2017, he had said that he was at the applicant’s place when the complainant came and said that she was going to stay over as she had had a fight with her father and did not want to go home.

69. Subsequently, possibly a night or two after it happened, the complainant, who was “frantic” at the time, told KS that the applicant had got her drunk and had “unconsensual sex” which she “didn’t want”. KS became annoyed and did not ask her about it because he did not want to know any more.

The complainant’s father

70. As the complainant’s father died in 2021 (before the trial before Woodburne SC DCJ) his statement dated 6 December 2017, was read to the jury. He deposed that he was married to the complainant’s mother in 2006, had four children with her, including the complainant, and separated from her in 2013. In about 2013 or 2014, the complainant came to live with him in Mount Druitt. The complainant attended Mount Druitt Public School in year 6 and Chifley College Dunheved in Year 7.

71. On 17 June 2015, the complainant asked her father if she could have the day off school as she did not feel like going to school. The complainant took her father’s phone and they started arguing. He told her that she could not have the day off school to go and meet up with “him”. He also told her that she could go and live with her mother if she was not going to listen to him. He demanded that she give him her phone but she refused. He grabbed her phone and threw it as hard as he could. It smashed. He told the complainant to go to school. He went back to bed.

72. Later that morning, when he got up, he rang Chifley College to ask whether the complainant was at school. He was told that she had not attended any of her classes. Her father waited until school had finished to see if she would come home. He discovered that the complainant had taken his phone. He continually rang it but she did not answer it. He rang Mount Druitt Police. They came to his house so that he could fill in a missing persons form. He stayed at home, waiting and hoping that the complainant would turn up. He was frantic with worry for her safety. He continued to call his phone but it would go to voice message and was eventually switched off.

73. At some time in the morning of 18 June 2015, the complainant’s father checked Facebook and could see that the complainant was on Facebook. He cancelled his SIM for the phone to prevent her from running up a large bill. He contacted Sally and his sister to ask them to contact the complainant via Facebook and tell her to come home. Sally reported that she had located the complainant and would pick her up and bring her home. Later that day, Sally, Dina, Dina’s aunt (whom the complainant’s father thought was Dina’s mother) and the complainant arrived at her father’s place. Sally told him that they had taken the complainant to the doctor to have her “checked out”. The complainant told her father that the boy she went to stay with would not let her charge her phone, which was why she did not call him.

74. At first, the complainant’s father could not talk about it with the complainant because he kept getting upset. However, after a few days, the complainant told him that the boy had slept with her and that she told him to stop but he wouldn’t. The complainant told her father that that was why she needed to go to the doctor.

Dr Syed Hussaini

75. On 20 June 2015, the complainant and a person noted to be her aunt, presented to Dr Hussaini, a doctor at the Pacific Medical Centre at Blacktown. Dr Hussaini recorded that the complainant, whose date of birth was noted to be in January 2003, had been to a sleep-over at a friend’s house and wanted to be checked for chlamydia and gonorrhoea. Dr Hussaini also noted that the complainant had reported that her father had hit her when she returned home from the sleep-over. The complainant’s urine was tested and she also had an x-ray to ascertain whether she had sustained a fracture of the right hand, which was tender on examination, where she said that she had been hit. The complainant made no other complaint of pain. The x-ray was found to reveal no fracture and the urine tests produced a negative result. The notes of the practice recorded that the complainant came in for review the following day but was seen by a medical practitioner other than Dr Hussaini.

76. Dr Hussaini had a duty to disclose to the authorities any circumstance where someone under the age of 16 comes to him with any complaint of a sexual nature. Dr Hussaini did not disclose the matter to the authorities.

The complainant’s mother

77. The complainant’s mother confirmed that she met the complainant’s father in 2001 and they married in 2006. They had five children together, of whom the complainant was the eldest. They separated in October 2013, when the complainant was almost 11. Initially, the complainant’s mother had custody of all five children but, in about 2014, she started a new relationship. The complainant was not “happy with that” and went to live with her father, who lived at Mount Druitt. There was a period, which the complainant’s mother estimated to be about a year when the complainant and her mother did not speak to each other.

78. On Sunday 12 July 2015 (a date ascertained from hospital records), the complainant was staying with her mother. Her mother received a phone call from her father who was “quite upset and angry”. He told the complainant’s mother that he had found messages and photos between the complainant and the applicant on his phone which were “quite explicit”. At that time, the complainant used her father’s phone.

79. The complainant’s mother first spoke to the complainant, who told her mother, “We’re just friends”. Her mother then said that she would speak to the applicant to “see what he’s got to say about it.”

80. The complainant’s mother called the applicant, of whom she knew nothing and with whom she had not previously spoken, and asked him “what was going on” concerning the images and messages. She also asked the applicant whether he knew that the complainant was only 12 years old. The applicant told the complainant’s mother that they were “just friends” and that there was nothing in it. He offered to put his girlfriend on the phone. The complainant’s mother, who was angry, spoke to the applicant for about 10 minutes, at the end of which she told him that “the police are going to have to deal with it then”.

81. The complainant overheard her mother saying that she would call the police. The complainant started “yelling and screaming and … actually threatened to kill herself.” The complainant admitted that she loved the applicant.

82. At that point, her mother called the police who, when they appreciated that the complainant was going to hurt herself, called an ambulance. As a consequence, the complainant spent the night in hospital. On that occasion, the complainant did not tell her mother that the applicant had had sexual intercourse with her. The complainant’s mother told the complainant’s father that he would be the best person to follow this up with the police.

83. The complainant’s mother first made a statement to police on 4 September 2017. She did not learn that the applicant had had sexual intercourse with the complainant until she was contacted by police after a complaint had been reported through the complainant’s school.

Jennifer Boyall

84. As of June 2017, Ms Boyall was the principal of Katoomba High School. She is a qualified teacher and psychologist. The complainant approached Ms Boyall on 7 June 2017. At that time, Ms Boyall had known the applicant for about two and a half years since she enrolled in Year 7 from a primary school at Mount Druitt.

85. On 7 June 2017, the complainant came to the doorway of Ms Boyall’s office. She was very distressed, teary and jittery and asked if she could come in and talk. The complainant told Ms Boyall that a year and a half earlier, when she was living with her father, she had been raped. She told Ms Boyall that she had told her father of the incident but she did not know what had happened to that information. She said that she had decided to report it to the school because the school “obviously follow[s] process[es].”

86. Ms Boyall considered that the school counsellor was the best person to support the complainant through such a disclosure. The complainant agreed to see the school counsellor, Julia Macken, immediately. After Ms Macken had conferred with the complainant, which took about an hour, Ms Macken told Ms Boyall that she was obliged to report the matter. Ms Boyall was present while Ms Macken made the mandatory report through the Helpline and heard her use the name “Dylan”. This report was communicated to the police as well as to the Department of Communities and Justice.

Other evidence

87. Senior Constable Cooper gave evidence that, at 7pm on 17 June 2015, the complainant’s father came to Mt Druitt Police Station to report that the complainant had gone missing. He told police that he had not given the complainant his phone that morning and that she had become angry with him. He had fallen back to sleep and when he woke, he discovered that his phone was missing. He believed that she had taken it.

88. At 6pm on 18 June 2015, when Senior Constable Cooper returned to duty, she learned that the complainant’s father had tried to contact her again. She called him back and he gave her Sally’s details. Senior Constable Cooper contacted Sally who informed her that the applicant was connected with her inquiry about the complainant. She identified the applicant’s premises in Revesby and arranged for police to attend the premises to ascertain whether the complainant was there. Police from the Bankstown Local Area Command went to the applicant’s house at 7.44pm but the complainant was not there.

89. Police records noted that the complainant attended the Mount Druitt Police Station on 18 June 2015 and spoke to Constable Emma Roberts, who stated that the complainant was looking “well and healthy”.

The investigation

90. On 7 June 2017 this matter came to the attention of police as a result of Ms Macken’s report, which was received via the Joint Investigation Response Team Referral Unit.

91. The complainant was first interviewed on 12 July 2017 by Detective Amanda Dench. Detective Dench ascertained that the State of Origin match was televised on 17 June 2015. She went to the applicant’s house on 20 September 2017 to arrest him but found that he was looking after his one-year old daughter who was ill. He consented to Detective Dench taking photos of the house (which were tendered and marked as Exhibit H), saying, “I have nothing to hide”. Detective Dench observed the applicant’s bedroom and the door, which she said was “just as [the complainant] had described it” and corresponded with the drawing the complainant had done when she was first interviewed by police on 12 July 2017.

92. The applicant agreed to present himself at the Bankstown Police Station the following day, 21 September 2017, which he did. He was arrested. As was his right, he declined to be interviewed.

Tendency evidence: the relationship between S and the applicant

93. The material which was the subject of argument in the voir dire was not tendered. Instead, the facts concerning the relationship between S, a female, and the applicant were the subject of the following agreed facts (set out in Exhibit C).

94. S was born in May 1999 and was, in mid-February 2014, 14 years old. S met the applicant through a Facebook friend. S and the applicant messaged each other. In late February 2014, they met for the first time. They formed a romantic relationship. At all times during their relationship, the applicant knew S’s actual age. On 29 May 2014, during the course of their relationship, the applicant visited S at her home. While on S’s bed, they had consensual penile-vaginal sexual intercourse. At that time, S was 15 years old and the applicant was 18 years old.

The tendency direction

95. After the agreed facts had been read to the jury, her Honour gave a tendency direction (which is not challenged) as follows:

“It is the Crown case that you would be satisfied that the Crown has established each of the essential elements of the charge Count 1, beyond reasonable doubt and that ultimately you would be finding the accused guilty of Count 1, or in the alternative Count 2, upon the basis of the evidence the Crown has put before you. As you would know or appreciate at this stage, fundamental to each of the counts on the indictment Count 1 and its alternative Count 2 is the allegation that the accused had sexual intercourse in the form of penile-vaginal intercourse with [the complainant] when she was 12 years old.

When you are considering that aspect of the Crown case and whether the Crown has proved beyond reasonable doubt that the accused did the act of penile-vaginal sexual intercourse alleged, there is an additional area of evidence you are permitted to take into account. This area of evidence relates to what the Crown contends is evidence establishing the fact that the accused had a tendency to act in a particular way. If you find the fact of such tendency to be established, you are entitled to take this additional fact into account in determining whether you are satisfied beyond reasonable doubt that the accused had sexual intercourse with [the] 12-year-old [complainant]. Let me explain.

The crown prosecutor referred to this area of evidence when he gave his opening address and you now have before you the document containing admissions relating to this area of evidence. It relates to a girl [S] and to the undisputed fact that in 2014, the accused knowing that [S] was 14 years of age befriended her and then when she was 15 years of age he had penile-vaginal sexual intercourse with her. That sexual intercourse was consensual. It is the Crown case that the conduct of the accused with [S] shows that the accused has a sexual interest in female children under the age of 16 years and that he had a tendency to act on that sexual interest by befriending them and forming a relationship with them and then having penile-vaginal sexual intercourse with them.

The Crown does not assert that the accused that accused's conduct with [S] discloses a tendency to have non-consensual sexual intercourse with female children under the age of 16 years and you cannot use this evidence as evidence that the accused had a tendency to have non-consensual intercourse with a child, rather it is the Crown case that evidence reveals that the accused had a tendency to have a sexual interest in female children under the age of 16 years and that he had a tendency to act on that sexual interest by befriending them and forming a relationship with them and then having penile-vaginal sexual intercourse with them.

It is the Crown case that the fact the accused had that tendency makes it more likely that he did have penile-vaginal sexual intercourse with [the complainant] when she too was under the age of 16 years, namely 12 years. Now, the evidence in this regard is set out in the admissions document already read to you and marked as exhibit C in the proceedings. Because the accused has made these formal admissions, there is no need for the Crown to call [S] to give evidence about those matters. The matters are facts stated in the admissions document are not in dispute and you should accept those matters of fact as being established facts.

The question for you to consider is whether, from the admitted facts concerning the accused's conduct in relation to [S] in 2014, you can infer or conclude that the accused had the tendency alleged by the Crown, namely a tendency to have a sexual interest in female children under the age of 16 years and a tendency to act on that sexual interest by befriending them, forming a relationship with them and then having penile-vaginal sexual intercourse with them. If you cannot draw that inference then you must put aside any suggestion that the accused had the tendency alleged, you would simply consider the other evidence in the case.

However, if you do draw the inference that the accused had the tendency alleged by the Crown then you may use the fact that he had that tendency in determining whether the accused did in fact have sexual intercourse with the complainant …. The evidence must not be used in any other way. It would be completely wrong to reason that because the accused has committed one crime or has been guilty of one piece of misconduct he is therefore generally a person of bad character and for that reason must have committed the offence as charged. That is not the purpose of the evidence being placed before you and you must not reason in that way. You cannot punish the accused for other conduct attributed to him by finding the accused guilty of the charges on the indictment.

You cannot use it in anyway prejudicial to the accused unless you accept the Crown argument that it discloses the particular tendency stated and therefore makes it more likely that the accused did have sexual intercourse with the complainant …. Even if you accept that the accused has a tendency to act in the particular way alleged, you still need to consider whether or not he acted in that particular way on the occasion when the Crown alleges he did, namely on the night [the complainant] stayed overnight at the accused's house in his bed. Now, members of the jury, that's the direction I wish to give you at this stage. I will be returning to matter in the summing up and likely repeating that particular direction so you have it in mind at that time.”

The defence case

96. The defence case was that there was no physical contact of a sexual nature between the applicant and the complainant on the night of the State of Origin match, or, indeed, at any other time. The defence case was that the applicant had allowed the complainant to stay in his bedroom on that night because she had called him in distress and told him that she did not have anywhere else to go.

The applicant’s evidence

97. The applicant gave evidence as follows. The applicant first met the complainant when KS brought her with him to the house where the applicant lived with his father. KS himself lived only about a street away from the applicant. The applicant’s understanding was that they were in a relationship. KS told the applicant, in the complainant’s presence, that the complainant was 16. The applicant did not ask the complainant to disclose her age.

98. The applicant subsequently became aware that KS and the complainant were arguing. After that first meeting, the applicant and the complainant were in “friendly” contact mainly over the phone by text message.

99. On the morning of 17 June 2015, the applicant was woken by a telephone call from the complainant, who was in tears, asking if she could stay at his place because her father had kicked her out and she had nowhere else to go. The applicant agreed because he felt sorry for her. The applicant regarded her as “pretty much” “a total stranger” to him at the time and considered her to be KS’s girlfriend.

100. The complainant arrived that morning and came to his bedroom where he was playing a video game called Grand Theft Auto (GTA). At that time, the applicant’s brother was at school and his father was at work.

101. He was cross-examined about the complainant’s age in the following exchange:

“Q. Why did you put yourself in the position of being alone with a young girl in your bedroom like this?

A. At the time, I didn’t think of it as an incident like that. The fact of the matter was to me, to my knowledge, she was 16. And regardless, I don’t think that you need to sleep in the same room to have sex with somebody.

Q. Well, you’re letting us know, then, what’s the relevance of you telling us that she’s 16 just a moment ago?

A. Well, the relevance to that is you’re saying that I’m letting a 12-year-old into my house, when I wouldn’t have let a 12-year-old in my house.

Q. But you did let a 12-year-old in your house?

A. Not to my knowledge, she was not 12.”

102. That evening was the State of Origin, which the applicant and his father and brother watched “religiously” every year. They ordered three meatlovers’ Domino’s pizzas and two 1.25l bottles of coke, which was a Domino’s deal at the time. The applicant and his father drank alcohol. The applicant’s brother, who was underage at the time, did not. The applicant did not offer the complainant any alcohol because, although he believed that she was 16, that was still underage. The applicant had three glasses of Black Label whisky. He did not have more because he was on a good behaviour bond at the time. (This revelation led to an unsuccessful application, which is not the subject of challenge, for the jury to be discharged.) As far as the applicant could recall, the complainant had a few glasses of Coca-Cola.

103. After the match had finished, the applicant went to his bedroom and the complainant followed him in. He said that there was no prior arrangement about where she would sleep and she “pretty much told [him] she would sleep on my lounge in my room or whatever”. He asked her to take off her shoes (because he does not like people to wear shoes in his room) and sat down on the bed and started his playlist. He picked up the controller to play GTA. At this time, the complainant was sitting on his bed, playing with the computer.

104. The applicant said that there was “no possible way of … locking that door” because his brother had earlier damaged the door. While he was playing GTA, he started to doze off. The complainant was still “playing the computer”. He slept through the night and woke at 7am. The complainant was between the bathroom and the lounge room speaking to his brother, who was getting ready for school and left shortly afterwards. By that time his father had already left for work. He denied that he had “sex of any kind” with the complainant.

105. The applicant said that his bed did not have fitted sheets but that it did have a doona.

106. As the applicant was walking through the house, he heard the complainant pick up the phone, which she had on loudspeaker, to listen to a voicemail message. The applicant heard a voice, which he presumed to be the complainant’s father, who was crying and begging her to come home. When he heard the message, the applicant told the complainant to get out of his house. He said, “what the hell, like you told me you got kicked out, why would your dad be ringing and now crying, I mean.”

107. The applicant handed the complainant his computer so that she could message her sister.

108. According to the applicant, the complainant left the house at some time between 11am and 3.30pm. She told him, as she was leaving, that she was going to her sister’s place at Seven Hills. She also told him that she was the subject of a missing person’s report. The applicant gave her $4.80 to get the train to her sister’s place.

109. The police came to the applicant’s house to see if the complainant was there. She had already left. His response to the visit was as follows:

“I was angry at the time because I didn’t want police in my house at all, due to the fact of I was on a good behaviour bond.”

110. The complainant phoned the applicant the following morning. She said:

“I'm so sorry, I didn't want to tell you that I'd ran away. I'm sorry.”

111. The complainant was crying during this call and told the applicant that her dad had hit her. The applicant did not know how the complainant found out that the police had come to his place to see if she was there.

112. In the days following the State of Origin match, the applicant and the complainant had contact with each other “several times” by messages and phone calls. The complainant told him that she loved him. Subsequently, they lost contact with each other.

113. The applicant denied ever having sent the complainant a friend request through Facebook. The applicant was shown a friend request from the complainant to him. He said that when he received the friend request, he declined and pressed the block button.

114. In cross-examination, the applicant was questioned about having sexual intercourse with S at a time when he was 18 and she had just turned 15, in the following exchange:

“Q. What are you having sex with a girl who is fourteen, fifteen years old for?

A. She was fifteen and at the time, what had happened was we’d pretty much got close, met each other a few times, got close over a couple of months, dated, then it went from there. One thing led to another, you’re in a relationship, what do you do.

Q. Well, you don’t have sex with a girl who is underage. Do you?

A. Well, no, and then I corrected that mistake by admitting to police what I’d done.”

115. The applicant said that he admitted to the police that he had had sex with a girl who was underage. He was cautioned as a consequence. In re-examination, he said that it was “[his] lesson.”

The applicant’s brother’s evidence

116. The applicant’s brother gave evidence. He said that the door of the bedroom which was the applicant’s at the time of the incident could be closed but would not remain shut and could not be locked.

117. The applicant’s brother said that, on the evening of the State of Origin match, the complainant asked him how old he was and he asked her, in return, how old she was. She told him that she was 16 and he believed her. The applicant’s brother said:

“She looked young, yes. Don't - don't get me wrong. She did look young.”

118. The applicant’s brother said that while they were watching the State of Origin match, only his father drank alcohol. He and the applicant drank Coca-Cola and the complainant had a glass of Coca-Cola and a glass of milk.

119. After the match, the applicant’s brother went to bed. He did not hear anything coming from his brother’s bedroom that night. He said that if anyone was calling out, he would “most definitely” have heard it. He explained that this was:

“Because we share the wall to the bathroom and plus the corridor is so narrow and small, you can hear stuff from the dining room. It’s such a compact house, you can hear noise throughout the whole house from every bedroom.”

120. The morning after the match, the applicant’s father left for work at 6.40am, as he always did. The applicant’s brother got up and got dressed for school. He went to the kitchen to make coffee. At about that time, the complainant came out of the applicant’s room and sat down on the lounge in the sitting room. The applicant’s brother turned on the television news and drank his coffee while he was talking to the complainant, who “seemed completely fine”. They discussed a television show called Pretty Little Liars. He left for school at 7am.

The verdicts

121. The jury retired to consider its verdicts at 2.59pm on 15 February 2021. At 2.46pm on 18 February 2021, the jury returned a not guilty verdict in respect of count 1 and a guilty verdict in respect of count 2.

Psychiatric assessment after the trial and before the sentence proceedings

122. On 24 March 2021, Dr Furst re-examined the applicant for the purposes of the sentence hearing. He reported, of present relevance (to ground 2):

“Mr Krojs presented as a 25-year-old Aboriginal male who was noticeably calmer, was more engaging, was more reactive and was more conversational than he had been 12 months earlier. His main concerns at the time of recent assessment were anxieties/worries about the impact of his upcoming sentencing hearing on himself and his family, i.e. Zoe with her mental health issues struggling to cope without him and the welfare of their two young daughters. He said, ‘I'm scared that if I go in [receives a custodial sentence] I won't see my kids again. I worked so hard to turn my life around. I was a stupid kid. I worked hard to stop this. I want to have something and make something of my life.’"

The grounds of appeal against conviction

123. Mr Nash, who appeared on behalf of the applicant, contended that leave was not required for any of the grounds of appeal against conviction. He submitted, in particular, that the question whether the tendency evidence was admissible was a question of law alone within the meaning of s 5 of the Criminal Appeal Act 1912 (NSW) and therefore did not require leave.

124. Mr Nash referred to AJ v R [2022] NSWCCA 136 at [88] where Beech-Jones CJ at CL held that a ruling that evidence is admissible, when it is inadmissible is a “wrong decision [on a] question of law” within the meaning of s 6(1) of the Criminal Appeal Act.

125. It is important to appreciate the difference between a “question of law” and a “question of law alone”.

126. This Court considered the distinction between a ground that involves a mixed question of fact and law on the one hand and a ground that involves a question of law alone in R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199. The Court’s consideration illustrates what distinguishes a question of law alone from other questions.

127. Relevantly, the grounds of appeal in R v PL were:

“2.   Whether his Honour erred in applying the following principles applicable to the directions of verdicts of acquittal:

(a)    That a circumstance cannot be rejected because it alone cannot lead to an inference of guilt.

(b)    That the prosecution does not have to exclude a hypothesis consistent with innocence.

3.   Whether his Honour erred in finding that it was necessary for the Crown, in order to establish that there was a case to answer, to identify a particular act on the part of the accused bringing about the injury which caused the death of the deceased.”

128. Ground 2 was held to involve a mixed question of fact and law. Spigelman CJ (McClellan CJ at CL and R A Hulme J agreeing) said at [26]:

“Even if his Honour erred in applying the correctly stated principle, that process necessarily encompassed an assessment of the facts. The process of ‘applying’ a legal principle to the facts of a case involves a mixed question of fact and law …”

129. By contrast, ground 3 was held to involve a question of law alone. Spigelman CJ said at [27]:

“… [T]he ground identifies, most clearly by the word ‘necessary’, a legal requirement of any Crown case of homicide. That, in my opinion, involves ‘a question of law alone’. This states a legal proposition which is a distinct and separate step in the reasoning process. In the same way as the interpretation of a statutory provision considered in JS. This legal proposition is logically anterior to its application to the facts of a particular case.”

130. R v PL was followed and applied by Beech-Jones CJ at CL (Walton and Price JJ agreeing) in Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [14]. While, as has been held in Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83 at [82] (Hamill J, Brereton and McCallum JJA agreeing), whether evidence is admissible is a question of law, it is not, on the basis of the reasoning in R v PL, a question of law alone.

131. A ruling on admissibility of evidence over objection involves, where a legal principle is involved, a question of law, but the question is not one of law alone. The other two grounds are in a similar category in that they involve questions of law for the purposes of s 6 of the Criminal Appeal Act but not questions of law alone for the purposes of s 5.

132. I regard each of the grounds raised as depending on the facts of the case. None is logically anterior to them. Thus, I consider leave to be required in respect of each of these. As I am satisfied that, for the reasons which follow, leave ought be granted in respect of each of the grounds, I do not consider it to be necessary to address in any further detail whether each of the grounds requires leave or amounts to a question of law alone.

Ground 1: alleged inadmissibility of tendency evidence

133. Mr Nash contended that Exhibit C was inadmissible on the following grounds:

1. it did not prove a relevant tendency; and

2. it lacked substantial probative value.

134. Thus, Mr Nash submitted that the evidence did not fall within s 97(1) because the evidence was not capable of proving that the applicant has or had a tendency to act in a particular way, or to have a particular state of mind. Further, he submitted that the evidence by itself or with other evidence adduced by the Crown, did not have “significant probative value”.

135. Mr Nash contended that Exhibit C did not support the relevant tendency because it lacked any material to support the tendency in (b)(i) of the notice (tendency to act on his sexual interest in female children under the age of 16 years who he knows to be under the age of 16 years) and, further, that it was not actually a tendency. He submitted that a single prior example of conduct could not constitute a tendency.

136. Before evidence is admissible under s 97(1) to prove that the applicant has or had a tendency to act in a particular way, or to have a particular state of mind, the court is required to be satisfied that the evidence will, by itself or taken with other evidence adduced by the party seeking to adduce it, have “significant probative value”. Section 101(2) provides that, in a criminal proceeding, tendency evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the defendant. The present appeal turns on s 97(1) rather than s 101(2).

137. In Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288, this Court (Beazley P, Hall and Wilson JJ) held, at [86], that it was not necessary for evidence to be admissible as tendency evidence, that the conduct be repeated so as to constitute a pattern. Rather, a single incident could have significant probative value if it was capable of providing foundation for the inference to be drawn that the accused has acted in a particular way on an occasion prior to that on which the offence charged occurred. I understood Mr Nash to accept that the evidence in Exhibit C was probative on the question whether the applicant had had sexual intercourse with the complainant (being the element common to the offence in count 1 and the offence in count 2). I did not understand it to be suggested by the Crown that the tendency evidence was relevant to the other two elements of count 1 (whether the complainant consented and the applicant’s state of mind as to whether the complainant consented).

138. The meaning of the word “significant” in the context of the expression “significant probative value” for the purposes of s 97 is to be answered by reference to what this Court (Simpson J) said in DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [180]:

“The foundation provided by the tendency evidence may be strong or weak, depending upon the nature of the evidence. The only qualification is that, to be admissible, its probative value must not be so weak as to be bereft of ‘significance’.” 

139. I consider that the agreed facts in Exhibit C are sufficient to support the tendency alleged, including (b)(i), as the applicant did befriend S and they did develop a relationship and did have sexual intercourse when S had, to the applicant’s knowledge, just turned 15. I consider there to be a relevant tendency in that not every 18 (in the case of the intercourse with S) or 19 year old male has a sexual interest in under-age (younger than 16) females. The tendency is not based on the age difference alone but also on the youth, immaturity and incapacity to consent, of the females.

140. Without such evidence, it might be difficult for the jury to believe that the applicant, aged 19, could have had a sexual interest in the complainant, aged 12 and act on it, that being improbable as a matter of human experience. However, the fact that he did have a sexual interest in S when she was 14 and acted on it by having sexual intercourse with her shortly after she turned 15 makes it more likely that the applicant had a sexual interest in the complainant and acted on it by having sexual intercourse with her when she was 12 and he was 19. The force of evidence such as this as tendency evidence was explained in Hughes v The Queen at [60] (Kiefel CJ, Bell, Keane and Edelman JJ) in the following terms:

“The force of the tendency evidence as significantly probative of the appellant’s guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.”

[Emphasis added.]

141. I regard the probative value of Exhibit C as significant. I am not satisfied that ground 1 has been made out.

Ground 2: alleged misconduct of prosecutor

142. There are three aspects to the applicant’s complaint about the prosecutor: his questioning of Crown witnesses; his cross-examination of the applicant; and the content of his final address.

163. Further, although KS said that he had told the applicant that the complainant was 16, the complainant herself had given evidence that she had told the applicant, some time earlier in 2015, that she was 12. The Crown was entitled, in these circumstances, to put to the applicant that he knew that the complainant was 12. It was also open to the Crown to put to the applicant, in effect, that he was using what KS had said to him about the complainant’s age to justify his allowing her to stay at his place and sleep in his bed. The prosecutor was entitled to challenge his evidence that he would not have allowed a 12-year old to stay. These matters all fell within the prosecutor’s obligation to put the Crown case and to challenge the applicant’s evidence, to the extent to which it was inconsistent with the Crown case.

164. The applicant’s trial counsel was well aware of the procedural history to the matter and, as the narrative above sets out, raised the issue of the applicant’s fitness for trial. He knew that the applicant’s condition was being controlled with medication and asked that he give his evidence in the morning because that was a better time for him. This application was acceded to. Had he considered that the applicant was at a disadvantage in this respect, it would have been open to him to apply for an adjournment in the absence of the jury.

165. By raising the issue of the applicant’s demeanour in the Crown closing address, the prosecutor was appropriately affording natural justice to the applicant. The jury were given directions about assessing credibility and told to observe the way witnesses gave their evidence. Further, the Crown had to raise demeanour so that the jury would know what the Crown said about the applicant’s demeanour. It was reasonable for the Crown to anticipate that it would be raised by the defence and appropriate for the Crown to raise it in order that the defence could respond to it.

166. I do not consider the prosecutor’s use of the words, “we” and “us” as improper. There are various ways in which an advocate (whether for the Crown or for the defence) can communicate with the jury about answers given by a witness. Instead of saying, “you’re saying X”, the advocate could say, “you’re telling the Court X” or “you’re telling the jury X”, or, as in the present case, “you’re telling us X”. The personal pronoun, “me”, is rarely used because the jury is the relevant tribunal and, thus, although the answer is given to the advocate’s question, the trier of fact is the jury. Thus, the answer becomes evidence which the jury can take into account in its deliberations. I do not consider that, by using the words “we” and “us”, the prosecutor was trying to align, or ingratiate, himself with the jury. It was simply a turn of phrase which was designed to indicate that, although the prosecutor was asking the question, the answer was to be taken into account by the jury as a whole as well as the judge, for the purposes of the conduct of the trial generally and the summing up.

167. As the transcript extracts set out above indicate, there is a degree of looseness and repetition in some of the prosecutor’s questions which may have been a product of fatigue or lack of confidence that the point had already been made. Trials are dynamic and make substantial demands on counsel, particularly during cross-examination and final address. I do not regard these matters as affecting the fairness of this trial in any material way. This is particularly so as the applicant was acquitted of count 1, which was the count to which consent, and the applicant’s mental state as to the complainant’s consent were germane.

168. For these reasons, I am not persuaded that ground 2 has been made out.

Ground 3: alleged unreasonable verdict

170. The applicant submits that the verdicts were unreasonable on the following bases:

1. the prosecutor:

1. focussed on count 1 and did not address on count 2; and

2. closed on the applicant’s knowledge (as opposed to recklessness) of the complainant’s lack of consent;

2. there was no basis in the evidence to find the applicant guilty of count 2 because if the jury doubted the complainant’s evidence about consent, they must have entertained a doubt about the sexual intercourse having occurred; and

3. there were significant inconsistencies within the complainant’s account and between the complainant’s account and the complaint witnesses’ evidence such as to make the verdict unreasonable on the basis considered in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.

171. The principles which apply in determining whether a verdict of guilty is unreasonable were summarised by Johnson J (Cavanagh J agreeing) in Khorami v R; R v Khorami [2021] NSWCCA 228 at [140]-[146]. It is not necessary to repeat them. In essence, the question for this Court is whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of the offence of which the jury found him guilty.

172. Because ground 3 was put on different bases, it is necessary to address them in turn.

Whether the Crown was entitled to limit its case on count 1 to knowledge as opposed to recklessness

173. It was open to the Crown to address the jury on the basis of the more demanding standard of knowledge rather than recklessness in terms of the mental element of count 1. This was to the advantage of the applicant since, had the jury been satisfied that the applicant was reckless as to the complainant’s consent, the jury would have returned a not guilty verdict. By contrast, had the prosecutor addressed on knowledge and recklessness, the jury would have been obliged to convict if they were satisfied of recklessness but not knowledge.

174. This approach had potential advantages for the Crown on sentence since, had the applicant been convicted on count 1, he would have been sentenced on the basis that he knew that the complainant was not consenting, this being the only basis on which count 1 was put to the jury: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung).

Whether the verdict on count 2 was unreasonable in circumstances where the Crown had not addressed on count 2

175. The Crown has a right to allege alternative counts on an indictment: s 23(3) of the Criminal Procedure Act 1986 (NSW). There is no basis in the present case for any suggestion that the Crown did not press count 2 on the indictment (of which each juror was given a copy). It was plainly in issue in the course of the trial. The complainant was 12 years old at the time the applicant is alleged to have had sexual intercourse with her. If the jury was not satisfied of the elements of count 1, but satisfied that the intercourse occurred and of the applicant’s state of mind about the complainant’s age, the jury was obliged to return a guilty verdict in respect of count 2. In the circumstances of the present case, it was not necessary for the Crown to separately address count 2, which was, in substance, subsumed within count 1 but did not require the same mental element as count 1.

176. The trial judge gave directions to the jury about each of the two counts and identified the elements of each count. Her Honour told the jury that if they were not satisfied that the applicant was guilty of count 1, they should proceed to consider count 2. Her Honour’s directions, which were not the subject of objection at the time or challenge before this Court, included the following:

“Count 1, sexual intercourse without consent in circumstances of aggravation. Members of the jury, that is just a short way of referring to the charge. It is just a heading for convenience sake. The law provides that it is an offence for a person to have sexual intercourse with another person without the consent of the other person, knowing that the other person does not consent and in circumstances of aggravation. The essential elements of the offence are element 1, the accused had sexual intercourse with another person, [the complainant]; element 2, without her consent; element 3, knowing that she did not consent; element 4 in circumstances of aggravation, namely that at the time of the sexual intercourse the other person, [the complainant], was under the age of 16 years, namely 12 years. The Crown must satisfy you beyond reasonable doubt of each of these four elements before you may find the accused guilty of the offence charged.

Alternative to count 1, count 2. Sexual intercourse - child between ten and 14. Again, members of the jury that is just a convenient heading. The law provides that it is an offence for a person to have sexual intercourse with another person who is of or above the age of ten years and under the age of 14 years.

The essential elements of the offence are element 1; the accused had sexual intercourse with another person, [the complainant], and element 2, at the time of the sexual intercourse, [the complainant] was above the age of ten years and under the age of 14 years, namely 12 years. And, element 3. The accused either (a) did not honestly believe that the complainant was 16 years of age or (b) had no reasonable grounds for believing that the complainant was 16 years of age. The Crown must satisfy you beyond reasonable doubt of each of these elements before you may find the accused guilty of the offence charged.

Now, members of the jury, I just want to give you a direction about the fact that there is an alternative count on the indictment. Count 2 is charged in the alternative to count 1. It is a matter for you how you approach your task in determining the verdict to give on the principal charge, count 1 in the indictment and the alternative charge count 2, available for your consideration.

Of course, if you are not satisfied that the Crown has proved beyond reasonable doubt all the necessary elements of the principal offence, count 1, then you must find the accused not guilty of that charge. You may then consider whether the Crown has proved beyond reasonable doubt all the necessary ingredients of the alternative charge count 2, which is set out on the indictment.”

177. I am not persuaded that the verdict of guilty of count 2 can be impugned by reason of the circumstance, which was understandable in the present case, that the Crown did not specifically address on count 2. One might ask rhetorically what the Crown would have said about count 2 other than to paraphrase what the prosecutor could reasonably have expected the trial judge to say, in the form of directions, about the jury’s consideration of count 2, if they were not satisfied of the applicant’s guilt of count 1.

Whether the verdict on count 2 was unreasonable on the basis that the jury must have entertained a doubt regarding the complainant’s evidence to return a not guilty verdict on count 1

178. Mr Nash submitted that the verdict of not guilty of count 1 was explicable on the basis that the jury did not accept the complainant’s evidence that she did not consent to the act of sexual intercourse. He submitted that if the jury entertained a doubt about this aspect of the complainant’s evidence, the jury ought to have entertained a doubt as to whether the sexual intercourse occurred at all and, thus, the verdict in respect of count 2 was unreasonable.

179. I do not accept this analysis. Although Mr Nash ultimately accepted that the verdict of not guilty on count 1 was not inconsistent with the verdict of guilty on count 2 (an inevitable concession given that count 2 was an alternative charge), it does not follow from the not guilty verdict on count 1 that the jury had any doubt about the complainant’s evidence.

180. The verdict of not guilty on count 1 was consistent with the jury accepting the complainant’s evidence that:

1. the sexual intercourse had occurred; and

2. that the complainant did not consent to the sexual intercourse

but not being satisfied beyond reasonable doubt that:

3. the applicant knew that the complainant did not consent.

181. Element (3) required the jury to consider the applicant’s state of mind, which could not be determined by their acceptance of the complainant’s evidence. Thus, a verdict of not guilty on count 1 does not lead to an inference that the jury had any doubt about the complainant’s evidence. Indeed, the guilty verdict on count 2 indicates that the jury accepted the complainant’s evidence that there had been sexual intercourse. It also tended to suggest that the jury accepted her evidence that she had told the applicant that she was 12 and thus, it was not reasonable of the applicant to rely on KS’s statement to him that she was 16.

Inconsistencies in the evidence

182. Mr Nash also submitted that there were several unsatisfactory aspects to the complainant’s evidence which meant that she could not reasonably be accepted as a credible witness. He relied on the following:

1. the substantial period of time the complainant spent at the applicant’s home the day after the alleged offence;

2. inconsistencies in the evidence about the persons to whom she disclosed the sexual contact and when such disclosures occurred:

1. in her first interview she said that she told her father on 18 June 2015 but her father’s evidence was that he was not told until some days later;

2. the complainant said that she had not told the police at Mount Druitt Police Station because she sensed that Dina and Sally had not believed her when she had told them but Sally did not see the complainant until after she had already been to the police station with Dina and Dina’s aunt (as Sally was coming from Taree and had not yet arrived);

3. in her pre-recorded evidence, the complainant said that she told Sally as soon as Sally arrived which led to Sally arranging for the complainant to go to the doctor;

4. Sally’s evidence was that “[it was] really hard for [the complainant] to talk, but she slowly started letting things out” and “it was in slow words and not saying what she should have been saying”. Sally said that “finally after she spoke to me, she said that someone sexually touched her”;

5. KS’s evidence was that the complainant had told him that the applicant had got her drunk and then had sex with her;

6. the complainant’s evidence that the impetus for her formal complaint was the Facebook friend request from the applicant and his partner in 2017 and that she had shown the request to Ms Boyall when making the disclosure on 7 June 2017 (which was denied by Ms Boyall);

7. the applicant tendered evidence that the complainant had sent him a friend request on Facebook;

8. the complainant initially said that that she had no contact with the applicant after leaving his home on 18 June 2015 but subsequently acknowledged that she had regularly tried to contact him by phone before his number was disconnected; and

9. the complainant told her mother and police that she had feelings for the applicant and that she wanted to protect him;

3. Other evidence which made the complainant’s evidence objectively unlikely, such as the applicant’s brother’s evidence that he had not heard any cries of “Stop” (or similar) coming from the applicant’s room that night and that the complainant had not appeared distressed the following morning.

183. I do not regard the matters raised by Mr Nash as materially bearing on the complainant’s credit to the point that it can be inferred that a reasonable jury must have had a doubt about her evidence.

184. The jury was, appropriately, directed that they could accept part of a witness’ evidence and reject, or not accept, other parts. The details of whom the complainant told and when, were, in the context of the charged offence itself, relatively peripheral. It was open to the jury to accept Sally’s evidence that the complainant had difficulty revealing what had happened but eventually disclosed enough to Sally to lead Sally to realise that the complainant should have a STI test and a pregnancy test. Although the precise timing of that disclosure is not known, it occurred within a day of the alleged offence and not long after Sally arrived from Taree to see the complainant, having made the trip because of her concern for her sister.

185. Further, KS’s evidence that the complainant told him, not long after the event, that the applicant had got the complainant drunk and had sexual intercourse with her may also have influenced the jury to be satisfied that it had actually happened, as the complainant had described it.

186. In her evidence about trying to get in contact with the applicant, the complainant explained that she felt that she had to apologise for the police coming to his place and tell him that she was not the one who had caused that to happen. Further, the jury might have regarded the following pre-recorded evidence on 4 September 2019 as bearing on the question of her judgment about the applicant:

“… the way that me and [the applicant’s] relationship was that I had a lot of trust in everything that he would say so if he thought that it was okay to do what he did then even if he was 17 in my head it was - it's just what happens, that's just what relationships are like.”

187. The jury might have been impressed by the complainant’s naiveté, as illustrated by her evidence that she had never been kissed before and therefore did not know what to do when the applicant started to kiss her. Her evidence, including the passage set out above, indicated that she had no real idea about what the physical aspect of a “relationship” entailed.

188. The jury may have regarded the applicant’s brother’s evidence as being affected by their relationship and may have regarded the applicant’s brother’s evidence about not hearing the complainant saying “Stop” as unreliable on that basis, or on the basis that the complainant said it but that he did not hear it from his bedroom.

189. As to the question of who initiated the Facebook friend request, the complainant or the applicant’s girlfriend, it was open to the jury to accept the complainant’s evidence that she had several Facebook accounts and had been locked out of several because they had been hacked. In these circumstances, the jury might have regarded the Facebook friend request which had apparently come from the complainant to the applicant (which was tendered in the applicant’s case) as unlikely to be genuine.

190. For the reasons given above, ground 3 has not been made out. I consider that it was open to the jury on the whole of the evidence, including the evidence relied on by Mr Nash as being inconsistent, to be satisfied of the applicant’s guilt of count 2 beyond reasonable doubt.

The ground of appeal against sentence: alleged erroneous factual basis for the sentence

191. As ground 4 is so confined, it is not necessary to summarise the proceedings on sentence or the reasons for the sentence. It is necessary to address only the submissions on the relevant factual finding and her Honour’s reasons for making that finding. Ground 4 is closely related to ground 2.

192. Judge Woodburne SC was the trial judge and the sentencing judge. There was no additional evidence on the proceedings on sentence which was germane to the finding of the circumstances of the offence under count 2, for which the applicant was to be sentenced.

The proceedings on sentence

193. The Crown relevantly submitted, in writing that the following ought form the basis for the sentence to be imposed on the applicant for count 2, as it was the complainant’s evidence, which the jury accepted:

“At around half time of the State of Origin the victim said to the offender that she wanted to go to bed. The two had previously discussed sleeping arrangement, with the offender having told the victim that she could sleep in his bedroom and he would sleep in the lounge room. The victim went to the offender’s room and laid on the bed. Less than a minute after the victim laid down, the offender entered the bedroom, closing the bedroom door behind him, which was secured with a red locking device.

The offender put on loud music, played from his computer, before laying down next to the victim. After laying next to her for a short while, the offender straddled the victim and pinned her arms against the bed. The offender then removed his trousers, before using one hand to pull down the victim’s tights. As he continued to hold the victim down, the offender inserted his penis into the victim’s vagina. As the offender did this, the victim said ‘this really hurts, you need to stop’.

The offender continued to engage in sexual intercourse with the victim, saying ‘It’ll feel better after. It’s all right, it’s all right’. The victim again told the offender that it really hurt and to get off her. As she said this she was pushing the offender’s shoulders away from her, but was unable to push him off. The victim lay crying as the offender continued to have sexual intercourse with her.”

[Footnotes omitted.]

194. The Crown submitted further:

“10   The offender gave evidence of the alternate scenario, wherein no sexual activity occurred with implied drift in his evidence that [the complainant] was a willing participant. The jury rejected that account. Had the jury entertained it as a reasonable possibility, the offender would have been acquitted of both counts.

11   The immateriality of the substantive issue of consent on count 2, discounts the import of the acquittal on count 1 upon on the principles that ordinarily apply to sentencing of the instant offence.

12    The verdicts are clearly reconcilable. The corollary of the jury upon accepting the above quoted passages of evidence, was that it was open to entertain doubt as to the accused’s state of mind that was a necessary element in satisfaction of count 1.”

195. The applicant’s counsel responded to these submissions in the proceedings on sentence as follows. He submitted that it was significant that the prosecutor had not closed on count 2. He said that the Crown case for count 1 was based on the complainant’s accuracy and reliability and noted that the jury did not find him guilty of count 1. Thus, he submitted on sentence that the sentencing judge was left with the jury finding the applicant guilty of intercourse with a 12-year old, “but not against her will”. He submitted that the two verdicts were irreconcilable.

The sentencing judgment

196. Her Honour addressed the issue referred to above as follows in the sentencing judgment:

“In making the findings I have, I have not overlooked the submissions of Mr Williams of counsel who took issue with the proposed findings in relation to the act of sexual intercourse and the circumstances in which it took place.

Very shortly stated, it was submitted the facts for Count 2 have to be looked at in light of the acquittal on Count 1 and ‘to say there was no consent, that is not in accordance with the verdict of the jury’ (POS 25 May 2021 T.22.28).

As to what facts should be found it was submitted, ‘That they were there and had sexual intercourse’. It was submitted, that in light of the way the Crown put its case and the verdict of ‘not guilty’ on Count 1, that in respect of the act of sexual intercourse the finding should be that Mr Krojs had sexual intercourse with the victim ‘simpliciter’ and that it was not against [the complainant's] will (POS 14 July 2021 T.25.17).

I have firmly kept in mind that the offender does not stand to be sentenced for the significantly more serious offence of sexual intercourse with a child then above the age of ten years and under the age of 14 years, without the consent of that child knowing that the child does not consent.

However, the verdict of not guilty on Count 1 does not either warrant or require the Court to proceed on the basis that the victim's evidence as to the lack of consent was rejected by the jury. Moreover, the verdict of ‘not guilty’ on Count 1 does not either warrant or require the Court to proceed on the basis that the only finding that can be made in relation to the act of sexual intercourse and the circumstances in which it was committed is that the offender and the victim were present and sexual intercourse occurred. Further, the verdict of ‘not guilty’ on Count 1 does not either warrant or require the Court to find that the sexual intercourse was not against the victim's will.

For reasons set out in the judgment to be given on the application for appeal bail, the verdict of not guilty on Count 1 does not mean that the jury did not find the victim to be an honest and reliab[le] witness. The verdict of the jury is readily explicable on the basis that the jury was not satisfied beyond reasonable doubt that the accused actually knew that [the complainant] was not consenting to the sexual intercourse.

In such circumstances it is not appropriate to find simply that there was sexual intercourse. The circumstances of that sexual intercourse must be taken into account. There was, I am satisfied, a degree of physical coercion and pressure and attempted persuasion involved, that is, not to suggest that there was additional nonsexual violence, that is violence in the way it may be commonly understood or indeed ‘according to the manual’ (evidence of Dr Furst p 15, Transcript 21 May 2021).

The verdict of not guilty on Count 1 does not require the Court to find the opposite of the evidence given by the complainant as to the circumstances in which the sexual intercourse occurred. Those circumstances, as I have said, involved a degree of physical coercion and pressure and attempted persuasion. The verdict of not guilty on Count 1 does not require the Court to find the opposite of the evidence given by the complainant, namely, that she did not want Mr Krojs to put his penis in her vagina. The verdict of not guilty on Count 1 does not require the Court to find that such sexual intercourse was not against the child's will. Such findings would be contrary to the facts that I am satisfied are established beyond reasonable doubt by the evidence upon the basis of what I am satisfied was the honest and reliable evidence given by the victim.”

Consideration of ground 4

197. In R v Isaacs (1997) 41 NSWLR 374 (Isaacs), this Court (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ), at 379-380, overturned authorities which had sanctioned the questioning of juries as to the basis of their verdict. Their Honours, at 378, identified the following principles, which were said to apply not only to manslaughter (the relevant offence in Isaacs) but also to other offences:

1. it was for the judge to find the facts which are material to the exercise of the sentencing discretion, so long as the facts were consistent with the jury’s verdict (following Savvas v The Queen (1995) 183 CLR 1 at 8 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1995] HCA 29).

2. the sentencing judge is not required to sentence the offender on the basis of the view of the facts which is most favourable to the offender but must be satisfied of those matters which were to be taken into account adversely to the offender, beyond reasonable doubt: see also The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [25] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

198. The Court in Isaacs held that the sentencing judge’s task was not to determine the basis on which the jury had found the appellant guilty of manslaughter, but rather to find the facts which were material to sentencing, consistent with the jury’s verdict of manslaughter.

199. These principles were confirmed and applied by the High Court in Cheung. The appellant in Cheung was charged with being knowingly concerned in the importation of almost 50kg of heroin. An accomplice gave evidence that the appellant had been involved in the planning, implementation and importation over a period of about nine months. The appellant was sentenced on the basis of the accomplice’s evidence of his greater involvement. The appellant appealed on the basis that the judge was obliged to sentence on the basis of a view of the evidence which was most favourable to him.

200. When addressing the duties of the sentencing judge, the plurality (Gleeson CJ, Gummow and Hayne JJ) said at [5]:

“The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and in so far as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace.”

201. The principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni) is also significant. It is that an offender is to be punished only for the offence of which he or she has been convicted and not for other acts which are not the subject of the verdict which could have constituted a more serious offence: at 389 and 392 (Gibbs CJ, Mason and Murphy JJ agreeing).

202. In the present case, the sentencing judge, for reasons given in her sentencing judgment, sentenced on the basis that the sexual intercourse was the result of physical coercion and pressure. Her Honour was entitled to do so as long as:

1. the finding was consistent, and not inconsistent, with the jury’s verdicts;

2. the finding did not breach the De Simoni principle; and

3. it was open to her Honour to make that finding beyond reasonable doubt (it being a finding adverse to the applicant).

203. The finding that the sexual intercourse was forceful in circumstances where the complainant did not consent to sexual intercourse was not inconsistent with the verdict of not guilty of count 1. All that can be said with confidence about the verdict of not guilty of count 1 is that, although the jury was satisfied that the applicant and the complainant had sexual intercourse (that being an element of count 2), the jury was not satisfied that the applicant knew that the complainant did not consent. Thus, a finding that the complainant did not consent to sexual intercourse and that the intercourse was forceful is consistent, and not inconsistent, with the verdict of not guilty on count 1. As consent and knowledge of consent are not elements of count 2, these findings are consistent with, and not inconsistent with, the verdict of guilty in respect of count 2.

204. The finding that the sexual intercourse occurred without the complainant’s consent and was forceful does not breach the De Simoni principle since those facts, without more, do not bring the offence into the more serious category of an offence of aggravated sexual assault under s 61J of the Crimes Act (which carries a maximum penalty of 20 years’ imprisonment). The reason for this is that it does not import any finding about the applicant’s state of knowledge about whether the complainant consented.

205. The finding made by her Honour was open as the complainant gave evidence to that effect, which her Honour accepted to the requisite standard. As the plurality said in Cheung in the passage extracted above, this is a matter of potential importance to an assessment of the offender’s culpability which can be the subject of judicial determination as part of the sentencing role.

206. For these reasons, ground 4 has not been made out.

Proposed orders

207. For the reasons given above, I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

208. WRIGHT J: I agree with Adamson J.

209. FAGAN J: I agree with Adamson J.

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Amendments

30 September 2022 - Typographical error corrected - headnote

Decision last updated: 30 September 2022