Lazarus v R

[2016] NSWCCA 52

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Lazarus v R [2016] NSWCCA 52
Hearing dates:	19 February 2016
Decision date:	12 April 2016
Before:	Hoeben CJ at CL at [1] Adams J at [5] Fullerton J at [18]
Decision:	1. Leave to appeal granted. 2. Appeal allowed. 3. Conviction quashed. 4. Order a new trial.
Catchwords:	CRIMINAL LAW – appeal against conviction – sexual intercourse without consent – whether verdict of the jury was unreasonable – adequacy of trial judge’s directions as to the legal test in s 61HA(3)(c) of the Crimes Act
Legislation Cited:	Crimes Act 1900 (NSW), ss 61HA(3), 61I Criminal Appeal Act 1912 (NSW), s 6(1)
Cases Cited:	Gilham v R [2012] NSWCCA 131; 224 A Crim R 22 Kurdi v R [2011] NSWCCA 179 M v R [1994] HCA 63; 181 CLR 487 O'Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45 SKA v R [2011] HCA 13; 243 CLR 400 Viro v R [1978] HCA 9; 141 CLR 88
Category:	Principal judgment
Parties:	Luke Andrew Lazarus (Appellant) The Crown (Respondent)
Representation:	Counsel: T Game SC / D Barrow (Appellant) N Adams (Crown)   Solicitors: Back Schwartz Vaughan Lawyers (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2013/242040
Publication restriction:	Statutory non-publication order re identity of complainant
Decision under appeal	Court or tribunal: District Court Date of Decision: 9 February 2015 Before: Huggett DCJ File Number(s): 2013/242040

Judgment

1. HOEBEN CJ at CL: I have read with gratitude the judgments of Adams J and Fullerton J. I particularly appreciate the detailed and comprehensive analysis of the evidence by Fullerton J. The difference between the approach followed by each of their Honours is conveniently set out by Adams J in para [11]. Adams J has approached Ground 1 on the basis that it must be considered on the assumption that the trial judge’s direction was correct. Fullerton J has approached the matter on the basis that the correct (as this Court has determined) direction was given.

2. As their Honours have made clear, the outcome is the same whichever approach is followed. In my opinion, this case factually is not a good vehicle to decide the issue which has been raised. Speaking for myself, I have doubts as to whether the correct approach under s 6(1) of the Criminal Appeal Act 1912 (NSW) with respect to Ground 1 is to make an assessment of the evidence on the assumption that the trial judge’s direction was correct in circumstances where this Court has decided that such was not the case. Since the result is the same, whichever approach is followed, I prefer not to express a final view on the matter.

3. Accordingly, I agree with their Honours that Ground of Appeal 1 has not been made out. I agree with their Honours that Ground of Appeal 2 has been made out as discussed by Fullerton J. I agree, for the reasons set out by Adams J, that the correct application of s 8(1) of the Criminal Appeal Act requires that there be a new trial.

4. For those reasons, I agree with the orders proposed by Fullerton J.

5. ADAMS J: As Fullerton J has pointed out, at the close of the hearing of the appeal, the Court stated its conclusion that Ground 2 should be upheld and reserved its position on Ground 1. The appellant contended under that ground that the verdict “is unreasonable or cannot be supported having regard to the evidence”, relying on s 6(1) of the Criminal Appeal Act 1912 (NSW). Fullerton J has concluded, in substance, that it was open for the jury to conclude beyond reasonable doubt both that the complainant had not consented and, at least, that it was not reasonably possible that the appellant was not reckless as to whether she had consented or not (thus not needing to consider whether he mistakenly believed on reasonable grounds she was consenting), hence that the verdict was not unreasonable or unsupported by the evidence. It followed, therefore, that the appropriate orders are that the conviction should be quashed (Ground 2 having been upheld) and a new trial ordered. I agree with these orders but have arrived at that conclusion by a somewhat different route.

6. The issue to be determined under Ground 1 is whether it was open to the jury to conclude beyond reasonable doubt that the elements of the offence had been proved. There was no dispute about whether penile/anal intercourse occurred. This left the question of consent which, essentially, comprised two questions: firstly, whether the evidence proved that there was no reasonable possibility that the complainant consented to the alleged intercourse; and, secondly, whether it was not reasonably possible that the appellant did not know the complainant was not consenting. Section 61HA(3) of the Crimes Act 1900 (NSW) applied in this case to enable the Crown to establish the latter element by proving either that the appellant actually did know the complainant was not consenting or was reckless as to whether she was consenting or not or had no reasonable grounds for believing (if it were reasonably possible that he did so) that she was consenting (the Ground 2 issue). For the reasons explained by Fullerton J, the Court concluded that the direction given by the learned trial judge erred in instructing the jury – having dealt with recklessness – that, if it considered that the complainant’s actions “caused a belief in the mind of the the appellant that she was consenting to penile/anal intercourse with him and you consider that such a belief was a reasonable one”, the Crown had not proved the requisite knowledge; this significantly departed from the statutory test, which (in the event that there was a reasonable possibility that the appellant believed the complainant was consenting) required proof that there were no reasonable grounds for believing the complainant had consented. (I mention, in the interests of completeness, that s 61HA(3)(c) does not require that the reasonable grounds must be caused by a complainant’s actions but simply that they be present. However, this distinction was not material in the circumstances of this case and was not the subject of argument. I say no more about it.)

7. The need to consider Ground 1 arises from the possibility that the Court’s conclusion about Ground 2 might be mistaken and ought not to have allowed the appeal on that ground. For this reason, Ground 1 must be considered on the assumption that the trial judge’s direction was correct. It is not necessary, indeed in principle it is impossible in my respectful view, to consider the propriety of the verdict upon the assumption that the correct (as the Court determined) direction was given, essentially because ex hypothesi the jury’s verdict was not and could not have been based upon it.

8. In SKA v The Queen [2011] HCA 13; 243 CLR 400 the Court described the task of the Court of Criminal Appeal in respect of a s 6(1) ground as follows (footnotes inserted into text) –

[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen [(1994) 181 CLR 487 at 493; [1994] HCA 63.3] by Mason CJ, Deane, Dawson and Toohey JJ:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".

[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at 623-624 [58]; [2002] HCA 53.4, McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'”.

[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses (M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ). However, the joint judgment in M went on to say (M v The Queen (1994) 181 CLR 487 at 494):

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred”.

Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.

[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality" (Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 473 per Deane, Toohey and Gaudron JJ; [1987] HCA 50. In M, Mason CJ, Deane, Dawson and Toohey JJ stated (M v The Queen (1994) 181 CLR 487 at 492-493 (footnotes omitted):

"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."

9. The import of the requirement that the Court must make its independent assessment of the evidence was clearly stated when dealing with the approach taken in the case under appeal when their Honours stated –

[20] The reasoning of the Court of Criminal Appeal exposes a fundamental problem with its approach to its task. The Court concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence. … The reasons … indicate that … [the Court] considered what should have been the central question – whether on the evidence the Court was satisfied that the applicant was guilty of the offences – as rather an ancillary question to the question whether there was a sufficiency of evidence to sustain the conviction. … [Emphasis added.]

10. Where the evidence is conflicting and depends on accepting or rejecting the whole or part of a witness’ evidence, it will almost always be the case, as it seems to me, that – except for those circumstantial cases where objective evidence is determinative – the transcript will not provide a sufficient basis for a conclusion beyond reasonable doubt, quite apart from any inherent weaknesses that the evidence might itself demonstrate. The reference to the doubt that might be experienced by an appellate court necessarily involves the independent consideration by the court of the evidence. The question whether the court of appeal is satisfied that the appellant is guilty of an offence may therefore (and most often will) resolve itself into the question whether, where the evidence before the court comprises transcript of contested evidence as the only or principal basis for determination, the ensuing doubt is allayed by the jury’s advantage in seeing and hearing the witnesses. Characterising the task required by Ground 1 as ascertaining whether it was open to the jury to convict is thus not quite so simple as the phrase suggests.

11. In this case the Court has concluded that the verdict cannot stand because of the misdirection as to a fundamental element of the offence, namely as to whether the appellant knew that the complainant had not consented to anal intercourse. As to that issue, therefore, there has been no decision by the jury to which the Court can defer to resolve any doubt that it might have about whether this this element were proved. Given the verdict, it is clear that the jury concluded beyond reasonable doubt that the complainant had, indeed, not consented. But this conclusion would not have required the jury to have accepted as reliable the whole of the complainant’s evidence about what actually occurred including, in particular, the extent to which she might have given the appellant to understand that she was not consenting or the extent to which what happened had or might have conveyed that message. Nor can this Court act on the basis of any such assumption. In addition, there was evidence (as set out in Fullerton J’s judgment) that justified the conclusion that the complainant was “substantially intoxicated” within the meaning of s 61HA(6)(a) and thus had not consented, whatever her conduct might have been or have suggested and it cannot be known whether this aspect of the evidence led the jury, or some of them, to conclude that the complainant had not consented and thus to avoid the necessity of deciding to what extent her account of what happened was reliable. Accordingly, the verdict provides no information about the intermediate findings of fact, even on the element of consent.

12. The same is true of the issue of knowledge of consent, with the additional problem that the jury were (as we have held) misdirected as to one of the alternative bases for holding that he knew the complainant had not consented. Although it is true that there was no misdirection on the issue of recklessness, it cannot be known whether the jury found that the Crown had proved he had been reckless as distinct from concluding (in line with the impugned direction) that it was not reasonable to think that she was consenting. Of course, this was an issue, the sub-elements of which did not require unanimity. It follows that the issue of recklessness is not informed at all by the jury’s verdict. On this question, as Fullerton J has shown, there were conflicting accounts of the complainant and the appellant as to what had occurred, as well as the appellant’s evidence as to what he believed and why he believed it. In my view, the relevant issues cannot be decided by the Court – certainly beyond reasonable doubt – by considering the transcripts of evidence. Given the impenetrability of the verdict, it cannot be known whether the jury had found it necessary even to consider the issue of recklessness, let alone what conclusions they or some of them might have reached. It follows that a doubt which the Court might have (as I have explained, must have) cannot be resolved by considering the verdict and the advantage the jury had in seeing and hearing the witnesses. Thus, the Court cannot (in the language of the majority in SKA at [20]), be “satisfied that the applicant was guilty of the [offence]”; in other words, if it approaches Ground 1 on the basis that the direction as to consent was correct, it must then have a doubt about guilt and that doubt cannot be resolved by reference to the jury’s advantage in seeing and hearing the witnesses. Nor, in my respectful opinion, can Ground 1 be disposed of by any conclusion that it was open to the jury to find that there was no reasonable possibility that the appellant was reckless as to whether the complainant consented or not. That it was so open is only true in a general sense but not in the sense that the test is to be understood in light of the authorities and SKA in particular. The same reasoning applies to the second possibility that there were no reasonable grounds for believing the complainant was consenting to intercourse, with the additional factor that it is known that the jury did not consider this question but the different question posed by the impugned direction.

13. Accordingly, in my respectful opinion, this Court should approach Ground 1 on the basis that, as its conclusion about Ground 2 might be held to be wrong, it needs also to decide Ground 1 to enable disposition of the entire appeal. With respect, as a matter of principle it is incorrect to ask (in this case) whether it would have been open to the jury to convict had the direction accorded with the Court’s view of s 61HA(3)(c), in short, to ask whether there was evidence that justified the conclusion that there were no reasonable grounds for believing, albeit mistakenly, that the complainant was consenting to intercourse, let alone whether it was open to the jury to conclude that the complainant was reckless as to whether the complainant was consenting: these are not and do not inform the issues posed by Ground 1, since the verdict cannot inform those questions. As I stated at the outset, I respectfully consider that correct question is whether, assuming the impugned direction to have been correct, the verdict was unreasonable or unsafe according to the evidence or, in the refined sense to which I have referred, whether the verdict was open to the jury or it ought to have had a reasonable doubt about the appellant’s guilt.

14. I respectfully agree with Fullerton J that the verdict was not unreasonable or unsafe, for reasons which may (her Honour having helpfully set out the evidence and dealt with the submissions) be shortly stated.

15. The fundamental question is whether the complainant could be believed. For the reasons expressed by Fullerton J I agree that this should be answered in the affirmative. It is fair to say that there were some weaknesses in her evidence, possible questions about her reliability in some respects and ambiguities about her conduct. However, these do not by any means suffice to justify the conclusion that a jury could not accept her as a reliable and truthful witness in respect of the matters which the Crown needed to prove beyond reasonable doubt before the appellant can be convicted. Obversely, although the appellant was capable of belief, whether he should have been believed or his evidence raised a reasonable doubt about any of the elements of the charge was very much a matter for the jury. The criticisms which have been levelled at the complainant’s evidence, though not unreasonable of themselves and capable of being regarded as significant, are not such that it should be concluded that the jury ought to have entertained a reasonable doubt about the appellant’s guilt. The assessment of the concessions made by the complainant in her evidence, which have been identified by Fullerton J, depends a great deal on the manner in which they were made and apparent contradictions denied or explained. Such a judgment was well within the province of the jury to make and, taking these matters both individually and overall, I would not conclude they were such as ought to have given rise to a reasonable doubt about the appellant’s guilt. Very much depended on the judgment made of the respective credibility of the complainant on the one hand and the appellant on the other and, to my mind, the jury’s advantage in seeing and hearing them give evidence about the issues raised on the appellant’s behalf and which Fullerton J has identified resolves the doubt that I would otherwise have had about the latter’s guilt.

16. It was conceded on the appellant’s behalf that, if he succeeded on Ground 2 but not on Ground 1, the appropriate order is that there should be a new trial in accordance with s 8(1) of the Criminal Appeal Act. In Gilham v R [2012] NSWCCA 131; 224 A Crim R 22, McCellan CJ at CL usefully and uncontroversially (though his Honour dissented as to other matters) summarised the matters to be considered under s 8(1) (references omitted) -

[649] … The overriding consideration is whether the interests of justice require a new trial … Unless the interests of justice require the entry of a verdict of acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge … The court determines where the interests of justice lie by considering various factors, including [numbered for convenience]:

(i)   the public interest in the due prosecution and conviction of offenders … ;

(ii)    the seriousness of the alleged crimes … ;

(iii)     the strength of the Crown case … ;

(iv)   the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury, which, according to the constitutional arrangements applicable in New South Wales, is the appropriate body to make such a decision … ;

(v)   the length of time between the alleged offence and the new trial, and in particular whether the delay will occasion prejudice to the accused … ;

(vi)   whether the grant of a new trial would impermissibly give the prosecution an opportunity to supplement or "patch up" a defective case or to present a case significantly different to that presented to the jury in the previous trial … ;

(vii)   the interests of the individual accused, and in particular whether it would be unduly oppressive to put the accused to the expense and worry of a further trial … ;

(viii)   whether a significant part of the sentence imposed upon conviction has already been served … ;

(ix)   the expense and length of a further trial … ;

(x)   whether a successful appellant to the Court of Criminal Appeal has been released from custody …; and

(xi)   whether an acquittal would usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions … .

17. Except in respect of the contention that it was not open on the evidence to convict the appellant, none of the considerations militating against an order for a new trial were pressed on the Court. For present purposes it suffices to say, therefore, that the only controversial matter concerns the strength of the Crown case. It follows from the conclusion as to Ground 1 that the evidence is such as to justify a new trial, though I emphasise that this does not imply a final conclusion about the credibility either of the complainant or the appellant. That being so, it seems to me that the seriousness of the alleged crime, the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury and the absence of any countervailing considerations require an order for a new trial. Accordingly, I agree with the orders proposed by Fullerton J.

18. FULLERTON J: The appellant appeals his conviction on one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW), following a jury trial in the District Court.

19. On 27 March 2015 he was sentenced to imprisonment for 5 years with a non-parole period of 3 years. There is no appeal against sentence.

20. The appellant filed three grounds of appeal, although ultimately only Grounds 1 and 2 were pressed on the hearing of the appeal.

21. They are as follows:

Ground 1: The verdict of the jury was unreasonable and contrary to the evidence.

Ground 2: The trial judge’s directions as to the appellant having no reasonable grounds to believe that the complainant was consenting to the sexual intercourse:

(a) imposed an objective test of reasonableness of belief in consent where no such test existed;

(b) misstated the onus of proof;

(c) failed to detail or explain the evidentiary basis for the appellant’s claim to have reasonably believed that the complainant had consented to the sexual intercourse.

22. On the hearing of the appeal the Court was satisfied that the trial judge’s directions the subject of the second ground of appeal were in error. Although no redirections were sought at trial, the Crown did not seek to invoke Rule 4 of the Criminal Appeal Rules (NSW) and did not submit the proviso was applicable. The Court reserved its decision on the first ground of appeal, noting at that time that its consideration of that ground of appeal would dictate whether a verdict of acquittal would be entered or a retrial ordered under s 8(1) of the Criminal Appeal Act 1912 (NSW).

23. The Crown case

24. It was the Crown case that the complainant had penile-anal intercourse with the accused without her consent. That she had penile-anal intercourse with the appellant was not in dispute. What was in dispute was whether the Crown could establish, to the criminal standard, that she did not consent to anal intercourse and, in accordance with the legal test for knowledge about consent in s 61HA(3) of the Crimes Act, either that the accused knew she was not consenting or was reckless as to that fact or that there were no reasonable grounds upon which he had any belief that she was consenting.

25. It was also the Crown case that the circumstances in which sexual intercourse occurred, including when it occurred, where it occurred and how it occurred, what the complainant said before intercourse and during intercourse and the appellant’s treatment of her at that time, would satisfy the jury that the complainant was not consenting to anal intercourse and that the appellant knew she was not consenting, or was at least reckless as to whether or not she was consenting. It was the appellant’s case that the complainant willingly and actively participated in anal intercourse with him and that nothing she said or did caused him to have any reason to doubt that she was a consenting sexual partner.

Summary of the evidence at trial

26. On the evening of 11 May 2013 the complainant, then aged 18, travelled from the Central Coast to Sydney with friends to celebrate a friend’s birthday at Kings Cross. She had arranged to stay at her sister’s apartment in Lane Cove overnight. It was the complainant’s first visit to Kings Cross.

27. Prior to leaving her sister’s apartment at Lane Cove, and making her way to Kings Cross by train, the complainant and BW each prepared a medium soft drink bottle with a mixture of Coca Cola and bourbon. They took the mixed drinks with them.

28. By about 11.15pm the complainant and her friend met other friends by pre-arrangement at McDonalds Restaurant on Darlinghurst Road, Kings Cross. After BW and the complainant finished their pre-mixed drinks at the restaurant, they went first to The World Bar on Bayswater Road, Kings Cross, and later to Soho Nightclub (“Soho”) on Victoria Street. The complainant and BW travelled between The World Bar and Soho over the course of the next five hours or thereabouts, consuming a number of alcoholic drinks over that period, seeing their other friends from time to time at both places. The complainant gave evidence that she had sixteen standard drinks while BW said they drank ten.

29. One of the issues in the trial was the complainant’s state of intoxication at the time she first met with the appellant on the dance floor of Soho within minutes of re-entering Soho with BW at approximately 4am, and her state of intoxication within minutes of that when she accompanied him from the dance floor to a laneway at the rear of Soho where they had intercourse.

30. The extent of the complainant’s intoxication was an issue at the trial because of its potential to impact on the issue of consent. Section 61HA(6)(a) of the Crimes Act provides that:

(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:

(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug …

31. CCTV footage of the complainant and BW whilst they were at the McDonalds Restaurant, Darlinghurst Road at 10.50pm to 11.18pm was tendered, together with a compilation of various pieces of CCTV footage at Soho, including the complainant and BW entering Soho at 3.55am and the complainant being approached by the appellant on the dance floor inside Soho minutes later at 3.59am. The compilation disk also shows the complainant and the appellant in one another’s company at the base of a set of stairs leading from the dance floor two minutes later at 4.01am and then leaving through the rear door of Soho into Hourigan Lane at 4.02am. Hourigan Lane is a dead-end lane which runs parallel to Victoria Street. The compilation disk concludes with an image of the complainant rejoining BW approximately thirty minutes later at the Kings Cross train station after having had intercourse with the appellant in Hourigan Lane.

32. The jury were taken on a view of the various premises referred to in the trial, including the dance floor at Soho, the stairs descending to the rear of Soho and Hourigan Lane where they were invited to note the position of two CCTV cameras overlooking the laneway: the first located at the rear of the premises neighbouring Soho; the second located at the rear of another premises further north in the lane. Neither of these cameras were operating on the night of 12-13 May 2013. It was common ground that the part of Hourigan Lane where the appellant took the complainant, with the intention of having sexual intercourse with her, was not within range of either of the CCTV cameras.

33. The complainant described the appellant’s approach to her on the dance floor. She said they had a brief conversation, in the course of which the appellant told her he was a part owner of the nightclub and asked whether she had met the DJ. The complainant replied that she had not. (The appellant’s father was a part owner of the club where the appellant was employed on a casual basis.) The complainant said she went with the appellant to the DJ booth located to the side of the dance floor out of the range of the CCTV camera. The camera did record the appellant’s initial approach to the complainant on the dance floor and what appeared to be their first verbal exchange. The complainant said in her evidence in chief that when they were at the DJ booth she held hands with the appellant.

34. It was the appellant’s case at trial that he and the complainant were most intimately engaged at the DJ booth (that is, within the first two minutes of their meeting), including him touching her buttocks, and that this encouraged him to think she would have sex with him and ultimately to believe that she was consenting to the anal intercourse that occurred (also within minutes) in the laneway.

35. The appellant’s evidence in chief was as follows:

Q. You took her there [to the DJ booth from off the dancefloor]?

A. Yes, before we entered [the DJ booth] we kissed for my best guess is two minutes.

Q. What sort of kiss?

A. Tongue kissing, yeah, it was passionate kissing. I was - I had my hands on her waist, I was touching her body, she was touching mine.

Q. What parts of the body?

A. Her waist, her hips and I think she had her arms around my shoulders. Then we held hands and walked into the DJ booth.

Q. What happened there? Did you introduce her to the DJ?

A. Yes, I gave her a quick introduction.

Q. Can you now recall who the DJ was?

A. It was a very long time age, so I can't say for certain who it was.

Q. What happened?

A. A quick introduction, then we moved to the side towards the back of the DJ booth and then we remained there for five minutes kissing intimately throughout the entire time.

Q. "Kissing", what?

A. Kissing throughout the entire time that we were there.

Q. What about bodies proximity to each other?

A. We were facing each other and if we weren't kissing, we were dancing, touching each other's bodies, I was touching her legs, her hips, her buttocks and she had her hands around me.

Q. Did she resist any of your touches?

A. No, no.

Q. Did she say "no" or "stop" or anything of that nature?

A. Nothing of that nature.

Q. What happened next?

A. Then after five minutes I said, "Do you want to go somewhere private?".

She said, "Okay”. We held hands and walked over to the stairs, we walked down the stairs and over to Erin.

36. The appellant accepted in cross-examination that his estimate of the time they were in the intimate exchange at the DJ booth he described in his evidence in chief was considerably less than five minutes given that the CCTV footage shows him approaching the complainant on the dance floor at 3.59am and that two minutes later they had moved down the stairs from the dance floor, into the cloakroom/toilet area where the rear door leads into the laneway.

37. The complainant was not asked in cross-examination whether the appellant was touching her in the sexual suggestive way he described in his evidence, or whether she had her hands “around” him. The cross-examination of her on this issue was as follows:

Q. And I’m going to suggest you then started hooking up, that is dancing and kissing and rubbing bodies against each other adjacent to where the DJ was?

A. I don’t recall that.

Q. That may have happened?

HER HONOUR: All three things.

LLOYD: Yes.

HER HONOUR: Dancing, kissing--

LLOYD: Dancing, kissing and rubbing of bodies.

HER HONOUR: Adjacent to the DJ?

LLOYD

Q. Adjacent to the DJ?

A. I do not recall.

Q. You’re not denying any of those three things could have occurred?

A. I suppose they could have, yes.

38. The complainant gave evidence that it was whilst she was at or near the DJ booth that the appellant proposed, and she agreed, that she go with him to what he called a “VIP area” and that he led her from the dance floor down a short flight of stairs. The CCTV compilation disc showed the appellant and the complainant emerging from the stairs into the cloakroom/toilet area.

39. There was an issue at trial as to whether the appellant spoke to anyone in the cloakroom before he opened the rear door and beckoned, and then ushered the complainant outside as revealed in the CCTV compilation disc. The appellant gave evidence that he introduced the complainant to the cloakroom attendant. The complainant was not invited in cross-examination to confirm that he did. The CCTV footage did not clarify the issue.

40. The complainant gave evidence that when she left the dance floor with the appellant, she thought she had consumed approximately sixteen standard drinks over the course of that night and that she was feeling its effects. She gave the following evidence:

I was drunk but yeah, and I was pretty out of it I guess and just very, I don’t know, drunk is the only way I can really think to describe it.

41. The Crown relied upon the CCTV footage showing the complainant at the rear door before leaving through it with the appellant and what the Crown submitted the jury would infer from her movements at that time, including her momentary stagger and her leaning on the wall for support, as to her state of intoxication.

BW’s evidence

42. BW estimated that from arriving at McDonalds at 10pm to returning to Soho at around 4am, the complainant had consumed approximately ten standard drinks, as had she. When asked how the alcohol had affected her, she said:

A. I suppose the way alcohol affects you. We were, I guess, quite happy and I suppose our judgment wasn't exactly perfect is what happens when you consume alcohol.

Q. When you say "we" and "our" perhaps if you could just tell us?

A. [The complainant] and I.

Q. Just in relation to you, what effect had the alcohol upon you?

A. Yeah, I suppose I felt quite happy. My judgment might not have been perfect because we had in fact had 10 standard drinks.

Q. Had you observed the alcohol to have any effect on [the complainant]?

A. She was relatively the same as me, happy.

Q. Had you noticed any other effect on [the complainant]?

A. No.

43. During cross-examination, the BW was taken to the witness statement she provided to police on 12 May 2013:

Q. You said - and I don't mind if you refer to your statement – at paragraph 21 at the very end:

“During the night I consumed approximately 10 standard drinks. This ranges from 11pm to 2.30am. I can remember what occurred well and was well composed because I know my limits with alcohol"?

A. Yes.

Q. You would agree now that was your position on that night in relation to your degree of inebriation?

A. Yes.

Q. As I understand it you and the complainant effectively had drink by drink, that is you consumed the same amount of alcohol?

A. Yes.

44. The statement of ET, another friend of the complainant, was read to the jury by consent. She described seeing the complainant at McDonalds at around 3:30am:

I would say that (the complainant) was moderately drunk in that she was happy, but still very aware of her surroundings and walking and talking normally.

45. The complainant’s sister, AM, gave evidence that she received a phone call from the complainant at about 3am on 12 May 2013 to confirm the address of her apartment. She described her sister as “moderately intoxicated and sounded happy, like she was having a good time”.

46. During cross-examination, AM was taken to her witness statement:

Q. And then you say:

“I've seen [the complainant] intoxicated about three times prior to this I can tell that she was moderately intoxicated by the tone of her voice. Her speech was clear and she just sounded happy and excited. I went back to sleep".

A. Yes.

47. It was the defence case that the complainant was deliberating exaggerating the amount she had drunk and its effects. When that was put to her in cross-examination she disagreed. The appellant gave evidence that when they left the club and entered Hourigan Lane he believed the complainant was not affected by alcohol. He did not agree that the complainant was steadying herself by placing her hand on the wall before exiting.

48. The complainant gave evidence that after leaving through the rear door and going down some stairs, they walked for about 50 metres along the lane before they stopped near a fence and began to kiss. The appellant gave evidence that once outside in the laneway, he and the complainant held hands and jogged – he said the complainant “was almost skipping” – to the end of the lane where they started kissing. The complainant was not invited in cross-examination to confirm or deny that she “jogged” or “skipped” down the laneway.

49. The complainant gave evidence in chief as to what happened at the end of the laneway as follows:

Q. What happened then?

A. We started kissing and then like for a little bit, I - I’m not sure how long and then I wanted to leave so I said - I stopped and I said I’d like to - “I need to go back to my friend, I have to meet my friend”.

Q. When you were kissing what positions were you in?

A. We were standing up. I - I don’t recall where our hands were.

Q. And you have said that you said that you had to stop?

A. Yeah I stopped, yes.

Q. And you mentioned wanting to see a friend?

A. Yeah I said I had to meet my friend back in the club.

Q. Was there any response to that?

A. He said “No, stay here with me”.

Q. Did you say anything further?

A. I said “No, I really need to go”.

Q. And at this time when you were having this conversation that you just told us about what was the tone of the young man’s voice?

A. Normal, just conversational I guess would be the tone.

Q. And after he said “No, stay here with me”, what happened then?

A. I turned to go, I turned around and he - he put his hands on my hips and pulled my stockings down a little bit.

Q. How far did he pull your stockings down?

A. Three inches I would say, just a - a small bit.

Q. And how did he do that?

A. With - he - he put his hands like up my skirt and onto my hips and then pulled my stockings down a little bit.

Q. At the time that he did this which way were you facing?

A. I was facing away from him.

Q. When you say you were facing away from him was he behind you?

A. He was behind me, yes.

Q. And after he pulled your stockings down what happened then?

A. I turned back to him and I pulled them back up and I said “I really have to go.”

Q. And did he reply to that?

A. He - that’s when he said “Put your fucking hands on the wall”.

Q. What was the tone of his voice like when he said that?

A. He - he was getting frustrated and impatient I guess frustrated and impatient would be the tone, more aggressive than [the] previous conversation.

Q. And what did you do then?

A. Put both my hands on the - on the fence.

Q. Are you able to tell the Court why you did that?

A. I was just scared I guess, I didn’t know what to do so I just did what he said.

Q. And in relation to the fence what sort of fence was it?

A. It was a - a wooden like is it called a picket fence, it’s like wooden slats next to each other so a wooden fence.

Q. Do you remember how high the fence was?

A. Not exactly, no.

Q. And you said you did put your hands on the fence?

A. I did put both my hands on the fence, yes.

Q. And what happened then?

A. He pulled my stockings and underwear down to my ankles.

Q. At the time that he did that were you facing towards him or away from him?

A. I was facing the fence away from him.

Q. And what happened then?

A. He said “Just get on your hands and knees and arch your back.”

Q. What tone of voice did he say that to you in?

A. Like authoritarian like do, not - not aggressive but not nice I guess, just do that if you know what I mean.

Q. Did you do that?

A. I did, yes.

Q. Are you able to tell the Court why you did that?

A. I - I was scared, I can't - I was just doing what he asked.

Q. When you did as he said and got on the ground and arched your back where you relative to the fence?

A. I was probably like a metre or two away facing away from the fence.

Q. Do you remember what sort of surface you were on?

A. It was a like gravel like road.

Q. When you did what he asked you to do can you just describe what you actually did?

A. So I got on my hands and knees and arched like arched my back.

50. As to the intercourse whilst she was on the ground, the complainant said:

A. He put his penis into my butt, my bum I guess, I don’t know which correct terminology it is and I said “Ow” and he said “You're so tight” and I said “What do you expect, I’m a fucking virgin” and he said “Oh shit, really” and then I just kept saying “I have to go back to my friend” and he didn’t say anything to that.

Q. Did you say anything else to him?

A. I asked him to - I said “Stop” at the start like at the beginning after - after he said “Oh shit, really” and then I just kept saying “I need to go back to my friend”.

51. The complainant gave evidence that she thought the penetration of her anus continued for about ten minutes. She was uncertain as to whether the appellant ejaculated. She did not believe he used a condom. She gave the following evidence:

Q. Are you aware of whether or not he ejaculated?

A. I – I don’t think he did because I didn’t feel anything so I am assuming that he did not.

Q. And are you aware whether or not he wore a condom?

A. I don’t believe that he did. I didn’t see a wrapper or hear him open anything or anything like that so I’m assuming again that he did not.

52. The following day, the complainant underwent a forensic examination at North Shore Hospital. An anal swab taken in which semen was detected. The DNA in the anal swab was a mixture of the appellant’s DNA and the complainant’s DNA. DNA was recovered from a vulval swab that was also a mixture of the complainant and another person. The appellant could not be excluded as the contributor to that mixed sample.

53. The complainant also gave the following evidence as to what occurred after the anal intercourse:

Q. After this, what did you do?

A. I stood up and I pulled my stockings and my underwear up.

Q. And what happened then?

A. He asked me to put my name in his phone, so I put my name in the notes on his phone and yeah I didn’t put my, I just my name that’s all.

Q. In relation to his phone, how did you come to have his phone?

A. He handed it to me.

Q. And when did he do that?

A. After I had pulled my stockings and underwear up, he said “Put your name in my phone” and handed me his phone then.

54. When asked by the Crown what she did next, she said:

I tried to find the door that we came out of but I, I tried one of the lit up doors but it wouldn’t, it wasn’t open or it was locked or, wrong door I don’t know, and so I, I ran back to the Kings Cross sign, station sign.

Evidence of complaint

55. On arrival at the station, the complainant telephoned BW who arrived shortly thereafter. The complainant said that she was crying and that she told BW what had happened. The complainant was unable to recall what she said to BW. BW gave the following evidence, relied upon by the Crown as evidence of complaint:

Q. When you met up again with [the complainant], did you make any observations about her?

A. Yes.

Q. What did you observe?

A. She couldn't breathe properly. She was crying.

Q. Did she say anything to you?

A. Yes.

Q. What did she say, to the best of your recollection?

A. She said that she met someone that took her up to the - to the DJ area of the club and then to a VIP area and then he took her to an alleyway. And she told me what had happened and she said, he told her to put her hands on the wall and then to arch her back. And she said to him to find her friend, she's with me and he said, she told me he said, "Your friend won't miss you". And that's all she said to me at that point.

Q. Did you have any further conversation at that time with [the complainant] about what had happened?

A. I just asked her "where" and she said, "In the alleyway". I asked her, who it was and she just said it was someone in the DJ area and at this point she was crying so I couldn't get much out of her.

Q. What did you do?

A. I was in shock. So I just hugged her and then she kind of collapsed into my arms. And then we walked to the station to go home.

56. BW also gave the following evidence:

Q. After this conversation with [the complainant] at the crossing and before you arrived back at [the complainant’s sister's] home, was there any other conversation about this incident?

A. We just went over it again and again. And we couldn't talk on the train because there was people near us and people kept asking what was wrong with her and we just tried not to draw attention because she was in hysterics.

Q. Did you reach [the complainant’s sister’s] home?

A. Yes.

Q. What happened then?

A. I asked her to check if she was bleeding because she was in pain and she was. And then we went to sleep. [ST] and [ET] were already there, but they were already asleep so we went to sleep for about two hours.

Q. I will stop you there. You said she said was in pain?

A. Yes.

Q. You're referring to [the complainant]?

A. Yes.

Q. Did she say where she was in pain?

A. Yes.

Q. What did she say?

A. She said it was hurting down there. That's all she said to me.

57. The two women waited for the train station at Kings Cross to open before travelling to the complainant’s sister’s apartment, from where the complainant sent a text message to her sister in the following terms:

Complainant (5.05am): I have something to tell you.

58. The complainant’s sister did not respond to the text.

59. After the complainant and BW slept for about two hours, the following text message exchange passed between the complainant and her sister, also relied upon by the Crown as evidence of complaint:

Complainant (9.38am): Are you awake?

Sister: Yep.

Complainant: Well, could you not be mad at me please but can you please transfer $20.00 into my account so [BW] and I can get home. Sorry.

Sister (10.02am): Never angry baby girl. I am with a different bank. Don't donut. Donut won't hit your account until tomorrow. You can wait until we get home in about an hour or go the back balcony and scab gold coins out of the brown box. Let me know.

Complainant: OK we'll wait.

Sister: Make sure you have tidied up please drunky

Complainant: OK, I have the story to tell you. It's actually really heavy so are you alone?

Sister (10.16am): I am in the car with [P]. Are you OK?

Complainant: OK so we went to the World Bar and Soho and we just kept going back and forth between the two. At about 4.30, [BW] and I went back to Soho and she was hooking up with this boy and I was just dancing beside them and this boy started dancing with me and he was the co-owner of Soho (like for serious, he actually was) and he introduced me to the DJ and then he took me out this back door and we went down this alley and then he was aggressively hooking up with me and I was like "I have to go back to my friend" and he was like "No, its fine, she won't miss you" and then I was trying to get away and I was like "No, I really have to find my friend" and then he just went "No, put you fucking hands on the ground and arch your back" and I didn't know how to leave so I just did and he, ah, how do I put this delicately? Anal. Yep. And then I ran away and called [BW] and waited for her and cried. The End. Yeah.

60. Evidence of complaint was also given by ST and ET, two of the complainant’s friends who were at the apartment in Lane Cove having left Kings Cross before the Complainant and BW.

61. ST, another friend of the complainant’s friends who was in her company from time to time between McDonalds, The World Bar and Soho, described meeting the complainant and BW at The World Bar at approximately 11pm. She gave evidence that she occasionally came across the complainant and BW during the night with another friend of hers but that “there was a bit of disjoint between us and them”.

62. ST described seeing the complainant and BW at McDonalds after 3am before she left Kings Cross and returned to the complainant’s sister’s apartment with another friend by taxi.

63. As to the events of the following morning at the apartment, ST said:

A. BW was mainly talking that morning. [The complainant] was quite quiet and quite disengaged from us, she told us that she'd been sexually assaulted at the Soho nightclub.

…

A. Okay. She said that, [the complainant] was dancing with a guy, she was dancing with a guy. He led her through a back way of Soho, he told her to get against the wall and he made her have sex with him anally.

Q. Did you say anything in response to that?

A. I asked if she was - if he wore a condom, if she was going to talk to the police about it? She said that, she wanted to wait for [her sister] to come home and discuss it with her.

…

Q. I think you said a bit "disengaged". Did her demeanour change at any stage during the conversation that you were having about the night before?

A. No, she - it was - she was in a state of shock and when she was telling us what had happened it was almost like she couldn't - she hadn't fully reckon - realised - a state of shock I would say, like it would be.

64. Of the morning after the incident, after ET had also spent the night at the complainant’s sister’s apartment, her statement read:

We all sat down on the bed talking about the night and [the complainant] just casually said during the conversation, "I was raped." [The complainant] told me the gist of what had happened and she said words like, a guy took me to the back of the Soho and told me to lay on the ground and arch my back. She really didn't explain it at the time. We were both in shock and I told them to call the police.

[The complainant] said she'd already told her sister and [she] was on her way home. She said they were going to wait for the sister to arrive and then they would work out what they were going to do.

[ST] and I probably would've stayed for about an hour. The rest of the time we just spoke about the rest of the night and where they had been when we'd lost them and then left them. The assault was only a small part of the conversation.

AM’s evidence

65. Following the text message received after 10.16am the following morning (extracted above at [58]), AM gave evidence that she immediately telephoned the complainant:

... I called [the complainant] straight away and I asked her if she was okay and she said she was fine and I said "Are you sure" and she that she was okay. I said "You know that when we get home we have to go to the police".

66. The complainant attended Chatswood Police Station with her sister where she spoke to police and gave them the clothes she wore to Kings Cross the previous night.

67. The statement of the police officer to whom the original complaint was made at Chatswood Police Station was read to the jury by consent. The statement described the complainant’s account of the events leading to the anal intercourse:

Allegedly the POI stated his name, but [the complainant] could not recall it. [The complainant] described the POI AS approximately 23 years old, a bit shorter than her in height, slim build, scruffy hair, Middle Eastern appearance, wearing a white short sleeved t-shirt and black dress pants.

The POI asked [the complainant] if she had met the DJ and stated that he was part owner of the Soho Nightclub. The POI and [the complainant] walked around the DJ booth, out the back door and into a laneway. They walked to their right and along the laneway for about 50 metres to the opposite side of the road. They stood near a wooden fence and [the complainant] recalled the top of the fence palings were in the shape of a diamond.

The POI and [the complainant] started kissing which [the complainant] stated was consensual. The POI then pushed [the complainant] against the fence and inserted his penis into her anus. [The complainant] thought this male was not wearing a condom and didn't ejaculate. [The complainant] ran back along the laneway, past the rear door to Soho and out on to the Victoria Street where she called [BW], who later met up with her.

68. A forensic examination was then undertaken at Royal North Shore Hospital, including an internal examination. The complainant gave an account of the incident to the examining doctor at Royal North Shore hospital which the doctor recorded as follows:

[The complainant] was at [a] club in Kings Cross with [a] friend. She met a man and they went outside. Once outside they started “hooking up” (kissing). [The complainant] said she had to go. The man told her to stay. [The complainant] tried to leave, the man ordered her to put her hands on the wall, he pulled her stockings down. He then pushed her down on all fours. He penetrated her anus with his penis. She said it was very painful. He did not use a condom. She does not think that he ejaculated.

She then ran back to her friend and they went home.

69. The examination revealed grazes on the complainant’s knees and small tears around her anus. The complainant attended Kings Cross Police Station later that day and provided a statement to police.

Cross-examination of the complainant

70. Various propositions were put to the complainant in cross-examination, where she was invited to concede that some aspects of the events of the evening, and important details of her sexual engagement with the appellant, had been omitted in her evidence in chief. The cross-examination was directed to challenging her credit, it being the defence case that in critical respects she was lying in the evidence she gave as to what occurred in the laneway. It was the appellant’s case that, far from being a non-consenting party to anal intercourse, she was an active and willing participant throughout and that she only changed her attitude when she saw that she was the last addition to a list of female names in the appellant’s phone. It was the appellant’s case that, thereafter, she determined to make a false complaint about non-consensual anal intercourse, claiming (falsely) that she only submitted because she was in a state of fear and because her judgment was compromised because of the alcohol she had consumed.

71. As to the events in the laneway immediately preceding the intercourse, the complainant was asked the following questions:

Q. And you you’ve said elsewhere in your evidence, were willingly kissing him, correct?

A. That’s correct.

Q. And you were doing that for at least several minutes down in the lane, weren’t you?

A. That’s correct.

Q. You willingly went with him from the dance floor?

A. That’s correct.

Q. To the area of the DJ, let aside whether you met the DJ, you willingly went with him down the stairs, correct?

A. That’s correct.

Q. You willingly went with him out the door?

A. That’s correct.

Q. And you willingly went with him down the lane?

A. That’s correct.

Q. He didn’t force you?

A. That’s correct.

Q. He ushered(as said) no threats to you at any stage?

A. That’s correct.

Q. And you went down the lane with him some 50 metres where you willingly hooked up with him?

A. That’s correct.

[She had earlier explained that “hooking up” meant kissing.]

Q. He certainly didn’t push you to the ground and push you to your hands and knees, did he?

A. That’s correct.

Q. Nothing like that, there was no force, and there were no threats?

A. That’s correct.

72. The complainant was also taken by the cross-examiner to the account she gave to the examining doctor at Royal North Shore Hospital. It was put to the complainant that she gave the doctor a false account of the events:

Q. Well let’s read the history taken by the doctor from you. “[The complainant] was at a club in Kings Cross with friend. She met a man and they went outside. Once outside they started “hooking up”, (kissing). [The complainant] said she had to go. The man told her to stay. [The complainant] tried to leave, the man ordered her to put her hands on the wall, he pulled her stockings down. He then pushed her down on all fours”. You see that?

A. Yes.

Q. Well if the doctor recorded that from you, it would be wrong wouldn’t it?

A. Yes.

Q. Because you say that didn’t happen?

A. That did not happen.

Q. Madam, again I suggest to you that’s what you told the doctor?

A. I don’t recall telling the doctor that.

Q. And you were again embellishing your account to make it more believable?

CROWN PROSECUTOR: Object to the word --

HER HONOUR: She doesn’t recall telling the doctor that.

LLOYD

Q. Madam the truth is you consented to intercourse that night, didn’t you?

A. No.

Q. “He then pushed her down on all fours, he penetrated her anus with his penis, she said it was very painful. He did not use a condom. She does not think that he ejaculated. She then ran back to her friend and they went home”. But that sentence there that the doctor has recorded of our history, “He then pushed her down on all fours”, you disagree with?

A. That’s correct.

Q. As I understand your evidence that’s not what you told the doctor?

A. I don’t recall what I told the doctor.

Q. Well if you told that you would have been mistaken?

HER HONOUR: Well Mr Lloyd, she never agreed or she doesn’t recall what she told the doctor.

LLOYD: No I don’t need to take it any further your Honour.

Q. Because there was no pushing at all was there?

A. That’s correct.

73. As to the anal intercourse, the complainant gave the following evidence in cross-examination:

Q. And I’m going to suggest to you madam that you willingly went down the lane with him?

A. That’s correct.

Q. You hooked up at the end of the lane in the sense of kissing?

A. That’s correct.

Q. Rubbing of bodies?

A. I don’t recall that. I don’t recall that.

Q. But you’re not denying that may have happened?

A. It could have happened, yes.

Q. And that you did say, “I should get back to my friend” and he said, “No, she won’t miss you, stay with me”?

A. That’s correct.

Q. And then you hooked up a bit more in the sense of kissing and body rubbing, that may have happened?

A. I suppose so.

Q. He asked you to lean against the fence which you did?

HER HONOUR

Q. Well firstly did he ask you to lean against the fence?

A. He asked me to put my hands against the fence.

LLOYD

Q. Well yes, put your hands against the fence?

A. That’s correct, yes.

Q. And he took - pulled your stockings down and your underwear?

A. That’s correct.

Q. And you didn’t resist?

A. That’s correct.

Q. And he tried to enter your vagina from behind?

A. I don’t recall.

Q. But he may have?

A. He may have.

Q. And he said words to the effect, “Fuck you’re tight”?

A. After I was on the ground.

Q. He’s been trying to enter your vagina, you’ve just accepted he may have done that?

A. Right.

Q. He said to you, “Fuck you’re tight”?

A. No.

Q. And you said, “What do you fucking expect, I’m a virgin”?

A. Right.

Q. You said that didn’t you?

A. I did say that yes.

Q. And then he entered you?

A. Yeah.

HER HONOUR

Q. What, anally?

A. While I was on the ground yes.

LLOYD

Q. And he did ask you if you could put your hands and knees on the ground?

A. Yes. That was before that conversation, yeah.

Q. Before that conversation?

A. Yeah that’s correct yes.

Q. He tried to enter your vagina and then he entered your anus?

A. That’s correct.

Q. And as he was entering your anus you pushed back towards him?

A. I don’t recall.

Q. But you may have?

A. I may have.

74. The complainant responded to propositions put to her about saying “Stop” or “No” during anal intercourse as follows:

Q. I want to go back to when you were in the lane. I want to suggest to you that at no stage did you say "stop" or "no" to my client when he was having intercourse with you?

HER HONOUR

Q. Firstly it's suggested at no stage did you say "stop" when anal intercourse was occurring?

A. That's incorrect.

Q. And at no stage did you say "no" when anal intercourse was occurring?

A. That's correct.

75. The complainant was taken to her first statement to police at Kings Cross police station in the following questions:

Q. Taking you back up to the top of that page I'll pick it up halfway along the first line:

“As soon as he inserted his penis into my anus I felt a lot of pain and said "ah". He said "Fuck you're tight". I said "What do you expect, I'm a fucking virgin". He said "Oh, shit really". I continued to tell the male I needed to go back to my friend but he didn't respond. I think at one point I told him to stop, but mostly I was saying that I need to go back to my friend.”

This was the first statement you made, wasn't it?

A. That's correct.

Q. You knew that it was important to be as complete and accurate as possible in giving your account to the police?

A. That's correct.

Q. You read the statement back and you had no corrections or additions to make?

A. That's correct.

Q. You say here "I think at one point I told him to stop"?

A. That's correct.

Q. Well, you weren't certain were you?

A. I was, yes.

Q. Well you don't say "I told him to stop", do you?

A. That's correct.

Q. You say "I think at one point I told him to stop"?

A. That's correct.

Q. They're very different meanings in English, those phrases, aren't they?

A. I suppose so, yes.

76. It was put directly to the complainant in cross-examination that her attitude to the appellant changed when she was asked by him to add her name to the list of names in his phone, and that it was that that inspired her to make a false complaint about the appellant’s treatment of her during their sexual encounter as to which she gave the following evidence:

Q. Madam, I'm suggesting to you in concluding my cross-examination that once you put your name at the end of that list of girls' names on that phone your attitude changed?

A. I disagree.

Q. You then became upset and you left the lane?

A. I disagree.

Q. That you felt you'd been used and were just a trophy?

A. I disagree.

Q. And I suggest to you that you have lied in this courtroom about what took place in that lane?

A. I disagree.

Detective Senior Constable Dale’s evidence

77. Officer Dale gave evidence that a statement was obtained from the complainant by Officer Butler at Kings Cross Police station on 12 May 2013 in which she detailed the sexual assault and that she obtained further statements from her on 28 May 2013 and 11 October 2013. There was no evidence led from the Crown or the police as to the content of the additional statement.

78. On 9 August 2013, the appellant attended Kings Cross Police Station with a legal representative where he was formally cautioned and charged. He declined to be interviewed. He consented to the provision of a buccal swab.

79. Officer Dale gave evidence that she obtained data from the appellant’s phone, which included a list of female names, including the complainant’s.

80. A text message exchange between the appellant and a friend of the appellant, Rono, sent at around 2pm on 12 May 2013 and received by the applicant was also retrieved from the phone. It read as follows:

Rono: How was your night ??

Appellant: I honestly have zero recollection of calling you.. Was a sick night – took a chicks virginity lol

Rono: Bahahaha nice popping does [sic] cherries. Tight?

Appellant: So tight.. It’s a pretty gross story tell ya later.

81. The police also intercepted a number of phone calls between the appellant and both his father and a male friend between 3 and 6 August which, in the Crown’s submission, revealed the appellant’s concern as to what the CCTV footage might have revealed and his expressions of relief when he learnt it did not show him with the complainant but interacting with another woman, with no suggestion of wrongdoing.

The defence case

82. The appellant gave evidence that he believed the anal intercourse with the complainant was consensual and that there was nothing in her behaviour towards him, including anything that was said by her or her behaviour before or during intercourse that indicated to him that she was not consenting. Furthermore, the appellant maintained that the complainant was actively and, in his assessment, willingly engaged in anal intercourse with him.

83. The appellant described his approach to the complainant on the dance floor, making eye contact with her, dancing with her and his invitation that she accompany him from the club to a “VIP area”.

84. The appellant gave evidence:

Q. Was there initial conversation between the two of you?

A. Yes. Whilst we were dancing I said, "Hi, my name is Luke”. She said, "I'm [SM]”. We continued to dance a bit further. I said, "Hey, this is my family's place”. And she said something to the effect of, you're joking, or she expressed disbelief. So I opened my wallet and I showed her what is a business card, a staff business card, and my licence. She looked directly at it, at them. And then I said, "Okay, have you met the DJ before?". She said that she hadn't. I said, "Look, let's go to the VIP area”.

85. He said that he stopped at the cloakroom at the base of the stairs en route to Hourigan Lane (the place he appeared to nominate as “the VIP area”):

Q. What was that about?

A. Erin was cloak room girl who had been there for a few years, was a close personal friend of mine. I said, "Okay, we're heading off, see you later”. And I said to [the complainant], "This is Erin”. She said, "Hello”. Then I said, "Okay, we're heading off, see you later”. And I walked to the door and held the door open.

86. The appellant gave evidence that once outside in the laneway, they held hands and jogged – he said the complainant “was almost skipping” – to the end of the lane where they started kissing. He went on to describe what happened:

A. Got to the end of the lane, immediately started kissing again, our bodies were touching. At this point I was touching her buttocks and her breasts, our groins were touching, she had her hands around me and, yeah, we were kissing the whole time.

Q. What happened next?

A. Next she said, "Oh, I should probably go back to my friend”. To which I said, "No, stay here with me, your friend won't miss you”.

Q. Next?

A. She didn't respond and we continued kissing for another few minutes. There was kissing and then whilst kissing I said, "Turn around and put your hands on the fence”.

Q. Did you raise your voice on saying that or just ask her?

A. No, I did not raise my voice or I wasn't demanding anything, I just said it as I had been talking to her.

Q. Go on, what did she do?

A. She turned around and put her hands on the fence and kind of bent right over and pointed her buttocks towards me. At that point I tried to pull her stockings down and her underwear down. I did pull her stockings and underwear down, not down to her ankles, but down below her buttocks. I tried to put my penis in her.

Q. Just stopping there, up to this stage did she say "no" or "stop" in any form?

A. No, no.

Q. Did she try to pull away from you?

A. No.

Q. Okay. Trying to put your penis in her, what part of her?

A. In her vagina.

Q. As you were trying to put it in--

A. As I tried to--

Q. What did she do?

A. Once I put my penis to her vagina and she moved back towards me with her body. I believe that she was encouraging me and sex. It wouldn't go in and I said, "Fuck, you're tight”. She said, "What do you expect? I'm a fucking virgin”. I said, "Okay, well, get on your hands and knees and arch your back”. And she did so.

Q. Did you raise your voice?

A. No, no. She did that and then I tried to put my penis in her vagina again and it wasn't going in. But the whole time I was trying to move my penis towards her vagina, she was pushing back towards me. I then put my penis to her anus and as I did so she did the exact same thing and pushed back towards me, slowly.

Q. Did she say "no" at any stage --

A. No.

Q. --when you moved to her anus?

A. No, she did not say the word "no". Then as I moved forward slowly she moved back slowly and then I moved back and forwards slowly and she did the exact same thing. Her body - throughout her whole body she was moving back towards me. And then we finished and then I stood up, pulled my clothing back on and she did the same.

I couldn't recall her name and I said to her, "Can you put your number – put your name in my phone?" And handed her my phone, I gave her, with the note up, and the screen was alight. At that point she took it, looked at – clearly looked at the names and wrote her name at the bottom.

Q. "Wrote", you mean typed?

A. Typed her name at the bottom.

Q. What sort of phone did you have?

A. It was an iPhone 4. She typed her name in. As I was looking at her, she -her demeanour clearly changed.

Q. In what way?

A. She no longer had a smile on her face that she had before, she was disgruntled. She looked - yeah--

HER HONOUR

Q. Rather than your conclusions what did you observe? So she no longer had a smile on her face?

A. A stern look on her face, yeah, she wasn't smiling sweetly anymore and she was - there was a serious look on her face. I realised that at that point that it was clearly a very, very rude thing for me to have done. She gave me the phone back and she just - and she walked away.

87. The appellant denied raising his voice or physically pushing or threatening her. He said that at no stage did the complainant ever say “no” or “don’t do that” to any of his sexual advances.

88. When asked what steps the appellant took to satisfy himself that the complainant was consenting, he said:

A. I knew she was consenting because we had kissed a number of times heading up to - she willingly came down the lane with me, I didn't force her to, we were kissing down in the lane, I didn't ask her to bend over, she just did it, as I put my penis to her vagina she pushed back towards me, and then as we were having sex she was moving back and forwards with me the whole time.

Q. What about the groping of bodies?

A. She was touching my body as well, when I touched her body she never moved my hands away, never said "no", never said "stop".

Q. Did you actually turn your mind to the fact of her consenting?

A. Of course and her actions told that me she was completely happy to be there as I was.

89. After intercourse, the appellant stayed in the laneway for some time using his phone before catching a taxi home.

90. The appellant was taken to a series of telephone calls intercepted by police under warrant. The appellant was asked about one conversation with his father:

Q. Anyway, your Dad then asked you: “I know but that particular girl could that have possibly ended up going pear shaped”.

You say: “Look this is the one I thought it was”.

Your Dad says: “Right it was a hundred percent, a hundred percent, you didn't have any issues with her on the night".

What did you take your Dad to be implying by issues?

A. Did she had have complaints about you, was there any drama did she get angry with you, anything like that.

Q. You say, "No, no, no" meaning?

A. Meaning that I had no inkling that she could have had a problem that – I thought everything, I knew everything was completely consensual.

91. During cross-examination, the appellant said that he made the decision to take the complainant out into Hourigan Lane to have intercourse as opposed to a storeroom or other room including a bathroom within Soho as to which he had access. The appellant agreed that he was familiar with the lane and the location of CCTV cameras in that area as follows:

Q. There is some distance between those cameras on the residential building?

A. Yes.

Q. And the end of the lane; correct?

A. Yes.

Q. And there's no cameras at the end of the lane, is there?

A. No.

Q. The end of the lane is adjacent to a carpark; correct?

A. Yes. Lit car parks.

Q. And in the region of the end of the lane, when you say the end of the lane, do you mean the area where there was a brick wall at the end of the lane? If you are facing from the back door of Soho straight ahead you are effectively looking at a brick wall?

A. You are looking at a brick wall, yes.

Q. And the wooden fence is adjacent to that on your left if you are facing the wall?

A. Perpendicular - yeah, on my left, yes.

Q. And the roadway there is bitumen?

A. Yes.

Q. Some loose gravel?

A. I'm not sure.

Q. Why did you pick that location to stop with [the complainant]?

A. I thought it was a private area.

Q. Although it was opposite a lit car park?

A. Yes.

Q. You thought it was more private than anywhere in the club?

A. At that time I thought it was, it was, it would give me privacy that I don't think I would have got in the storeroom with people coming in and out of it.

92. It was put to the appellant that as he and the complainant left Soho via the rear exit, she put her hand against a wall of the nightclub to steady herself, as the Crown suggested was shown in the CCTV compilation. The appellant did not agree that the complainant was steadying herself. The appellant gave evidence that he did not think she was affected by alcohol at that time.

93. As to the complainant’s stockings and underwear being pulled down by the appellant as she tried to leave, the appellant said:

Q. You have heard [the complainant] give evidence that after she said that she had to go back to the club she took a step and you pulled her stockings down about three inches and that she pulled them up and said, "No, I really have to go"?

A. She said that, yes.

Q. You recall that happening?

A. No, I do not.

Q. Could it have happened?

A. Absolutely not.

Q. And is it the case that you just don't recall whether that happened?

A. It definitely did not happen.

94. The appellant denied using an aggressive or authoritative tone when he directed the complainant to put her hands on the fence and then to get onto her hands and knees on the ground, or that he felt frustrated or impatient. He said his tone of voice did not change. Her Honour asked the following question:

Q. Why did you tell her to turn around and put her hands on the fence?

A. At that time we were touching bodies and I'm not, I don't know, I asked her

to do that because I thought that it was leading to sex and I believe that she thought that as well by the way she bent over when I said that.

95. The appellant said he did not tell the complainant why he wanted her to take up the position against the fence and there was no discussion with her about it. He said that he asked the complainant to get on to ground on her hands and knees to make penetration easier for both of them, after which he was asked the following questions:

Q. It was easier for her to be on the ground, in direct contact on the ground?

A. I thought the penetration would have been easier for both of us if she was on the ground. By "penetration" I mean sex.

Q. You've heard [the complainant] give evidence that she told you to stop?

A. I recall her saying that, yes.

Q. You recall her saying that shortly after you penetrated her?

A. She gave words to that effect, yes.

Q. Did you stop?

A. I did not stop because she never asked me to stop or never said "stop".

Q. You've heard [the complainant] give evidence that she repeatedly said, "I have to go back and see my friend" or words to that effect?

A. That's untrue.

96. He said, save for the exchange about her being “tight”, there were no words exchanged between them at all during intercourse.

Ground One

97. The obligation of the Court in considering whether a verdict of a jury is unreasonable or cannot be supposed having regard to the evidence is the subject of settled principle. The question the Court must ask itself was restated in SKA v The Queen [2011] HCA 13; 243 CLR 400 where at [11] the majority (French CJ, Gummow and Kiefel JJ) held that, in conformity with the approach by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, the question for the Court is:

… whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

98. The majority went on to say:

[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."

[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."

[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.

99. In Kurdi v R [2011] NSWCCA 179, Bathurst CJ said at [8] that in order to comply with M v The Queen:

… it is necessary for the Court to review the whole of the evidence available to the jury. That is not to say that a court of appeal conducts its own trial. The question which it must answer is whether it was open to the jury to reach the verdict which it in fact reached. Further, as was pointed out in M v The Queen supra, the Court must pay full regard to the primacy of the jury as the fact-finding tribunal and to the fact that the jury has had the benefit of having seen and heard the evidence.

100. The appellant submits that the evidence at trial was deficient in proof of two of the three essential elements of the offence: the first that the complainant did not consent to anal intercourse, being the second element of which the jury needed to be satisfied beyond reasonable doubt if they were to find the appellant guilty; and the second (assuming proof of the first), that the appellant either knew she was not consenting, or was reckless as to the fact or had no reasonable grounds for believing that she was consenting.

Did the Crown establish beyond reasonable doubt that the complainant did not consent to anal intercourse?

101. The appellant conceded that the complainant’s unambiguous evidence at trial was that she did not consent to anal intercourse. The appellant submitted however that the attack on her credit, in particular, what were said to be unexplained and material inconsistencies in the account she gave to her sister, police and a doctor within twelve hours of the incident, together with her behaviour on the night, including that she left the dance floor and went into a darkened laneway with a relative stranger within minutes of meeting him where she had anal intercourse, would satisfy this Court it that was not open to the jury to be satisfied beyond reasonable doubt that she was giving truthful evidence when she said she did not consent to anal intercourse.

118. I have already considered that body of evidence in detail in the course of considering whether the appellant’s challenge to the sufficiency of the evidence to prove an absence of consent. I emphasised then, as I do now, that the contested questions of veracity and reliability that presented in this trial, including whether the complainant made any material concessions in the course of cross-examination, are quintessentially jury questions.

119. I should however refer to one additional aspect of the evidence I have not dealt with. It was the appellant’s case that when he directed the complainant to put her hands on the fence he was intending to have vaginal intercourse but that he was unsuccessful (despite his evidence that she bent over and pointed her buttocks towards him), and that in response to him remarking as to her “tightness” and her telling him she was a virgin, he directed her to take up a position on the ground and arch her back where he attempted vaginal intercourse a second time before anal intercourse was achieved. This was relied upon as part of the surrounding circumstances serving to undermine the Crown case on both the second and third elements of the offence.

120. Under cross-examination the complainant accepted that the appellant may have tried to penetrate her vagina whilst she was leaning on the fence. She was not asked to concede by the cross-examiner that she bent over and thrust her buttocks towards him (despite this being integral to the appellant’s case) and made no concession that the conversation about her being “tight” was other than when she was, as she described it, “on the ground”. While the jury were entitled to accept the possibility that vaginal intercourse was attempted at some point, since there were no questions directed to the complainant by the cross-examiner to invite her to concede that she consented to intercourse by that means, or that she pushed back with her buttocks to facilitate it, it is not open, in my view, for the appellant to invite this Court to find as a fact that it was conduct of the complainant preparatory to the anal intercourse that followed.

121. After undertaking the requisite independent review of all the evidence at trial bearing upon the question of proof of the third element, and paying full regard to the opportunity the jury had of seeing and hearing the complainant and the appellant give their evidence, and for each to be challenged under cross-examination as to their honesty in recounting what was said and done in Soho and in the laneway (or not said or not done as the case may be), I am satisfied that the evidence allows for the jury to have concluded that the appellant was at least reckless as to whether the complainant was consenting to anal intercourse and to have concluded that was his state of mind when he had anal intercourse with her.

122. Accordingly, I am satisfied that the evidence was not deficient in proof of the third element of the offence and, for that reason, that it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.

123. The first ground of appeal is dismissed.

Ground Two

139. The trial judge’s oral directions of law were supplemented by written directions. The directions were comprehensive. They covered each of the three elements the Crown had to prove beyond reasonable doubt if the jury were to find the appellant guilty. The jury were also directed as to how they should approach the question of proof of those elements referable to the evidence relied upon by the Crown to prove each the issues at trial as to the adequacy of proof raised by the appellant beyond reasonable doubt.

140. While the written directions and oral directions were obviously not in identical terms, they were, substantially, to the same effect.

141. The appellant submitted that only part of her Honour’s written and oral directions as to the applicable law were in error. In every other respect, it was accepted the directions were unassailable.

142. As regards proof of the third element of the offence, the directions correctly identified the alternate ways in which knowledge concerning consent may be proved at law as provided for in s 61HA(3)(a)-(c) of the Crimes Act. Her Honour also directed the jury that it was the Crown’s obligation to prove beyond reasonable doubt either that the appellant knew that the complainant was not consenting at the time of the anal intercourse, was reckless as to that fact, or that he had no reasonable grounds for believing that she was consenting.

143. When the trial judge was reminding the jury of the appellant’s case on the question of his state of mind at the time of anal intercourse in her oral directions, she repeated the one aspect of the written directions said by the appellant to amount to a fundamental misdirection of law.

144. In the written directions as concerns proof of the third element, her Honour said:

12. In relation to element iii., the Crown must prove beyond reasonable doubt that the accused knew that [the complainant] did not consent to having penile-anal sexual intercourse with him. What you are concerned with here is the actual state of mind of the accused at the time of that sexual intercourse. It is not a question of what you yourself would have realised, thought or believed nor what a reasonable person would have realised, thought or believed.

13. Proof of this third element requires that you look at what was going on in the mind of the accused. It is not an impossible task to ask a jury to consider what was going on in the mind of an accused. In deciding this issue you can have regard to all the surrounding circumstances in which the act of penile-anal sexual intercourse occurred, including but not limited to, the relationship which existed between the accused and [the complainant] at the time of the intercourse, the accused's actions and/or words, [the complainant]'s actions and/or words, the nature of the act and the condition of [the complainant] at the time of the intercourse.

14. The Crown can succeed in proving the third element if it proves beyond reasonable doubt any one of the following states of knowledge. Namely, that

i. the accused knew that [the complainant] was not consenting to the act of penile-anal sexual intercourse, or

ii. the accused was reckless as to whether [the complainant] was consenting to the act of penile-anal sexual intercourse either because he,

a.   realised there was a possibility that [the complainant] was not consenting to the act of penile-anal sexual intercourse but went ahead and performed that act anyway, or

b.   the accused did not even think about whether [the complainant] was consenting to the act of penile-anal sexual intercourse (in other words, he did not care whether she was consenting or not), or

iii. the accused had no reasonable grounds for believing that [the complainant] was consenting to the act of penile-anal sexual intercourse.

15. When you are considering these alternate ways in which the Crown can prove this third element you must have regard to all of the circumstances that you find established by the evidence in which the act of penile-anal intercourse occurred, including any steps taken by the accused to ascertain whether [the complainant] was consenting to the act of penile-anal intercourse but you cannot take into account the fact that the accused himself might have been intoxicated.

16. If any one of these alternate states of knowledge are proved by the Crown beyond reasonable doubt, then the law provides that the accused is taken to have known that [the complainant] did not consent to the act of penile-anal sexual intercourse and the third element will have been established.

145. There is no challenge to any part of the written directions to this point, the impugned direction is contained in the next paragraph:

17. Stated briefly, and in no way intending to capture all of what the accused said in his evidence, the accused’s position is that the penile-anal intercourse he had with [the complainant] was consensual and that her consent was evidenced by her actions. If you consider that [the complainant’s] actions caused a belief in the mind of the accused that she was consenting to penile-anal intercourse with him and you consider that such a belief was a reasonable one, then the third element would not have been proven.

[Emphasis added.]

146. That part of the direction emphasised in bold was said on the appeal to be fundamentally flawed in two respects. First, it imposes an objective test of reasonableness of the appellant’s belief in consent and, second, it imposes an onus on the appellant to satisfy the jury that he believed the complainant was consenting.

147. No redirection was sought by trial counsel. Although Rule 4 applies, at the hearing of the appeal the Crown did not oppose leave being granted. This concession was appropriate. Both the Crown and senior counsel for the appellant had approved the content of the written directions and neither counsel alerted her Honour to what is now said by the appellant to be an error when she repeated the written direction in the summing-up.

148. The appellant referred the Court to the decision of O'Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45 as authority for what this Court has approved as the direction a jury is to be given where proof of the absence of consent is an element of the offence.

149. In that case, it was submitted on the appellant’s behalf that the test in s 61HA(3)(c) was not a completely objective test. Rather, the subjective element (that is the claim to having an honest belief in consent) was to be tested against whether there were reasonable grounds to hold it. Davies and Garling JJ said:

[124] … Decisions in relation to the test for self-defence such as Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 and Re Conlon (1993) 69 A Crim R 92, were called in aid. It was submitted that the meaning to be given to the words in the statute ought to be seen in the light of the use of similar words in other areas of the criminal law such as self-defence. In Zecevic the Court said that where self-defence is raised the question to be asked is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did. In Conlon Hunt CJ at CL said (at 98):

But it is clear from the formulation of the issue in Zecevic v DPP that it is the belief of the accused, and not that of the hypothetical reasonable person in the position of the accused, which has to be reasonable.”

[125] His Honour said in his written directions:

"Knew she was not consenting" - There are three ways that the Crown can prove that [NRH] knew that [JS] was not consenting:

1) by establishing that at the time of the act he actually knew she was not consenting: or

2) by establishing that at the time of the act he was reckless as to whether she was consenting.

To establish that the accused was acting recklessly, the Crown must prove, beyond reasonable doubt, either:

(a) the accused's state of mind was such that he simply failed to consider whether or not [JS] was consenting at all, and Just went ahead with the act performed, even though the risk that she was not consenting would have been obvious to someone with the accused's mental capacity if he had turned his mind to it, or

(b) the accused's state of mind was such that he realized the possibility that [JS] was not consenting but went ahead regardless of whether she was consenting or not.

If the Crown establishes beyond reasonable doubt that the accused at the time of the act was reckless as to whether [JS] consented to the act, then it is the law that the accused is taken to know that she did not consent to the act.

3) by establishing that at the time of the sexual intercourse he had no reasonable ground for believing that [JS] consented to the sexual intercourse.

For the purpose of determining whether the accused [NRH] knew she was not consenting to the sexual intercourse you must have regard to all the circumstances of the case including any steps taken by [NRH] to ascertain whether she was consenting to the sexual intercourse.

It is the accused's actual knowledge of the lack of consent with which you are concerned. You might therefore ask how the Crown can prove that the accused was aware that [JS] did not consent without an admission from the accused to that effect The Crown asks you to infer or conclude from other facts that it has set out to prove that the accused must have known and that he did indeed know that [JS] was not consenting.

In a situation where the complainant does not in fact consent, the accused's state of mind at the time of the act of intercourse might be that he actually knew that she was not consenting. That is a guilty state of mind for this offence. If the Crown satisfies you beyond reasonable doubt that this was the state of mind of the accused at the time of the act of intercourse, then the third element of the charge has been made out.

On the other hand, you may decide that he might have believed, although wrongly, that [JS] was consenting to intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief. Therefore if you are not satisfied that the accused knew the complainant wasn't consenting, the Crown must prove one of two facts before you can find the accused guilty: either (a) that the accused did not honestly believe that the complainant was consenting or (b) that, if he did have an honest belief in consent, that he had no reasonable grounds for that belief.

It is for the Crown to prove that the accused had a guilty mind, and so if there is the reasonable possibility that the accused did honestly believe on reasonable grounds that [JS] was consenting, then you would have to find that this third element of the offence is not made out, and return a verdict of "not guilty " of this charge.

In determining whether the Crown has proved that the accused actually knew that the complainant was not consenting to intercourse with him you must take into account what steps were actually taken by the accused to ascertain whether the complainant was consenting to intercourse.

(emphasis added)

[126] It is apparent from these directions that the jury was given a construction of s 61HA consistent with what was said in Zecevic and Conlon. The Trial Judge said in that regard:

Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief.

His directions followed carefully those set out in the Bench Book. There can be no criticism of them.

150. In the present case the appellant submitted that the impugned direction wrongly directed the jury that the third element of the offence would not be proved unless the appellant had satisfied them by his evidence that he believed in the complainant’s consent and only then if the jury were satisfied that his belief was reasonable.

151. The Crown submitted that while the directions given by the trial judge in O’Sullivan might be more cogently worded than her Honour’s directions, when her Honour’s directions are reviewed in the context of the summing up as a whole and in the context of the written directions as a whole, this Court would not conclude that the impugned direction inverted the onus of proof.

152. In the Crown’s submission, that is borne out by what follows immediately after the impugned direction in the written directions:

18. I expect you are wondering how the Crown can prove what the accused knew at the time of his actions in the absence of a spoken admission from him in that regard. The Crown is entitled to seek to prove this third element relating to the accused's knowledge or state of mind by asking you to draw an inference or conclusion from all of the facts and circumstances the Crown has set out to prove, either, that the accused actually knew that [the complainant] was not consenting or that he was reckless as to whether she was consenting or that he did not honestly believe [the complainant] was consenting or if he did, he had no reasonable grounds to hold such a belief.

19. Understand that before you can infer or conclude that the accused had one of these guilty states of mind, you must be satisfied that such a conclusion is the only rational inference or conclusion you can draw from all of the facts and circumstances you find proven by the evidence. That is because before you can draw an inference or conclusion against the accused, you must be satisfied that the inference or conclusion you seek to draw is both reasonable and justified. It is therefore important that you examine carefully any possible inference you seek to draw to ensure it is both reasonable and justified.

20. Furthermore, understand that the drawing of an inference or a conclusion from one or more established facts or circumstances to find that another fact or circumstance is proved, involves a logical and rational process of reasoning. You must not draw inferences or conclusions based upon mere speculation, guess work, hunch, suspicion or supposition.

21. In deciding whether this third element has been proved by the Crown, you can have regard to all the surrounding circumstances in which the act of penile-anal sexual intercourse occurred, including but not limited to, the relationship which existed between the accused and [the complainant] at the time of the intercourse, the accused's actions and/or words, [the complainant]'s actions and/or words, the nature of the act and the condition of [the complainant] at the time of the intercourse.

[Emphasis added.]

153. In the summing up her Honour elaborated on the written directions when she said:

I expect you are wondering how the Crown can prove what an accused person knew at the time he or she does something in the absence of a spoken admission from that person saying loud [sic] what was going on in their mind at a particular time?

The Crown is entitled to seek to prove this third element relating to the accused's knowledge or state of mind by asking you to draw an inference or conclusion from all the facts and circumstances the Crown has set out to prove either that the accused actually knew [the complainant] was not consenting, or he was reckless as to whether she was consenting, or that he did not honestly believe she was consenting, or if he did he had no reasonable grounds to hold such a belief. "

[Emphasis added]

154. Very shortly afterward, her Honour said:

As you are aware, the central dispute in the trial is whether the Crown has proved beyond reasonable doubt that [the complainant] did not consent to penile-anal sexual intercourse, that is element 2, and whether the Crown has established the accused knew she was not consenting, that is element 3.

[Emphasis added.]

155. There is some force in the Crown submission that in light of her Honour’s repeated directions that the Crown bore the onus of proof of the third element the jury could not have understood the impugned direction to have suggested otherwise. I also accept that one way of interpreting her Honour’s reference in the written direction to the complainant’s actions “causing the appellant to have a belief that she was consenting” was to remind the jury that it was the appellant’s case (either in cross-examination of the complainant or his evidence) that he believed she was consenting, not that she was directing them that it was for the appellant to prove that fact.

156. The Crown submitted (correctly) that, properly understood, s 61HA(3)(c) does impose an objective test, in the sense that (ignoring the onus of proof) the grounds which might lead to a belief of consent must be objectively reasonable. However, this is not the equivalent of the trial judge’s direction that it was for the jury to “consider whether such a belief [that the complainant was consenting] was a reasonable one”. The latter formulation implies that the jury should ask what a reasonable person might have concluded about consent, rather than what the accused himself might have believed in all the circumstances in which he found himself and then test that belief by asking whether there might have been reasonable grounds for it. In many such contestsed cases, perhaps all, there might be a reasonable possibility of the existence of reasonable grounds for believing (mistakenly) that the complainant consented and other reasonable grounds suggesting otherwise. A reasonable person might conclude one way or the other but the statutory test is whether the Crown has proved the accused “has no reasonable grounds for believing” that there was consent. I observe in passing that, in the context of self-defence, the real distinction between what a reasonable person might believe and what the accused might have reasonably believed in all the circumstances, though on the surface perhaps somewhat finer than that to which I have adverted, was the emphasis by Mason J (as his Honour then was) in Viro v R [1978] HCA 9; 141 CLR 88 at 146.

155. Although the appellant’s counsel accepted that the main focus of senior counsel’s closing submissions to the jury was the complainant’s unreliability, it remained incumbent on the trial judge to direct the jury that it was for the Crown to negative any reasonable possibility that the appellant believed (even if wrongly) that she was consenting. It was also incumbent on the trial judge to direct the jury that, in considering whether there were reasonable grounds for that belief as the statutory test requires.

156. Having concluded that her Honour’s directions as to how the jury were to approach their consideration of the appellant’s state of mind were in error, it is not necessary to determine the third particular of Ground 2, namely that the directions failed to detail or explain the evidentiary basis for the appellant’s claim to have reasonably believed that the complainant had consented.

Orders

159. In the event that the first ground of appeal failed, the appellant accepted that he could not resist an order for a retrial under s 8(1) of the Criminal Appeal Act. Accordingly, I would propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. Conviction quashed.

4. Order a new trial.

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Decision last updated: 09 May 2017