Neilsen-Titus v Beale
[2023] NTSC 63
•14 July 2023
CITATION:Neilsen-Titus v Beale [2023] NTSC 63
PARTIES:NEILSEN-TITUS, Alexander
v
BEALE, Naomi Gail
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 21/2021 (22003281)
DELIVERED: 14 July 2023
HEARING DATE: 25 March, 19 April, 17 June and 29 June 2022
JUDGMENT OF: Barr J
CATCHWORDS:
CRIMINAL LAW – SUMMARY HEARING – LOCAL COURT – Appellant found guilty of assault – Circumstance of aggravation – Indecent assault – Miscarriage of justice – Verdict of guilty quashed – Case remitted for retrial
Local Court (Criminal Procedure) Act 1928, s 163(1)(b), s 177(2)(c), (d), (f)
McMaster v The Queen (1994) 4 NTLR 92; De Silva v The Queen [2019] HCA 48, 268 CLR 57; Hofer v The Queen [2021] HCA 36, 95 ALJR 937; Dansie v The Queen [2022] HCA 25; FN v The Queen [2021] NTCCA 5
REPRESENTATION:
Counsel:
Appellant:M Thomas
Respondent: S Dayeian
Solicitors:
Appellant:John Toohey Chambers
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Bar2309
Number of pages: 35
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINNeilsen-Titus v Beale [2023] NTSC 63
No. LCA 21/2021 (22003281)
BETWEEN:
ALEXANDER NEILSEN-TITUS
Appellant
AND:
NAOMI GAIL BEALE
Respondent
CORAM: BARR J
REASONS FOR DECISION
(Delivered 14 July 2023)
This is an appeal against conviction (finding of guilt) brought pursuant to s 163(1)(b) Local Court (Criminal Procedure) Act 1928 which grants a right of appeal to this Court from a conviction which involves an error of fact, error of law or mixed fact and law.
On 9 June 2021, the appellant was found guilty of indecently assaulting a 17 year old female, JW, in October 2019.[1] The appellant was 20 years old at the time of the alleged offending.
The appellant did not dispute at trial that, lying very close to JW, he (1) had pulled his shorts down, (2) had an erection, (3) was masturbating, and that (4) when the complainant got up from the bed to leave, he pulled her back onto the bed and held her there. With one arm around the complainant’s body, the appellant fondled her breast while continuing to masturbate. The appellant admitted that he had taken down his pants under the sheets. He said that he initially believed that the complainant was consenting to being touched in a sexual way. He claimed that he only came to realize at a certain point that the complainant was not consenting, or that she may not be consenting, when she said ‘No, Z, stop’[2] in a firm or very stern voice. He admitted that she had said ‘no’ on more than one occasion at a slightly earlier time. In any event, the appellant claimed that when he heard JW saying ‘No’ and ‘Stop’ in a firm or very stern voice, he moved away from the complainant such that there was no longer any physical contact, but he still continued masturbating because, as he explained, “I was getting close to finish so I pulled out a condom and put it on and finished in the condom”.
An important aspect of the defence case at trial, which was also the focus of the appellant’s case on appeal, was whether the prosecution had proved beyond reasonable doubt that the appellant knew that the complainant was not consenting to the acts engaged in by him which constituted one or more direct applications of force to the complainant. That is the significance of the appellant’s evidence to the effect that he stopped touching JW (and moved away to quietly finish himself off) after he became aware that JW was not consenting or may not be consenting to his touching her.
In her reasons for decision,[3] under the heading “Elements of the offence”, at page 1, the trial judge set out the elements of the offence charged, as follows:
Under s 188(1) & (2) … the Assault must be unlawful. In order to prove an assault, the prosecution must prove Beyond Reasonable Doubt under the relevant criminal responsibility provision, s 31(1) that:
1) the acts (direct applications of force as particularised, MFI 4) constituting assault were intended or foreseen by the defendant as a probable consequence of his conduct;
2) the acts were an indecent assault as they constituted touching with a sexual connotation;
3) the complainant, JW, did not consent to the sexual touching;
4) the defendant intended to touch JW sexually without her consent as he knew that JW was not consenting or knew that she may not be consenting and proceeded to touch her sexually regardless;[4]
5) the defendant held no mistaken belief that JW consented to the indecent assault.
If the defendant mistakenly believed that JW consented to the acts alleged he will NOT have intended to assault her without her consent. The prosecution must therefore prove beyond reasonable doubt that the defendant held no mistaken belief JW consented [to] the acts alleged.
6) such mistaken belief does not have to be based on reasonable grounds.
However, if there is no reasonable basis for such mistaken belief the tribunal of fact is entitled to take that into account in deciding whether or not the Crown has proved that no mistaken belief existed.
The reference to ‘MFI 4’ was to exhibit P4, a document signed by the prosecutor headed ‘Particulars of Physical Acts’ which listed 12 such acts, as follows:
On 29th October 2019, at Palmerston the defendant, NEILSEN-TITUS –
Being a male, and JW (“the complainant), being a female–
Whilst clothed, pushed his erect penis against the back of the complainant;
Touched on the hips and waist with his hands;
(Whilst naked from the waist down, again pushed his erect penis against the complainant’s back);
Grabbed the complainant’s breasts
Grabbed the complainant around her torso and pulled her towards him;
Held the complainant’s breasts whilst masturbating;
(Grabbed the complainant by her right wrist and held it to his body whilst masturbating);
Touched the complainant’s buttocks;
Squeezed the complainant’s right breast and nipple;
Pulled the complainant onto the bed when she tried to get up;
Placed his hand into her shorts and moved his hands over her vaginal area;
Squeezed the complainant’s buttocks and breasts whilst masturbating
Neither party on appeal criticised her Honour’s statement of the elements which the prosecution was required to prove beyond reasonable doubt. However, par (6) is not correct. The criminal responsibility provisions in Part II, Division 4 of the Criminal Code contain the following section:
32Mistake of fact
A person who does … an act … under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for it to any greater extent than if the real state of things had been such as he believed to exist.
The mistaken belief must thus be both an honest belief (that is, genuinely held) and a reasonable belief (based on reasonable grounds). Her Honour’s statement appears to have been in reference to the criminal responsibility provisions in Part IIAA, Division 3, Subdivision 3 of the Criminal Code, s 43AW, which (in brief) provides that a person is not criminally responsible for an offence if, at the time of offending, the person is under a mistaken belief about facts, such that the existence of that mistaken belief negates any fault element applying to the relevant physical element of the offence. It is not necessary that the mistaken belief be a reasonable belief but, under s 43AW(2), the tribunal of fact may consider whether the mistaken belief was reasonable in determining whether the defendant genuinely held the mistaken belief.
Relevant to this appeal, the judge’s error does not appear to have disadvantaged the appellant insofar as her Honour apparently proceeded on the basis that any mistaken belief held by the appellant did not have to be based on reasonable grounds.
In her Reasons, under the heading ‘Discussion’ at page 19, the trial judge summarised the issues in the case as follows:
In this case there is no dispute that the defendant engaged in sexual acts and that he directly applied force to JW’s body by touching her with the intention to obtain sexual gratification. There is also no dispute that at certain times when the defendant touched JW he was engaged in a sexual act to obtain sexual gratification in that he was masturbating his penis by directly touching his penis, having removed his clothing from the bottom half of his body and becoming naked from the waist down, and he had an erect penis and was sexually aroused. There is some dispute between the prosecution and defence cases about exactly which parts of JW’s body he touched and when he stopped touching her; however it is common ground that he did remove his clothing and masturbate his erect penis while touching her.
The issue in this case is whether JW consented to be touched in a sexual way and, if she did not consent, whether the defendant knew that she did not consent, alternatively knew that she may not be consenting and proceeded regardless.
The Crown must prove Beyond Reasonable Doubt that the defendant intended to assault JW without her consent, and that he knew she was not consenting or that he knew she may not be consenting but proceeded regardless. If the defendant mistakenly believed that JW was consenting, he will not have intended to assault her without her consent. The Crown bears the burden to prove the absence on the defendant’s part of a genuine belief that the victim was consenting, whether reasonable or otherwise.
After the trial judge set out the ‘Issues in Dispute’, her Honour stated:[5]
In this case if I accept the evidence of JW there can be no doubt that she did not consent. If I accept JW’s evidence she also made it very clear to the accused that she did not consent by words and conduct. Her evidence is that the accused knew she was not consenting or he knew that she may not have been consenting and proceeded regardless.[6]
If I accept the version of events provided by the accused, his evidence is that he initially believed that JW was consenting, whether she was actually consenting or not. His evidence was that he had a genuine/honest belief that she was consenting and that he did not intend to assault her without her consent.[7] The accused’s evidence was that after touching JW with a sexual intent, taking his pants off and starting to masturbate himself, touching JW again with a sexual intention, he came to realise at a certain point that she was not consenting or knew that she may not be consenting and that is when he stopped touching her and took a condom from the drawer and ‘finished himself off’ by ejaculating into the condom.
Her Honour then went on to consider and analyse the evidence, starting with the evidence of the complainant. By way of background, the appellant and JW had previously been in a sexual relationship in 2018, for an unspecified period. In the course of that relationship, JW had moved out of her family home and had lived with the appellant and his parents. They ended their relationship in April 2019 but had remained in contact with one another. Both went out with other people. At the time of the alleged offending, the appellant had a girlfriend. JW had just separated from her boyfriend of about 5 months.[8] Her Honour found that she was feeling “very sad and vulnerable”.
I extract below part of the judge’s summary of the evidence of the complainant.[9] The extract is as it appears in the Reasons. It may be noted that the first three paragraphs below are the judge’s summary of the evidence to a certain point, after which her Honour set out 15 direct quotes (in the first person) taken from the transcript of the audio-visual recording of the complainant’s police interview.[10]
JW and the defendant then went to the defendant's house. They had earlier mentioned going to his house to watch Animé. At his house he put on Attack on Titan. She initially sat in his gaming chair as the defendant had tried to get her to sit on the bed but she did not want to, but when she became cold she moved to his bed and got under the covers. JW stated that the defendant wasn't under the sheets he was on top of the sheets. She turned to her side to watch TV.
The defendant then put his arm under her and spooned her but she did not say anything though she felt this was weird. When the defendant then tried to hug her she said Nah and she moved further to the edge of the bed to avoid him because he had an erection and pushed it up against her back. The defendant then pretended to jerk off by making the sheets go up and down. He then started running his hand along her waist and grabbing her breast. JW said `stop, don't do that, like you have a girlfriend... '. JW's evidence was that she was concerned that the defendant had a girlfriend and he had cheated on her before and she did not want anything to do with that.
The defendant then stopped pretending then commenced 'jerking off'. JW's evidence is that was that [sic] at this time the defendant got closer to her and put his left arm on her right boob and started fondling her and he got his other hand and started touching her thigh and putting his hand in her shorts.
1)I said 'yeah' and then I pushed him back with my hand on his stomach
2)I said like 'stop' and then he just kept going ah
3)and then I said um ‘do you want me to leave the room?'
4)and he said ‘no stay here' and I said 'well I'm gonna leave anyway' because I felt uncomfortable
5)and I tried to get up and then he pulled me back into the bed and
6)had his arm across me like that and basically just held me there the entire time and he was saying things in my ear like ...
7)……'you know I wanna have sex with you again' um and was basically implying that we should have sex and I'm like 'I can't have sex with you'
8)and he's like 'why' and I'm like because you have a girlfriend……
9)I kept saying no and tryna pull away and he just kept holding me there and
10)I pretty sure I tried to get up again....
11)I said no and he pulled me back again and he was touching me like
12)He stopped jerking off a few times and kept touching me like under my pants and on my boob area and then he reached into his drawer and he put a condom on and he finished into it and said ….
13)I was like that's basically rape……
14)I messaged him the next day — screen shot
15)I complained to Michael — screen shot
JW's evidence was that she verbally told the defendant No and Stop on several occasions when he was initially sexually touching her. She stated that when the defendant started spooning her she was a bit uncomfortable and thought it was weird but when he tried to hug her and he pushed his erection against her back she said nah, gave him a gentle push and she moved to the edge of the bed. She said there was about 10 minutes before he touched her again. JW's evidence was that he was pretending to masturbate. When he was touching her sexually by running his hand along her waist he then put his hand under her and was grabbing at her right boob her evidence was she said 'stop' but he just kept going. She said he laughed and he started masturbating and he was breathing deeper and she pushed his hand away and she said also Are you alright there? and he said yeah I'm fine.
JW said if she was using a bit of humour and using a jokey tone initially and giggling a bit she was not in a playful mood and did not intend to be playful. JW did not agree that she was giggling the whole time as suggested by defence counsel or that she sounded playful. She stated he touched her on her hips and butt and squeezed it and then touched her on her vagina over her underwear inside her shorts. She said the incident was not playful for her. JW pushed him away again and said stop and he laughed again and started grabbing her harder and said oh you know what you do to me and she said to him 'this is basically rape'. When she was asked to clarify what she meant when she said it 'jokingly' she stated in her interview with Police she meant that she said it quietly but he heard it, she did not say it sternly but she did say it, however he just kept going.
JW said she thought he was still pretending to masturbate but then when the defendant flung the sheets back she realised he was actually masturbating and was naked from the waist down. She was shocked so she asked him if he wanted her to leave the room. JW told him she was leaving and she tried to get up and leave the bed but he prevented her from leaving by pulling her back onto the bed and holding her there. She stated she could not leave because he had his arm wrapped around her body and he was fondling her breast whilst he was masturbating. She said she kept pushing him away and pretending to ignore him and watch Animee [sic]. Her evidence is that she then said sternly "No Z Stop it", and he stopped touching her for a bit but then came back and started touching her breast again. She said he was still masturbating whilst holding her and touching her breast after she said this. She tried to get up multiple times. JW stated that he did stop touching her eventually and took his arm away from her boob and he got up and went to a side dresser and put a condom on and that's when he had finished and afterward he went and put the condom in the bin. JW's evidence was that when they crossed paths the defendant apologised to her. He said can I have a hug?, she was reluctant to hug him but did, and he said I'm sorry.
The lengthy extract in [12] was taken from the judge’s summary of the evidence of JW. Her Honour did not make findings in that part of her reasons.
Relevant to the issue on appeal discussed in [4] above was a brief conversation between JW and the appellant, which JW initially said took place after the commission of the alleged offence. In her recorded interview with police detectives on 16 January 2020 (more than two months after the relevant events), JW said that she spoke to the appellant just after the appellant had finished masturbating and had ejaculated into a condom.
The context is important and I set out below an extract from the transcript of the interview between JW and police (underline emphasis added):[11]
Um, yeah, and he started touching me and then he started – he stopped and he started jerking off and I’m like, “What are you doing”, and he’s like, “Oh, you know, haha” and I’m like “Mm, okay”, and I just pretended to ignore it and then watch Attack on Titan and then he got closer to me and put his, um, left arm on my right boob and he started fondling me and then he got his other hand and started touching my thighs and putting his hands in my shorts, um, and then he pushed his boner up against my back and he said, “Do you feel that?” and I said “Yeah” and then I pushed him back with my hand on his stomach. I said like “Stop” and then he just kept going, ah, and then I said, um, “Do you want me to leave the room?” and he said, “No stay here” and I said, “Well I’m gonna leave anyway” because I felt uncomfortable and I tried to get up and then he pulled me back into the bed and had his arm across me like that and basically just held me there the entire time and he was saying things in my ear like, “You know what you do to me” and, you know, “You know that I wanna have sex with you again”, um, and he was basically like implying that we should have sex and I’m like, “I can’t have sex with you” and he’s like “Why?” and I’m like, “Because you have a girlfriend” and you know, it still wasn’t clicking what he was doing was wrong, um, but the main thing that was just coming in my head was that he was – had a girlfriend and what he was doing was wrong morally because he has a girlfriend, um, and then, um, I kept saying “no” and tryna [sic] pull away and he just kept telling me there and I – pretty sure I tried to get up again, I said “no” and he pulled me back again and then he was – he kept touching me, like, he stopped like jerking off a few times and kept touching me under my pants and on my boob area and then he reached over into his draw[er] and he put a condom on and he finished into it and then when he finished he said, “Oh, would’ve been better if I had another place to finish” and I was like, “That’s basically rape” and he’s like, “That wasn’t, I’m not as fucked up as [a] rapist”, and I was like, wow, that was really fucking, that was really weird because who does that. But afterwards he – I just wanted to leave I didn’t want to say anything to make him angry ’cause he was my ride home, um, afterwards he asked me for a hug and he said, “I’m sorry” as if he knew what he was doing was wrong and he said “I’m sorry”, and I didn’t say “That’s okay”, I just said, “All right, um, can I go home after this episode ends”, and he’s like “Yeah sure” and then he takes me home and the entire ride home he was really empathetic and I think he realised what he did and, um, he tried to give me a hug and I just really wasn’t reciprocating it ….
It is clear, from the complainant’s free narrative extracted in the previous paragraph, that she told police investigators that her comment about rape was made to the appellant in the course of a conversation after the alleged offence had been committed; moreover, that it was in direct response to the appellant’s statement, “Oh, would’ve been better if I had another place to finish”. This appears from the sequence which I detail below:-
· Appellant ‘finished’, that is, ejaculated into a condom.
· Appellant then said, “Oh, would’ve been better if I had another place to finish”
[As JW apparently understood, the appellant meant that he would have preferred to have had sexual intercourse with JW, the ‘other place’ presumably being her vagina].
· JW responded by saying, “That’s basically rape”.
· Appellant said, “I’m not as fucked up as a rapist”.
[It is unclear whether JW then thought to herself, or whether she said to the appellant, “Wow, .... That was really weird because who does that”]
· Appellant asked JW for a hug and said, “I’m sorry”.
· JW replied, “All right, can I go home after this episode ends”.[12]
· Appellant replied, “Yeah sure”.
Her Honour’s summary of the complainant’s evidence, set out in [12] above, included the rape statement reference at indented par 13. That summary accurately reflected the sequence from that part of the interview between JW and police set out in [15] and itemized by me in [16]. However, her Honour’s summary of the complainant’s evidence also included a second rape statement reference.[13] That second reference was made at a later stage of JW’s interview with police, when she gave a different account as to when, in the sequence of events, she had mentioned ‘rape’ to the appellant. I set out that account below:[14]
Um, so he started touching me ... and then he put his right arm – oh, right hand over my right – ah, left – right – wait, his left arm under – on my right breast and then he started grabbing it and fondling it, um, and then as he was – he was doing that probably like a solid five minutes and I was like, I said stop and then he just kept going, he like laughed and then I’m pretty sure that’s when he started jerking off ’cause he started, like, having deeper breaths and I said, you know, like I pushed his hand away and I said, “Are you alright there?” and he said, “Yeah I’m fine”, um, then he put his hand back, he got his – he stopped and then he had his right – his, yeah his right hand and he started touching my hips and then he like went from the butt side of my pants, he went – he wasn’t touching my private areas – well he was but like over – over my underwear, he was touching and caressing my butt and squeezing it and then he moved to my vagina, um, for like a second and then I’m pretty sure something clicked in his head that that was too far but the whole thing was too far but, yeah, and then he went back to my ass, um, and then I, um, pushed him away again and I said “stop” and then he just like laughed again, like, he was – his head was right next to my ear, um, and then he got like more aggressive with it and started grabbing me a little bit harder and he said, “Oh, you know what you do to me” and I said, “This is basically rape” and then he – oh, no – yeah, yeah that was when I said it “that was basically rape” and he took his hand away and started jerking himself off again, um, and then he got – he kept his hand on my right boob, went under my bra and he started playing with my nipple, um, he started like squeezing it and then I was tryna push him away the entire time he was grabbing my boobs, um, but I – he kept like going back after like two seconds, I’d push away and then he’d go back, um, and then he flung the doona off of him and he had no pants on or anything, so he had removed his pants without me knowing, um, yeah he – and then he did that and then he started like openly – ’cause I thought he was still playing around when he would touch me and then go back to doing that to the sheets but I thought that was just him pretending and that that it wasn’t him actually doing it and then he flung the sheets and I was like ‘woah’, I was really taken back, and then I like pushed his arm away and I was like, “Do you want me to leave the room?” and he said, “No, stay” and I said, “Well I’m gonna leave anyway” and I went to get up, I had one, this leg off the bed and I was standing, this one was still on and he pulled me back next to him and, um, and I was really shocked ’cause I was like, ‘there is no way that he just did that’, like, ‘that’s really weird’, and then he kept doing that and I just felt so awkward ’cause I was just laying there and I was like, ‘what do I do’, like, I can’t, I can’t like hit him or anything ’cause that’s – he’s my ride home, like, who is gonna be awake at this time and who could come pick me up and I didn’t wanna – like, I think part of me knew that it was wrong but I didn’t want to call one of my friends and say that that just happened ’cause I didn’t think – I don’t think I realised just what he had did in that moment, um, and then I was just laying there, so I turned to my side and I was like, I’m just going to pretend to ignore it and I like continued to watch animé and he kept grabbing my boob and I kept pushing away and then – ’cause he stopped touching me, like on the lower half of my body, but he kept touching my boob, um, and I just kept watching TV and then he reached – he took his arm away from my boob and then, um, went to a side dresser and put a condom on and that’s when he had finished and then he, um, afterward when he was putting the condom in the bin, I think I went to get up to get my phone from my bag, um, and so we crossed paths and then he’s like, “Can I have a hug?” and I’m like, “Okay” and I was very reluctant to, like I just felt so disconnected from him it was – I felt so gross and I was like “yeah” and he was like, “I’m sorry” ... and then, ah, I was like, “Can I go home after this episode?” just so I had a reason, I was like, “Oh yeah”, you know, I’m tired, can I go home after this episode?”
The narrative extracted in the previous paragraph (‘the second narrative’) is very similar to that extracted in [15] above (‘the first narrative’). However, there are two significant differences. The first difference is that there is no mention in the second narrative of the appellant saying “Oh, it would have been better if I had another place to finish”. In the first narrative, that particular statement was the conversational trigger for JW to respond “That’s basically rape”. It is difficult to know how the statement attributed to the appellant in the first narrative fits with the sequence of events described by JW in the second narrative.[15] The second difference is that, in the second narrative, JW’s statement “This is basically rape” was said when the alleged assault was underway or continuing.[16] JW said that, after she said the words ending “basically rape”, the appellant took his hand away and started jerking himself off again, but still kept his hand on her right breast, indeed under her bra, squeezing and playing with her nipple. If the second narrative were accepted in this respect, it would be evidence that JW made known to the appellant, in strong terms, her view about what he was doing to her. It could enable or support the drawing of an inference beyond reasonable doubt that the appellant knew that JW was not consenting to any ongoing sexual touching.[17]
Even the second narrative is unclear; the internal inconsistency is shown in the underlined part of the extract of JW’s police interview in [17] above. If JW said “This is basically rape”, it would more likely refer to something which was happening at the time she said those words. If she said “That was basically rape”, it would more likely refer to something which had already happened, perhaps even more so than her words “That’s basically rape” in her first narrative. The use of the demonstrative ‘that’ denotes some level of distancing or detachment, whether in place or time, and “was” is the past tense. It is unclear from JW’s own account in the second narrative whether she said “This is” or “That was” (or “That’s”).
On the issue as to when the rape statement was made by JW, the appellant answered questions in examination in chief as follows:[18]
Do you recall her at any point that night saying to you, “That’s basically rape?” --- When we crossed paths when we were both standing up and she was going to get her phone.
Do you recall what you said, if anything? --- I don’t believe I said anything back to that.
The appellant thus impliedly accepted that the statement had been made to him by the complainant.[19] However, the appellant’s evidence was that the words were said when he and JW “crossed paths”, that is, after they had both got up from the bed. That must be understood as being a point in time after the alleged offending had taken place. The appellant was not cross-examined to contradict his evidence as to when JW said “That’s basically rape”. Indeed, the prosecutor appeared to accept the appellant’s evidence, as appears from the following passage:[20]
You’ve used the expression that you crossed paths?---Yes.
What did you mean by crossed paths?---I got off the right side of the bed. She got off the left side of the bed. The bin is on my left side and her bag was on my right side. So we crossed at the edge of the foot of the bed.
Okay. Did you hug again?---Yes.
You did? And what did you say to her?---This is at the time that she said that ‘it was basically rape’ so I didn’t say anything. I hugged her and then continued walking to the bin.
Significantly, the appellant’s evidence was consistent with JW’s first narrative as to when the words “That’s basically rape” were said.
In her reasons, her Honour accepted one of the two statements in JW’s second narrative and made a finding that JW said “this is practically rape”, during the incident.[21] That, in combination with some other matters referred to by her Honour, was “negative conduct demonstrating an absence of consent”.[22] Her Honour then explained that JW’s statement in the second narrative was a matter which her Honour took into account to find that the appellant knew that JW was not consenting, or knew that she may not be consenting and proceeded regardless.[23] Her Honour’s finding in this respect was as follows:[24]
JW said ‘this is basically rape’ during the incident and the defendant heard this and understood what it meant.
Shortly afterwards, as the judge continued to set out her reasons for finding that the appellant knew that JW was not consenting (or knew that she may not be consenting), her Honour made the following statement:[25]
His evidence discloses that she did say “this is practically rape” to him in the room [but] when and where differs.
That finding is wrong in two respects, one significant, the other less so. The less significant is that the word ‘practically’ was not used, by anyone. The word used was ‘basically’. The more significant error is that the appellant did not state (or admit/concede) that JW said, “this is practically rape”. It is therefore difficult to understand how the appellant’s evidence could be said to have ‘disclosed’ that those words were said. This is not a matter of mere semantics. The significance of “this is ...”, rather than “that was ...” is explained in [19] above. The judge wrongly attributed to the appellant an acceptance (in an unspecified part of his evidence) that certain words were said by JW which, if they had been said, would have made it more likely that they were said to the appellant while the alleged assault was ongoing and thus provided evidence of lack of consent being communicated to him.
In summary of the issue discussed in [14] – [25], the judge found that JW said “This is basically rape”, and that she said those words to the appellant while the assault was ongoing. Her Honour did not give reasons for not accepting the sequence of events in the complainant’s first narrative and for accepting the sequence based on one of the versions given in the complainant’s second narrative. Her Honour then rejected the evidence of the appellant, even though it was consistent with the complainant’s first narrative. Again, her Honour did not give reasons for doing so. Finally, without reference to the trial transcript, her Honour erroneously attributed to the appellant, or to the appellant’s evidence, some unspecified disclosure that the complainant had said “This is practically rape” [italic emphasis added], rather than the statement “That’s practically rape” about which the appellant gave evidence in chief and in cross examination.
In the course of the prosecutor’s submissions, the judge raised the rape statement in relation to the issue of knowledge on the part of the appellant of lack of consent:[26]
Her Honour: another example of her clearly indicating that she is not consenting to the sexual activity and then she alleges immediately after that, there is a significant incident that occurs, which is him touching her on her vagina, which the defendant agrees did happen. But she alleges that it happened after she had said to him “That’s practically rape”,[27] and those words the prosecution are saying are unequivocally very clear words that this is not a consensual thing that’s occurring in the bedroom, in the bed.
The Prosecutor: .... The word ‘rape’ has a very clear meaning. ... In my respectful submission, in ordinary parlance in society, is a clear warning sign, and they probably couldn’t be a more clear one than that word, and particularly in terms of people who were – who are either in or have just been in, some sort of sexual activity.
Her Honour: ... Do you also say it’s significant about where it was the complainant alleged those words were uttered?
The Prosecutor: Yes, absolutely, in terms of the transaction, yes.
Her Honour: Yes, in terms of the transaction - - -
The Prosecutor: Crystal clear.
Her Honour: - - - and the relevance to whether or not it was evidence of a lack of consent. Not only that she was not consenting but the defendant, on acknowledging that he heard the words, but he said they were in a different place. They weren’t during the alleged incident, but after. But if they were said during the alleged incident, and he had heard them during the incident, it would find it [sic] very difficult to say well, you know, that was – ‘I didn’t know she was not consenting’.
The Prosecutor: That’s right. If your Honour looks at it logically. First of all he acknowledged he heard them. And that’s a major factor. Second of all, it was never put to her for instance, she said ‘no’ at the end or that is after any activity had ceased. ... and thirdly, for instance, it was never put to her that she might have said it twice. That could be another explanation. Never – never challenged on that. And of course, then the last one is the absolutely unequivocal meaning of those words – which is ‘this is non-consensual’. And so, in my submission, the combination with that, and the message the next day, is significant corroboration that he – and it’s really a situation where we say simply, once you combine all those things you must reject his evidence.
And her evidence stands in the situation where it’s not a choice between him or her. On her evidence itself, should be accepted on its own. It is reliable, consistent, credible and she was not shaken in my submission, in cross examination.
It is unfortunate that, in circumstances where the complainant had given different accounts as to when the rape statement had been made by her, and where the difference between those accounts was particularly relevant as to whether the prosecution had proven, beyond reasonable doubt, that the appellant knew that the complainant was not consenting to being sexually touched by him (or knew that she may not be consenting), the prosecutor submitted that the judge should find that the rape statement was made by the complainant during the incident because defence counsel had not cross-examined the complainant to contend that the statement was made after any activity had ceased or had not put to her that she might have said it twice. It was for the prosecution to prove all the elements of the alleged indecent assault beyond reasonable doubt, irrespective of any cross examination by defence counsel. It was the obligation of the prosecutor, not of defence counsel, to clarify inconsistencies in different parts of the complainant’s evidence. Irrespective of whose obligation it was, the prosecutor did not make submissions at this crucial point, or at any time, in relation to how the judge might analyse and possibly reconcile the first narrative and the second narrative.[28] That exercise was necessary before her Honour could find that the second narrative was correct and hence could be relied as evidence of proof beyond reasonable doubt that the appellant knew that the complainant was not consenting or may not be consenting to his touching her.[29] The prosecutor’s combination submission that the complainant might have said “That’s practically rape” twice, and that defence counsel had failed to put that possibility to the complainant, was an invitation for the judge to reverse the onus of proof.
The judge devoted several paragraphs of her Reasons to “Matters not put to JW in cross examination”.[30]
The first matter mentioned by her Honour was that the complainant was not challenged about allegedly telling the complaint witness, MF, “that the defendant had told her he would not try and make a move on her”. Her Honour then observed, “As such I give this no weight as defence did not challenge JW in cross examination about this.” The evidence of MF was that, on the day after the alleged offending, he spoke with the complainant by phone and saw her in person. She told him that, before she and the appellant returned to the appellant's home, the appellant had said to her, “Don't worry, I won’t try anything”, which made her think that “nothing was going to happen”.[31] The complainant gave very different evidence in cross examination,[32] referred to at [40] below. She agreed that the appellant had said to her that, if she came back to his place, he would try to make a move on her. That was directly contrary to her statement to MF. It is true that defence counsel could have put to JW, in cross examination, that she had told MF a lie, or at least called upon her to explain the inconsistency with a view to undermining her credibility or reliability. However, one possible reason for defence counsel not cross examining JW on her inconsistent statement(s) is that there was no need: JW agreed with defence counsel that the appellant had said (substantially) what he claimed to have said. In the circumstances, there seems little relevance in the fact that defence counsel did not cross examine JW on her inconsistent statements. It is also difficult to identify the specific evidence to which the judge said she gave no weight, although, in context, her Honour must have been referring to some part of the evidence given by the appellant.
In her further consideration of matters not put to JW in cross examination, under the side heading “This is practically rape”, her Honour found, “The defendant admitted that this was said during the incident and however JW’s evidence was it was during the sexual assault and not when they crossed paths after the incident”.[33] It is unclear what her Honour meant by her use of the word ‘incident’, in particular, whether she meant the entire incident or only that part of the overall incident in which the alleged sexual assault occurred. However, to the extent that her Honour meant that the appellant admitted that JW said to him “This is practically rape”, that was wrong. The appellant made no such admission. The appellant did admit that a statement “That’s basically rape” was made by the complainant, but stated that it was made in a different context, after the events of the alleged sexual assault. Therefore, to the extent that her Honour found that the appellant admitted that the complainant made the rape statement to him “during the incident”, in the sense of while the assault was taking place, that finding was also wrong.
Immediately after the finding discussed in the previous paragraph, her Honour continued:
As such I can accept that these things were said by JW and that they occurred as she said they did if I accept her account as they were not put into dispute during cross examination.
Her Honour’s observation suggests that, in her assessment of the evidence of the complainant, she either did not recognize the inconsistency between the first and second narratives or considered that it was open to her to accept the second narrative without analysing or dealing with the significant difference between the two narratives, on the basis that there had been no cross examination on the issue. In this respect, her Honour had apparently accepted the prosecution submission criticised by me in [28] above. To the extent that, in accepting the complainant’s account, the judge disbelieved or rejected the appellant’s contrary account because defence counsel had not disputed the complainant’s account in cross examination, her Honour was in error. As the plurality explained in Hofer v The Queen, it is not uncommon in criminal proceedings for matters which have not been put to the appropriate Crown witness to emerge from the evidence of an accused person, including during the course of cross-examination.[34] Consistent with the reasoning of the plurality, that it would be wrong for a prosecutor to suggest that an accused, whose counsel has not cross-examined a Crown witness on an issue, should not be believed on that issue,[35] it would be wrong for a trial judge to accept the evidence of a Crown witness and thereby disbelieve a defendant because matters had not been put in cross examination. As the plurality explained, there may be many explanations for matters not being put in cross examination which do not reflect upon the credibility of an accused.[36] In the present case, the fact that particular matters may not have been put to the complainant in cross examination did not excuse her Honour from having to give proper consideration to the appellant’s evidence. Nor did it excuse her Honour from having to carefully consider the evidence of the complainant, including the internal inconsistencies referred to above, consistent with the Murray direction which her Honour gave herself.
I turn once more to consider the sequence of events described in the complainant’s first narrative and set out by me in [16] above. It is entirely logical that JW’s statement “That’s basically rape” was said in response to the appellant’s statement “Oh, would’ve been better if I had another place to finish”, the inference being that the complainant’s statement was made after the alleged constituent acts of the offence had been committed. It remains unclear whether, in the second narrative, JW claims to have said “This is basically rape” or “That was basically rape”. However, in the absence of reasons, there was no logical basis for the judge to have made the finding set out in [23], rather than that asserted in the complainant’s first narrative.
Her findings as to when the rape statement was made, and the precise words used, were relied on by her Honour to make the consequential finding of “negative conduct demonstrating an absence of consent”.[37] That finding was integral to the judge’s ultimate findings beyond reasonable doubt that the appellant intended to touch JW sexually, and that he indecently assaulted her without her consent as he knew that JW was not consenting or knew that she may not be consenting and proceeded to touch her sexually regardless.[38]
There is another aspect which I consider relevant. Her Honour placed significant emphasis on the complainant’s use of the word ‘rape’ in the second narrative as reflecting a negative response to the appellant’s conduct, “demonstrating an absence of consent”.[39] However, the extent to which the complainant’s negative response was obvious or apparent to the appellant is at least questionable, based on the following extract from JW’s police interview, in which she was asked about the version of events given in her second narrative:[40]
Pearson: And then you said ‘this is basically rape’?
Complainant: Yep
Pearson: Yeah, and I guess, what did you mean by that?
Complainant: Like, he was holding me there against my will, but I said that, like, jokingly, like ‘this is basically rape’.
Pearson: Yep.
Complainant: And then he was like – ’cause I – he – so like when I said that, I can’t remember if he said anything after that or he like laughed, I’m pretty sure he laughed a little bit, um, but afterwards I feel like he had to validate himself ...
Therefore, notwithstanding the matters explained by me in [18] above (as to the potential for the reference to ‘rape’ in the second narrative to support the drawing of an inference beyond reasonable doubt that the appellant knew that the complainant was not consenting to any ongoing sexual touching), the context described by JW in the above extract is important in terms of her tone and the appellant’s response. There was ambiguity in her statement and in his reaction. On JW’s own description, she said the words jokingly and the appellant did not take her seriously: his response was to laugh. These matters are not determinant, one way or the other, but are factors to be considered by this Court when faced with the difficult task on appeal of independently assessing the evidence.
I referred to one instance of ambiguity in the previous paragraph. In fact there were other instances of ambiguity disclosed in the evidence of the complainant in cross examination; specifically, ambiguity in her communication to the appellant that his actions were unwelcome. The following passage is illustrative:[41]
Now, do you agree that after he was spooning you and ran his hand down your thigh you giggled and you said ‘no’, that you both went back to watching animé?---Yes for a bit, yes.
And you talked about him pretending to masturbate, do you remember that?---Yes.
And would you agree that that’s the kind of goofy thing that Alexander might want to do because he thought it was funny?--- Definitely. That’s why I said in my video statement that I thought it was an extension of his behaviour, which is why I didn’t click that what was happening wasn’t that full on. Because I thought it was just his normal behaviour.
And I think you said, I think you even said in your statement to police, like a kid would do?---Yep.
And at that point and you’ve – I suggest to you that it was a playful jokey situation at that time, do you agree with that?--- At that point, yes. I was slightly uncomfortable but it was like a joke between us.
But you never told him you were uncomfortable, did you? You didn’t say ‘I’m uncomfortable’?--- No I didn’t. No, I didn’t want to make him feel bad.
And after he was playing with the sheet, or making – pretending to masturbate, he then put his hands on you again, didn’t he?--- Yes. He did.
And he touched you in the breast?---Yes.
He touched you on your butt---Yes.
Now you have given some evidence about him very briefly touching the vagina area on top of your undies?--- Yes.
I’m just going to suggest to you that in fact, that was on top of your shorts. What do you say about that?--- It was on top of the underwear, not the shorts.
Are you sure about that?---I am 100 per cent.
You agree that whatever contact, was very fleeting---Yes.
Yes?---The contact on the vagina was fleeting.
Now, I’m going to suggest that at this point, so we’re – it’s after he’s spooned you and he – he has been touching you, you again were giggling and said, “No, Stop?”---I wasn’t really giggling that much. It was more of a – it was, like, “No. Stop”, like that, a slight – it wasn’t like “No. Stop.”
I’m suggesting to you that – that it was actually, not – not that – that you were – it was still in a playful tone of voice. What would you say about that?--- I didn’t mean for it to come across as playful. I – I – I get how my voice can be like that, but I didn’t really didn’t mean for it to be a playful tone. It didn’t sound playful to me. I didn’t want to be, like, “No. Stop”, and make him feel bad for being goofy.
Because what I’m suggesting is that regardless of your intention, that he – you were – it was a giggly playful “No. Stop”, rather than a “No. Stop”. What you say about that?---More so, yes.
Yes to what, more giggly, playful than “No. Stop”?---It was – it was both of – it was a combination of both.
I have marked in bold several of the “No. Stop” references in the above extract to indicate my understanding of when those words were used to denote a more forceful or stern tone, in contrast to when they were used in a tone described by defence counsel as “giggly” or “playful” or by JW as “slight”. In the final sentence of the extract, JW seemed to arrive at an intermediate position, which she described as “a combination of both”. Nonetheless, it is a fair conclusion that the complainant did not strongly assert herself, in order not to hurt the appellant’s feelings; in her words, she did not want to “make him feel bad for being goofy”. The imprecision in the complainant’s evidence demonstrates the potential difficulty experienced by the appellant in properly understanding JW’s communication to him. Once the ambiguity apparent from the complainant’s evidence is taken into account, the appellant’s evidence as to his state of mind may be seen as more likely; specifically his evidence that he stopped touching or holding JW when she (finally) said “Xander, no, stop” in a very stern tone, unlike what she had said previously in a playful manner or accompanied by giggles.[42] Her Honour found that that evidence was “not a plausible or believable explanation in light of what had occurred prior to this point”.[43] However, I say more about that finding in [42] below.
The context of the evening’s activities prior to the complainant and the appellant returning to the appellant’s home also cannot be overlooked. As mentioned in [11], the parties had been in a sexual relationship and had lived together. The complainant in cross examination agreed that, before they left the beach to return to the appellant’s home, he said to her, “I feel like if you come back to my place, I will try and make a move on you. Are you sure you don’t want me to drop you back home?”.[44] She agreed that she answered ‘no’, that is, that she did not want the appellant to drive her to her home. The complainant also agreed that the appellant repeated that question when they arrived at his home. I refer to these matters not in relation to whether the complainant consented to the alleged assault on her but rather in relation to the extent to which they had some bearing on the appellant’s state of mind a short while later, as to whether he intended to sexually assault JW without her consent.
The case against the appellant was reasonably strong, but was dependent on the judge accepting the evidence of the complainant beyond reasonable doubt in relation to all of the elements of the offence, with the necessary corollary that the judge had to disbelieve any contrary evidence of the appellant in relation to those elements, and not be of the view that the appellant’s evidence even might be true. If the judge did not accept the evidence of the appellant but nonetheless considered that it might be true, her Honour was obliged to acquit.[45]
In this appeal, the only real contest is in relation to the appellant’s state of mind: whether he intended to touch JW sexually without her consent. The dual conclusions reached by her Honour that (1) JW had said “this is basically rape”, during the incident, and that (2) the appellant heard those words and understood their meaning,[46] were very significant adverse credit findings. The prosecution case before the Local Court was an ‘oath on oath’ case, in which assessment of credit of the complainant and the appellant (defendant) was absolutely crucial. It may be acknowledged that the judge’s finding, that the statement “this is basically rape” was made during the incident (that is, while the assault was ongoing), was one of several factors in informing her Honour’s decision, and that the judge made other findings to support the ultimate conclusion that the appellant intended to sexually assault the complainant without her consent. However, on appeal it is impossible to ascertain the extent to which the dual conclusions affected the judge’s consideration of the whole of the evidence of both the complainant and the appellant and the extent to which those conclusions led to the making of other adverse credit findings against the appellant, leading to the guilty verdict. One specific example was her Honour’s rejection of the appellant’s evidence referred to in [39] as “not a plausible or believable explanation”, because of “what had occurred prior to this point”. In terms of what had occurred prior, the judge had found that JW said “this is basically rape” during the incident. It can thus be seen that the earlier finding affected and probably determined the later finding. The adverse credit findings were clearly interconnected.
Unsafe, unsatisfactory or unreasonable verdict
One of the grounds of appeal (Ground 12) was that the verdict was unreasonable or cannot be supported having regard to the evidence. Counsel for the appellant contends that all grounds of appeal the subject of the appellant’s written submissions dated 16 November 2021 “can be deployed as applicable to this particular ground of appeal”, leading to the conclusion that a reasonable doubt ought to have been entertained by the trial judge.
The legal principles regarding appeals on the ground of unsafe, unsatisfactory or unreasonable verdicts are well settled and have been restated by the Court of Criminal Appeal a number of times.[47]
It is unnecessary to repeat those principles here save to state that the test is whether the appeal court considers, upon the whole of the evidence, that it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty (which is to say whether the tribunal of fact must, as distinct from might have entertained a doubt), bearing in mind the advantages that the tribunal of fact had in having seen and heard the witnesses. In performing the appellate task, the appeal court must make its own independent assessment of the whole of the evidence and determine for itself whether, having regard to any advantages the tribunal of fact had, it holds a reasonable doubt about the guilt of the appellant.
The principles were recently confirmed by the High Court in Dansie v The Queen:[48]
…. undue attention to the factual findings on which the trial judge relied in returning a verdict of guilty can distract the Court of Criminal Appeal from the proper performance of the assessment required of it … when determining on an appeal against conviction whether the verdict ‘should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence’. That is because the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.
The High Court confirmed in Dansie that the question whether the appeal court thinks that, upon the whole of the evidence, it was open to the tribunal of fact to be satisfied of the accused’s guilt beyond reasonable doubt is one of fact which the appeal court must decide by making its own independent assessment of the evidence, making full allowance for the advantages enjoyed by the tribunal of fact in seeing and hearing the evidence.[49] That doubt is not capable of being resolved by the primary judge’s advantage in seeing and hearing the evidence.[50]
I am not persuaded that this appeal should be allowed on the unreasonable verdict ground.
However, I have concluded that there was a miscarriage of justice. I refer to the error in factual findings referred to in [25], the misattribution to the appellant of admissions not made by him, identified and discussed by me in [25], [26] and [31]; the failure to adequately assess the inconsistencies in the evidence of the complainant, referred to in [26] and [33]-[34], or provide adequate reasons in relation to that; and the erroneous approach to matters not having being put in cross examination, referred to at [30] and [32]-[33].
I do not consider that it can be said that “no substantial miscarriage of justice has actually occurred” within the meaning of s 177(2)(f) Local Court (Criminal Procedure) Act 1928.
Conclusion
I allow the appeal.
Pursuant to 177(2)(c) Local Court (Criminal Procedure) Act 1928, I quash the finding of guilt in respect of the alleged assault and the circumstance of aggravation.
This is not a case in which it is appropriate to enter a not guilty verdict. Therefore, pursuant to s 177(2)(d) Local Court (Criminal Procedure) Act 1928, I remit the case for rehearing before the Local Court.
There is one final matter which should be mentioned in the context of the rehearing. Ground 13 asserts an error of law on the part of the trial judge in admitting evidence of bad character, thereby causing a miscarriage of justice. The evidence of bad character referred to was a statement made by JW towards the end of her police interview in relation to a “rumour from a couple of years ago” that the appellant “had raped a chick”. This evidence was inadmissible and should not have been led. If objection had been taken, it would have been excluded pursuant to s 137 Evidence National Uniform Legislation Act 2011. However, no objection was taken by defence counsel. It appears that the evidence was simply overlooked by both prosecuting and defence counsel. It was not raised in the examination or cross examination of JW. Moreover, it was not mentioned in the judge’s very detailed Reasons. Indeed, her Honour found that the appellant was of prior good character. I have not allowed the appeal on the basis of ground 13, both because the trial judge was not asked to rule on the admission of the now impugned evidence and because the admission of the evidence had no apparent consequences or relevant effect. Nonetheless, the evidence and associated questioning of the complainant should not be led at any rehearing.
I will hear the parties on the issue of costs.
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[1] Contrary to s 188(1) & (2)(k) Criminal Code. The circumstance of aggravation specified in s 188(2)(k) is “If the person assaulted ... (k) is indecently assaulted”.
[2] Note that in the Final Written Reasons for Decision, multiple versions of this phrase are quoted. For example, “No Z Stop it” at pp. 9.1, 20.5 (a reference to the complainant’s evidence); “No Z Stop” at pp. 16.9, 17.4 and 21.3 (a reference to the appellant’s evidence) and “Z no stop” at pp. 16.6, 19.1 (also references to the appellant’s evidence).
[3] The reasons for decision were contained in a document containing 27 pages, without paragraph numbering, headed “Final Written Reasons For Decision”. An endorsement at the head of the document read “Emailed to the parties 9 June 2021 – Amended Version to be put on the Court File and on Prosecution and Defence File”. It is unclear whether any such ‘Amended Version’ was produced and filed. The appeal proceeded on the basis of the “Final Written Reasons For Decision” document. The parties made their submissions with reference to that document. In the body of this judgment and following footnotes, the document will be referred to as ‘Reasons’.
[4]Her Honour referred to the statement of Gray AJ in McMaster v The Queen (1994) 4 NTLR 92: “... the prosecution must prove that it was the intention of the defendant to assault the victim without his or her consent. This involves the proposition that the defendant knew that the victim was not consenting or knew that he or she may not be consenting and proceeded regardless.”
[5] Reasons, p 6.5.
[6] Repeated in substantially the same words under the heading ‘Discussion’ at Reasons, p 19.8.
[7] Repeated in substantially the same words at Reasons, p 20.8.
[8] Reasons, p 6.8.
[9] Reasons, pp. 7-8. Local Court transcript references and other footnotes in the Reasons have been omitted.
[10] The audio-visual recording of the complainant's police interview was exh P-1. The transcript was tendered and received as a separate exhibit, exh P-3.
[11] Exh P-3, p 4 – 5. The audiovisual recording of the complainant's police interview is exh P-1. The transcript was tendered and received as a separate exhibit, exh P-3.
[12] The reference to ‘episode’ was to an episode of animé.
[13]See the second last large paragraph extracted in [12], commencing, “JW said if she was using a bit of humour…”.
[14] Exh P-3, p 18.8 – 20.5.
[15] Later in her police interview (Exh P-3, p 26.5), after fully describing the ‘second narrative’, the complainant confirmed in response to a ‘reminder’ question from the interviewing police officer that the appellant said “something along the lines of ‘wish I finished somewhere else’”.
[16] This was confirmed at Exh P-3, p 30.5: “... he just (inaudible) and then kept going”.
[17]As the judge noted in the course of the prosecutor's submissions at transcript p 108.7: “... the defendant, on acknowledging that he heard the words, but he said ... They weren’t during the alleged incident, but after. But if they were said during the alleged incident, and he has heard them during the incident, it would find it very difficult to say well, you know, ‘I didn't know she was not consenting’.”
[18] Transcript 24/11/2020, p 75.9 – 76.2. See also p 98.2.
[19] By implication, the appellant did not accept that the full conversation alleged by the complainant had taken place, that is, the conversation in which he had allegedly said that he was “not as fucked up as a rapist”, or words to that effect. His evidence was, “I don’t believe I said anything back to that”. Transcript p 76.2; 98.2.
[20] Transcript 24/11/2020, p 98.5.
[21] Reasons, p 22.6. The italics replicate the text of the Reasons.
[22] Reasons, p 22.7. The other matters were that JW asked the appellant if he wanted her to leave, and that she got up to leave but he pulled her back down.
[23] Her Honour also shortly afterwards used the words “This is practically rape”. The evidence source of the word ‘practically’ is unclear, although the expression probably means the same as “This is basically rape”.
[24] Reasons, p 24.5. The italics replicate the text of the Reasons.
[25] Reasons, p 25.1. The italics replicate the text of the Reasons.
[26] Transcript, p 107.9-108.
[27] Her Honour has transposed JW's words from her first narrative, and has treated them as having been said in the circumstances described in the second narrative. It may be noted that her Honour used the word ‘practically’ instead of ‘basically’.
[28] Except for the submission, towards the end of the extract in [27], made in the absence of evidence, that the complainant may have made the rape statement twice.
[29] Consistent with the Murray direction which it appears her Honour gave herself at Reasons p 4.6. The direction, as given, required the Court to carefully examine the evidence of the complainant to determine whether it was reliable beyond reasonable doubt. The Northern Territory Court of Criminal Appeal recently considered a ground of appeal in relation to an asserted failure to give a Murray direction in Foster v The King [2023] NTCCA 5 at [56] et seq.
[30] Reasons, p 9.5.
[31] Transcript, p 60.4.
[32] Transcript, p 30.9
[33] Reasons, p 9.7.
[34] Hofer v The Queen [2021] HCA 36; 95 ALJR 937 at [30], per Kiefel CJ, Keane and Gleeson JJ.
[35] Ibid, at [31], referring to the decision of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 688.
[36] Ibid, at [33], referring to the decision of King CJ in R v Manunta (1989) 54 SASR 17.
[37] Reasons, p 22.7. See [23] above.
[38] Reasons, p 27, par 5.
[39] Reasons, p 22.7.
[40] Exhibit P-3, p 23/35.
[41] Transcript, p 33. The extract is taken from the point immediately after JW had agreed that, in a relationship, one party may be “up for it” (that is, engagement in sexual activity) and the other party is “not quite sure”. Bold emphasis has been added.
[42] Transcript, p 75.5. See also [3] and [8] above.
[43] Reasons, p 25.5.
[44] Transcript, p 30.9.
[45] That was the effect of the Liberato direction given by her Honour at Reasons, p 4.9. See De Silva v The Queen [2019] HCA 48; 268 CLR 57 at [12], per Kiefel CJ, Bell, Gageler and Gordon JJ.
[46] Reasons, p 24.5, discussed in [23] above.
[47]See, for example, FN v The Queen [2021] NTCCA 5 at [15]-[21].
[48] Dansie v The Queen [2022] HCA 25 at [7].
[49] M v The Queen (1994) 181 CLR 487 at 492.
[50] M v The Queen (1994) 181 CLR 487 at 494.
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