Piddington (a pseudonym) v The King

[2023] NSWDC 106

District Court

New South Wales

Medium Neutral Citation:

Piddington (a pseudonym) v R [2023] NSWDC 106

Hearing dates:

15 March 2023

Date of orders:

21 April 2023

Decision date:

21 April 2023

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [Orders: 1&2]

Catchwords:

CRIME — Sexual offences — Aggravated sexual assault — Victim

CRIME — Violent offences — Common assault

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)

Supreme Court Act 1970 (NSW)

Evidence Act 1995 (SW)

Cases Cited:

Charara v R [2006] NSWCCA 244

Dyason v Butterworth [2015] NSWCA 52

Lunney v DPP [2021] NSWCA 186

Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1

Fox v Percy [2003] HCA 22

R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82

Ewen v R [2015] NSWCCA 117

R v Edwards (1993) 178 CLR 193

Passmore v R [2023] NSWCCA 65

Jones v The Queen [1997] HCA 56; (1997) 191 CLR

RWC v R [2013] NSWCCA 58

Texts Cited:

NA

Category:

Principal judgment

Parties:

Rex (Crown)
Piddington (a pseudonym) (Appellant)

Representation:

Counsel:
Higgins (Appellant)

Solicitors:
Webb (Crown)
Marshall (Appellant)

File Number(s):

2020/00318391

Publication restriction:

Anonymised

JUDGMENT

Approach to section 18 appeal

Basis of appeal

The magistrate’s reasons

The charges

The facts

The facts of the charges

Sequence 3 (Penile / vaginal sexual assault)

Sequence 4 (digital penetration)

Sequence 5 (Digital penetration)

Sequence 8 (assault occasioning)

Sequence 6 (common assault)

Sequence 7 (common assault)

Sequence 2 (sexual assault penile / vaginal)

Magistrate’s consideration.

Directions

The magistrate’s determination of each sequence

Sequence 3 (sexual assault: penile / vaginal)

Sequence 4 (sexual assault: digital / vaginal)

Sequence 5 (sexual assault: digital / vaginal)

Sequence 8 (AOABH: stepping on foot)

Sequence 6: (hand squeezing)

Sequence 7 (common assault: slap to face)

Sequence 2 (sexual assault: penile / vaginal)

Parties’ submissions

Consideration

Determination of appeal

Sequence 6

Sequence 2

Orders

JUDGMENT

1. This is an appeal pursuant to section 18 of the Crimes (Appeal and Review) Act of a decision of the Children’s Court to convict the appellant (referred to herein as either the young person or the appellant) on one charge of sexual intercourse without consent and one charge of common assault. In respect of 5 other charges the appellant was acquitted. The reasoning behind those acquittals is relevant to the argument made on appeal and reference will be made to those matters accordingly.

Approach to section 18 appeal

2. The approach to take in respect to an appeal under section 18 has been the subject of numerous Court of Appeal and Court of Criminal Appeal decisions. The approach I take is based on cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 and is as follows:

1. An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) Crimes (Appeal and Review) Act 2001.

2. The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18]

3. The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24]

4. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

5. The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant’s guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44]. It was further stated that the obligation to conduct the review of the evidence is qualified and shaped by the matters put in issue on the appeal. As will be seen below the parties here have clearly articulated a specific issue concerning the manner in which the learned Magistrate applied adverse credit findings as to the credit of the complainant in respect of each of the charges, and in particular, in respect of the two charges on which the appellant was found guilty.

3. The approach may also be described in the way stated by Justice Gageler in Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1 as the “correctness standard” which was his Honour’s way of describing the standard being spoken of in Fox v Percy. In Fox v Percy at [22]-[23] in reference to the rehearing referred to in s75A of the Supreme Court Act it was said (underlining added):

The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.

The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance"[29]. On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record[30]. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share[31]. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole[32].

Basis of appeal

4. In the appellant’s written submissions (AWS) at [2] the sole ground of appeal is said to be that the magistrate did not adequately direct himself on the relevance of his doubts about the complainant’s credibility on some sequences of which the appellant was found not guilty, to those sequences of which he was found guilty.

5. In oral submissions that position was repeated and expanded upon. It was submitted that the principal issue was whether the directions were sufficient concerning the complainant’s credibility. This submission was that the magistrate had failed to deal with the significance of the findings he had made that the complainant had lied. The submission was that the complainant had lied to both police and the court. Further having made adverse credit findings against the complainant it is argued the magistrate minimised the significance of that finding, and specifically when considering how those findings impact on the consideration of sequences 2 and 6.

6. The oral submissions of the appellant then set out ways in which the findings against her credit have not adequately been taken into account with the submission being that had they properly been taken into account the result would have been different. The argument referred to the asserted fear of the complainant of her father, the asserted inconsistency as to whether she was awake at the time of sequence 2, and the magistrate’s acceptance of the complainant’s rejection that sequence 6 was simply horseplay or rough play.

7. The Crown argues that the verdicts of guilty are a result of there being independent evidence to support those sequences. It is argued that in line with a Markuleski direction (R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82), whilst issues concerning the complainant’s credit may result in reasonable doubt on one or more sequences, the complainant may be accepted in respect of another sequence or other sequences where there is a logical reason to do so.

8. The resolution of this case requires a consideration of the magistrate’s reasoning and also of the evidence in order to determine on an assessment of the evidence before the magistrate on this rehearing, whether or not the correct result has been arrived at. In doing so of course the advantage of seeing the witnesses give the evidence enjoyed by the magistrate needs to be observed.

9. The parties’ submissions made repeated reference to the lengthy judgment of the magistrate. This was understandably and conveniently so for the magistrate in his reasons set out at length the facts of the case. For that reason, most of what follows is taken from those reasons, but with references to the evidence directly from the transcript, the exhibited text messages, and video evidence being made where appropriate.

The magistrate’s reasons

The charges

10. The magistrate began by setting out the allegations. There were 7 charges. Four of sexual intercourse without consent, with 2 of them alleging digital penetration of the complainant’s vagina and 2 alleging penile / vaginal sexual intercourse. There were 2 charges of common assault and 1 charge of assault occasioning actual bodily harm. All the offending is alleged to have occurred in 2020 when the appellant was in year 10 and the complainant in year 9, and both attending the same school. The complainant was 14 to 15 at the time of the alleged offending having been born on 9 May 2005 and the appellant was 15 at all times having been born on 19 November 2004.

11. On 7 November 2020 the young person had been at the home of the complainant. That night the complainant alleged that the young person had raped her which is the allegation represented by sequence 2 and about which a guilty verdict was entered. (The terminology used by the magistrate was “rape”, being the term used by the complainant. This is not the terminology of the charges and is adopted only because it was adopted in the Court below). The complainant gave a recorded audio (not video) interview that night to police, and that was played at the hearing. Later that night the young person was arrested and charged with two sequences of sexual intercourse without consent although sequence 1 did not proceed to hearing.

12. The relationship of the complainant and appellant ended on 7 November 2020, though they did still communicate. On 18 November 2020 there was a video interview given by the complainant to police. In that interview the complainant said that what occurred had only happened once. That is, as at 18 November 2020 the complainant in her interview with police alleged the appellant had only once sexually assaulted her.

13. The matter was before the court on 12 March 2021 and listed for hearing on 28 July 2021. On 24 July 2021 there was a third interview with police by the complainant also played at the hearing along with the two earlier interviews. It was that third interview in which complaints were made that gave rise to the other 6 sequences being sequences 3 through to 8. This led to the vacation of the July 2021 hearing and the matter was ultimately heard in May 2022.

14. In addition to the evidence of the complainant, the Crown called her parents and three witnesses who were students at the school attended by the appellant and the complainant and also an adult worker from the Saraton theatre, a place where both the young person and the complainant worked.

15. The magistrate noted that the prosecution relied solely on the complainant’s evidence in respect of sequences 3, 4, 5 and 8 which are 3 sequences of sexual intercourse without consent and 1 sequence of assault occasioning actual bodily harm. Other evidence in addition to that of the complainant was relied on in respect of sequences 2, 6 and 7.

16. There was a defence case and the young person’s mother gave evidence.

The facts

17. The complainant and the young person in 2020 were in a relationship which had commenced according to the complainant on about 29 January 2020. It ended on the night of the first complaint namely 7 November 2020, when it is alleged sequence 2 occurred. They visited each other at their homes and there were rules in place that if they were in their respective bedrooms together, they would leave the door open. The complainant said this rule was not always observed. There was no door on the complainant’s bedroom from at least October 2020; T38.01 of 11.5.22.

18. The complainant said she did not attend school between March to May 2020 due to Covid and her evidence that the young person also stayed home in that period was not challenged.

19. The young person and complainant communicated by text messaging and social media and some of these communications became exhibits.

20. The magistrate talks of the young person and complainant engaging in physical intimacy and her concession that her father would be angry if he found out she had been having consensual sex with the young person. In other words, the young person and complainant were engaged in a sexual relationship and the complainant accepted her father would be angry if he found out and also she said that he would be furious if he found out she had been raped. The evidence was of the complainant conceding there was one occasion of consensual penile / vaginal sex in February 2020 at her home in her bedroom. Sequence 3 is said to be the second occasion of sexual intercourse, and the first occasion of rape; T47.02, 11.5.22.

21. The magistrate refers to numerous text messages which clearly make out the sexualised nature of the relationship.

22. On the night of 7 November after the alleged events giving rise to sequence 2 there was evidence of a police officer of the complainant saying to her mother “Mum I’m so sorry. We have slept together before but nothing like this”.

23. When cross examined as to this conversation the complainant said she could not recall it and that if she did so the part referring to “nothing like this” would be a lie. The magistrate found the complainant did say what the officer said and went on to find the complainant told a lie to her mother in that statement (1).

24. The complainant’s mother gave evidence of the complainant telling her “she said that she trusted him. She never thought he would do something like this”. Again, the complainant said she could not recall that conversation but that if she did say those words then it was a lie and the magistrate accepted they were said and found a second lie (2). The significance of this needs to be appreciated from the point of view that this is being said on 7 November 2020 which is the occasion of the last alleged occasion of sexual intercourse without consent. In other words, the complainant told her mother at a time when there had been (on her later evidence) at least three earlier occasions of rape that became the subject of charges, and perhaps as many as 70 rapes that were not charged, that she never thought that he would rape her. The magistrate found this assertion of this being the only time it occurred as being a lie. That in turn needs to be understood in the context of the later allegations of the complainant of as many as 70 earlier occasions of rape. The 7 November statement to her mother is a lie in the sense that the complainant herself says she lied. Yet other parts of the magistrate’s reasons clearly suggest he did not accept that there were earlier occasions of rape; this conclusion is supported by the not guilty verdicts on the 3 other sexual assault charges, and his reasoning relating to a lack of any assertive conduct by her by text or otherwise when these other sexual assaults are alleged to be occurring.

25. On 18 November the complainant told a police officer that a sexual assault had only happened on one occasion namely 7 November 2020 (the transcript at T11.28 has an obvious typo). In cross examination the complainant conceded that was a deliberate lie to the police officer. This is a further example of a lie, which on this occasion the complainant sought to explain away by not wanting to get the complainant into further trouble (3).

26. At [33] at T13.49 of the judgment the magistrate records the concession of the complainant that she withheld information about the 70 earlier assaults she alleges because she thought she would not be believed.

27. In the 24 July 2021 interview and in court the complainant alleged other sexual assaults. She alleged these happened at her home, the young person’s home, at work (the theatre presumably) and in public. She said these occurred about 30 to 40 times at her home and “the same, maybe more. I mean less, sorry, at the young person’s home”. It is from these figures that the number of 70 seems to have emerged, but it could be more as 70 could account for the alleged occasions at either party’s home, leaving the alleged sexual assaults at work and in public places. If the start date is late January, or 1 February, and the end date is 7 November, that is approximately 9 months, so there are about 8 sexual assaults per month, so about twice per week. When allowance is made for the second occasion of sex being in March and for the inferred impact of lockdown, with no school from March to May, the time available for these 70 alleged sexual assaults is arguably 7 months. The majority of the alleged assaults were said to be penile vaginal intercourse. The complainant also alleged the young person would on some of these occasions punch, slap and a few times, strangle her. She also gave evidence of him squeezing her knuckles (sequence 6) which hurt, and she said was done to shut her up. There was no medical evidence in the case, nor any evidence of any injury arising from the alleged sexual assaults, nor any attendance at a doctor other than to hospital on 7 November.

28. The above attempted calculations of frequency are not necessary in one respect, for the complainant says in the 24 July interview that initially (the first months) the “raping” occurred on a Sunday but then it became daily. In that interview the complainant says it ended up being every day at her place. If this evidence is interpreted to mean perhaps each day from school recommencing in May, that is approximately 180 days till 7 November, or about 150 if the count starts in June, and even allowing for school holidays (as the allegation seems to be that it occurs before walking to school together), the number is 120, and that just at her place, so to be added to that are the occasions in his place, at work, and in public places, which on her own evidence roughly equates to the times at her place, so it could be as much as 240. If weekends are taken out the total number is still approximately 180.

The facts of the charges

Sequence 3   (Penile / vaginal sexual assault)

29. The magistrate then addressed each of the charges, beginning with sequence 3. The prosecution case, and the charge, is that this occurred in March 2020, following an argument because the complainant said she wanted to break up. The complainant said the young person asked her if that meant she would not have sex with him anymore, and she said “yeah, it means I don’t want to”. This suggests a sexual relationship of greater magnitude at this time than the complainant’s evidence suggests (4).

30. The magistrate found the complainant was not consistent as to when this first alleged assault occurred; she said it was in March on a school day, yet other evidence suggested she did not attend school in March, then in cross examination she said she could not say when it was (5). She was also inconsistent as to where this alleged sexual assault occurred and said in court she had made an error as to location (6).

31. Her evidence as to the assault was of being in the young person’s bedroom with the door closed and his mother in the house. She said he grabbed her, flipped her onto her stomach on the bed, pinned her down and pulled down her shorts, with her underwear remaining on. Still pinning her down, he used his right hand to lower his pants, then moved her underwear to the side and forced his penis into her vagina. He stopped when he heard his mother call out. The complainant pulled up her shorts and they then walked to school together.

29. She said she told her friend Ms LW about this at school that day, though also said she did not tell her exactly what happened. The evidence of Ms LW was that about the start of 2021, so nearly a year later, and months after the relationship had ended, the complainant said to her that the appellant “raped her, but she didn’t go into detail”.

30. In connection with this complaint the complainant said she did not realise it was rape but in cross examination said she was not sure what she meant by this answer (7).

Sequence 4 (digital penetration)

34. The magistrate then deals with sequence 4, alleged to have occurred near the Clarence River in Grafton after working at the theatre. The complainant was wearing bike shorts and underwear. The young person is said to have touched her leg and then pushed her to the chest and pinned her down and with his other hand, put his fingers in her vagina for a few minutes, stopping when she told him of a car nearby. They never spoke of this incident and there was no complaint till 24 July 2021. The magistrate reasoned that as the theatre was closed from 22 March to July, that it must be alleged to be before 22 March.

Sequence 5   (Digital penetration)

35. Sequence 5 allegedly occurred a few months after sequence 4, at the theatre, at night, during the last movie session. Ms B, a manager of the theatre said she had no memory of the complainant working a closing shift, and said that was not for junior staff, like the complainant. The complainant said she was cleaning the male toilet; Ms B said junior female staff do not clean the male toilets at night. The complainant said the young person came in, took the mop from her, pushed her to the stomach into a cubicle and locked the door. He pushed her so that her back was against the door, pressing her there, and put his hand up her dress, moved her underwear aside and inserted his fingers into her vagina, stopping when Ms B called his name. Ms Bl does not recall this. The complainant said she and the young person never discussed it.

Sequence 8 (assault occasioning)

36. Sequence 8 is a charge of assault occasioning actual bodily harm. The allegation was that the young person would put his foot on her foot and twist, saying he would keep doing it till she stopped cutting her feet, as she had a history of self-harm. It occurred at the theatre and the complainant was wearing Converse sneakers, and she said he stood on her foot and twisted, ripping open her self-inflicted cuts. She denied this was a step on a toe, or that it was teenage mucking around.

Sequence 6 (common assault)

37. Sequence 6 is a charge of common assault. The magistrate found it had support from evidence other than from the complainant, as he found in sequence 2. This is the allegation of the young person interlocking fingers with the complainant between the knuckles and squeezing hard. This is alleged to have occurred when walking with two others, Ms LW, and her friend R. The incident was captured on video. The video records the complainant saying “what are you doing” and then in the magistrate’s view, pulling her hand away from the young person, though it is conceded by the Crown that the hands of the complainant and appellant never separated. It is plain enough that the complainant reacts to her hand being squeezed by moving her hand and arm in a backwards motion. She then laughs and carries on walking hand in hand with the alleged assailant. Ms LW said the young person squeezed the complainant’s hand really hard, which she noticed as the complainant yelled as if in pain.

Sequence 7 (common assault)

38. Sequence 7 is a charge of common assault. This allegedly occurred at school, with others present. The complainant told police she said something, the young person then slapped her on the face and glared at her. She denied it was a play fight, or a push and shove in jest. Ms VP, in year 9 at the time, said the parties were not nice to each other but said it was all play. Contrary to the complainant the witness said it occurred walking to school, was a hit with an open hand with force, and that prior to the slap the parties had been play fighting. The witness agreed it was an example of the young person taking things too far. Ms VP’s evidence at T16 of 13.5.22 included that the complainant and appellant were “kind of mean to each other”; that (although it transpired not to be the occasion of this alleged assault) prior to her seeing the appellant slap the complainant on the face, the complainant and appellant “were play fighting”. Ms VP described that as “it was joking, like pushing and I don’t know, maybe a little nudge but nothing too much”. She also described it as “it was all play but I just didn’t think it was very nice”. In cross examination Ms VP agreed that often on the walk to school the complainant and appellant “would be play fighting”.

Sequence 2 (sexual assault penile / vaginal)

39. This is the charge arising from 7 November 2020. The evidence came from the complainant and text communication. There was also complaint evidence and evidence of alleged admissions by the appellant. The communications between the parties before the alleged incident showed the relationship to be “fine” in the words of the complainant, though that seems understated based on the evidence of declarations of love set out at T25. The alleged incident occurred after dinner, with the complainant wearing football shorts and underwear. The parties were in the complainant’s bedroom; there was no door due to renovations. The parents were in the lounge or their bedroom. The complainant’s brother was in his room. The distance from the complainant’s bedroom to the lounge was said to be 3 to 4 metres according to the complainant, though she was not sure. The parties lay on the complainant’s bed and watched a movie / series on her iPad and talked. Based on the complainant’s evidence, and on evidence of others whom she had told, what occurred was followed by a text from the complainant to the young person, saying “I was fucking sleeping”, and then “and I woke up to you dragging me around”. She texts her friend Ms BP a message soon after saying that she woke up to the young person on top of her and she could not breathe. She told a police officer on 7 November “[the appellant] and I were in my room watching a movie, when I fell asleep, and then I woke up with him on top of me, and he was inside me. I was half awake and pretended to be asleep because I didn’t know what to do”.

40. In her recorded statements of 7 November and 18 November the complainant gave a consistent version of watching a movie, falling asleep, and waking with the young person on top of her, but without mentioning pretending to be asleep or being half awake at the time of the alleged assault; she did say in the 7 November interview that she did not answer the appellant when he was about to leave, and in the 18 November interview said she pretended to be asleep at that same time. She also said she heard the young person moving around and fidgeting with his wallet before he forced his penis into her vagina. That suggests she was awake before penetration, a point of difference to other versions.

41. The complainant also alleged the young person placed his hands or hand around her neck and whispered to her she would be ok. The young person moved her so she went from being on her stomach to being on her side with intercourse continuing, and the young person then pushing the complainant on to her stomach, whilst still penetrating her. The young person said nothing and stopped after a while. The young person got up and the complainant heard her father call out for the young person as it was time to go home.

42. The magistrate recognised the inconsistency as to the complainant’s consciousness, and at T29 refers to evidence of the complainant where she says she heard the young person fidgeting, fell asleep and then became fully awake when the young person was forcing his penis into her vagina.

43. Shortly before 10pm the young person was driven home by the complainant’s father. In the car the appellant said to the father “Don’t worry about waking your daughter up, she’s asleep”. Shortly after 10pm there were text messages between the parties, which followed a number of calls from the young person the complainant did not answer. The texts included, as set out at T30/31:

91B. The complainant and the young person then texted via social media. The complainant responded to the young person at 22:03:32 on 7 November with a message, "Go away". At 22:03:37 the young person

25   replies, "Okay, I'm sorry". At 22:03:40, the complainant responds, "I never want to see you again". At 22:03:47, the complainant (as said) texts back a reply, "I'm sorry". At 22:03:49, the complainant writes back, "We are done". At 22:03:51, the young person responds with the words, "No". At 22:03:54, the complainant responds, "Yes". At 22:04, the young person writes, "I was so

30   stupid". At 22:04:06, the complainant messages, "We are over".

At 22:04:16, the complainant also messages, "There is nothing you can do". At 22:04:24, the young person responds, "Okay". At 22:04:26, the complainant messages these words: "You just raped me". At 22:04:40, the

35   complainant also messages, "I don't think you understand what you just did". At 22:04:42, the young person replies, "OMG". He also responds at 22:04:50 with the message, "I just realised". At 22:04:52, the complainant

responds, "I was fucking sleeping". At 22:04:54, the young person messages, "I'm so sorry". At 22:05:02, the complainant writes, "And I wake up to you

40   dragging me around". The young person then messages the following reply to the complainant, on the evening of 7 November, between 22:05:11 and 22:05:34: "I can't explain. I'm sorry. Don't forget me. Goodnight. I'm sorry".

92.   After this communication, the complainant sent the young person a

45   Snapchat message and photo. The message read, "Why would you do this to me? I thought you loved me". (See third photo of exhibit 5). While still in the bathroom, the complainant sent the young person a Snapchat photo with no message. (See exhibit 12). The photo depicts, what appears to be, tears running down the complainant's face.

44. At T29 I note the complainant complained of emotional, not physical pain.

45. The complainant then calls and speaks with her friend B in terms consistent with the complaint.

46. The appellant then returns to the complainant’s house; goes to her room and is told to get out and does so; goes to the mother’s room and says sorry and that he forgot something or needs to do something. He then speaks to the complainant’s father and says:

"I've done something really bad, [father]. I've fucked up. I've really fucked up. I've really fucked up." Mr [father] evidence was the young person did not want to tell him what was wrong. Mr [father] evidence was that the young person was extremely nervous and pacing and circling and very heightened. He stated the young person was definitely not his normal self. (See p 190 of the transcript of 12 May).

47. The father then checks on the complainant who says she is fine.

48. The magistrate records at T33 that the complainant’s mother then asks the young person what is going on and he says that he has “hurt her. I’ve done something really bad”. When asked if he has done something with his fingers he says yes; when asked if he had sex with the complainant he says yes. The young person kept saying “I've really hurt her. I’ve done something really bad” and was indicating to his private part with his hand. In her police interview the mother said the young person said he had touched the complainant. She told him to leave and not come back. The young person kept saying “I’m sorry”.

49. The mother then speaks with the complainant as she came out of the bathroom; the complainant fell to the floor and said, “I can’t do this anymore” and according to the mother in court, said of the young person “he raped me”. The complainant’s mother conceded that the words “he raped me” were not in her police statement made on 7 November, but nevertheless were adamant they were said.

50. The complainant said to her mother that she woke with the young person inside her.

51. The complainant then goes outside and sees the young person. The young person runs away. She pursues him. So too does her father and her brother. They all catch up with the young person. The father is angry. The young person is crying and confused. The father is restrained by the complainant to the point that his shirt is ripped. The young person runs back to the complainant’s house, where the mother lets him in, fearful of what the husband may do and locks the front door. The young person was saying “help me” and “I’m sorry”. The mother then shows the young person the back door and he leaves over the back fence. The father tries to enter the house, breaking the door handle in the process, and later admitting he was furious.

52. Police arrive. The young person’s mother is contacted and she arrives, to be told by the complainant that the young person was on top of the complainant when she woke up. She said the complainant did not appear distressed, angry or sad.

53. About 2 weeks later the complainant confronted the young person in the school yard, trying to talk to him. She said in evidence she was still in love with him, and denied it was inconsistent with being raped some 70 times.

Magistrate’s consideration.

54. Having reviewed and summarised the evidence as above, the magistrate assessed the complainant’s credibility. He considered her forthright and that she provided a reasonable amount of detail. She made concessions, including as to the lies referred to above, and that her father did not approve of her having an intimate relationship. She also conceded that the young person had a tendency to apologise a lot to her, when he thought he had done something wrong, and when the complainant considered he had not done anything wrong. Further she conceded she could go from being happy to angry.

55. At [114] the magistrate made general observations of the complainant as a witness. He found her intelligent, forthright, and assertive. The magistrate took into account the willingness of the complainant to admit that she told lies, as being a positive factor in assessing her credibility. He then accepts at [115] the reasons for the lies, in short, to not get the young person in trouble.

56. That the evidence shows the complainant to be a person who admits to lying when it suits her does not appear to be a matter to which much, if any, weight has been given at this point in the reasons.

57. Next, he considered the delay in complaint for the allegations other than sequence 2. The explanation of delay he found to be puzzling and difficult to understand so far as it was due to her concern of being accused of lying. The magistrate found the complainant did not explain adequately why she waited until July to make the further complaints (8). He then said at T39.44 that he would take the delay, the lies and “other matters” into account in assessing credibility on each offence. “Other matters” appears to be a reference to her deliberately withholding evidence from police, (9) and fear of being accused of being a liar referred to at [116], the previous paragraph.

58. Next, the magistrate expressed concern about her lack of complaint to the young person, other than in respect of sequences 2 and 6. The magistrate sets out examples of assertiveness and forthrightness of the complainant, and concludes:

117C. The significance of this evidence, in my view, is that if the complainant was a victim of regular acts of charged or uncharged acts of sexual assault, or serious physical assault by the young person, it would be reasonable to assume she would have complained to him about it. Given her assertive character, I would have expected the complaint about such behaviour, to be reflected in their social communication. Aside from sequence 2, there is no complaint by the complainant to the young person, in their social media communication, that has been tendered at the hearing. There is no complaint to the young person about sexual or serious physical assault, in the text messages tendered in exhibit 10, and exhibit 10 has social media communication between the complainant and the young person, for the period 24 February to 27 October 2020.

117D. I found the absence of the complainant (sic) by the complainant in those text messages in exhibit 10, to be very troubling. She never gave an explanation as to why there was no complaint to the young person, in those text messages. These are significant matters to be considered, in assessing her credibility as a witness, on each offence.

59. Although not expressly stated, what is said at [117C] implicitly says that if the complainant was subject to the other 70 alleged assaults, she would complain to the young person. The fact is she did not. At the very least, the inference must be that the magistrate was not satisfied that the uncharged sexual assaults occurred, a conclusion supported by the not guilty results in the charged matters of sexual assault, apart of course from sequence 2 (10).

60. In those circumstances, it is hardly helpful to the assessment of the complainant’s credit that she was frank in conceding that she lied on 7 November, when it would appear the magistrate has not accepted the events being lied about occurred. Yet whilst the magistrate is at this part of his reasons plainly aware of the credit issue and says, in line with Markuleski that he considers them on each offence, he appears to take this concession into account favourably to the complainant’s credit.

61. The magistrate then refers to other arguments put for the appellant relevant to the complainant’s credibility. This includes that the evidence as to the charged and uncharged acts of rape were not credible, and that her failure to take steps to protect herself from ongoing rape when options were open to her, supports that view. Further her evidence of being scared of the young person is not supported, and indeed is seemingly contradicted, by the evidence, in particular her own very loving text messages to him.

62. The magistrate noted in this regard the recognised experience that not all people respond in the same way to sexual assault, and some remain with the perpetrator. Consistent with that was the complainant’s evidence of being scared of the young person, but as the texts set out at T41 make clear, the evidence was not consistent with fear. Notably at [120] the magistrate found the complainant’s explanation for not complaining “difficult to accept”; this would seem to be an adverse finding as to the evidence of the complainant given on oath (11). The magistrate then refers to further texts supporting the appellant’s submission, including at [122] and [124], texts concerning possible sexually transmitted disease and pregnancy (the magistrate mistakenly refers to them occurring on a date after 7 November, but the point remains valid) and both without rancour concerning having allegedly being raped.

63. The magistrate then observed at [124] in respect of texts sent on 16 October 2020:

The complainant conceded, in cross-examination, that that communication was regarding the possibility she might be pregnant. She agreed, in cross-examination, she could only be pregnant as a result of the young person raping her. She also agreed that she never raised the allegation of rape, in the social media communication with the young person, and she never satisfactorily explained in her evidence the reason for that. She was never able to adequately explain, what I regard, to be an inconsistency between her text messages in exhibit 10, and those of the 5 and 6 November in exhibit 7, that is, the inconsistency between what she is alleging happened to her, as a result of the young person's actions, and those particular texts. Further, the lack of an adequate explanation as a significant factor, in considering her credibility in relation to each of the charges. (11)

64. The magistrate is here identifying an inadequacy in the complainants evidence in addition to the earlier identified inadequacies, and says it is a matter to take into account in relation to each of the charges.

65. The magistrate then at [125] took into account the inadequacy of the complainant’s evidence that she did not appreciate the first alleged assault was rape. Just how he takes it into account is not there stated, but the complainant’s answer is disingenuous at best, and seems to be designed to avoid confronting the failure to complain earlier, or to explain it. The paragraph is cursed by double negatives but appears to be saying that the magistrate considered she knew what had occurred was violent and wrong, and her answer therefore less than frank (12).

Directions

66. The magistrate then addressed the directions he needed to give to himself. Whilst the AWS argue that the magistrate did not adequately direct himself, the point is not that the appropriate directions were not given, but as recounted at the beginning of these reasons, that in applying those directions, in particular the Markuleski direction, the magistrate has given inadequate, if any, weight to the various adverse credit findings that he made.

67. The form of the Markuleski direction was at [127(3)], as follows:

(3)   Each charge must be considered separately, or any reasonable doubt about the complainant's events on one charge, is to be considered in relation to the other charges. The Court may find the young person guilty on some charge and not guilty on others. If that is the case, there needs to be some logical reason for that outcome.

68. That might be contrasted with the bench book version of that direction:

Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.

If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant’s evidence, you would have to consider how that conclusion affected your consideration of the remaining counts.

69. The magistrate’s direction conveys the essence of the Markuleski direction, though as will be seen, the real issue here is the extent to which the magistrate has considered how the doubts as to the complainant’s reliability as to sequences 3, 4, 5, 7 and 8 affect his consideration of sequences 2 and 7.

70. At [127(5)] at T47 the magistrate gave himself a direction in respect of inconsistent versions in line with s293A of the Criminal Procedure Act.

71. In respect of sequences 3, 4, 5 and 8 the magistrate gave himself directions appropriate for when the prosecution relies solely on the evidence of the complainant, specifically that he would need to scrutinise the complainant’s evidence with great care, which has the appearance of a Murray direction. There was no debate about the appropriateness of such a direction in respect of sequences 3, 4 and 5 due to s294AA CPA, appropriately enough given the credit issues raised and the admitted lies, and I note the magistrate referred to Ewen [2015] NSWCCA 117. The last sentence of that par, at T47.35, is however perplexing, where the magistrate says “Further, I should prohibit myself from giving myself a warning as to the dangers of corroborating on the uncorroborated evidence of the complainant”. Just what that means is not clear; it seems possibly to say he should allow the complainant’s version to be corroborated by things said at other times by the complainant. If it is intended to convey that meaning, it approximates the very complaint the accused makes in this appeal. That said, the comment was only made in respect of sequences 3, 4 and 5 and not 2. It may simply be a typographical error, or oversight, with “corroborating” meant to be “relying”.

72. The same directions and comments were said to apply to sequence 7 should the magistrate conclude the complaint is not supported by the evidence of Ms VP.

73. The magistrate dismissed sequences 3, 4 and 5, but not 2. He has dealt with sequence 2 differently than sequences 3, 4 and 5 on the basis that he considered that sequence 2 was supported by evidence other than the complainant. The point of the appellant is that if the fact finder is unable to consider the complainant a witness of truth, in circumstances of an alleged offence occurring in the presence of only two people, then, the verdict should be not guilty, unless the quality of the other evidence is such as to justify a different result. An eyewitness, or a compelling admission are examples. Conduct of the complainant herself, even if distinguishable from her conduct on the other occasions, would likely be less compelling.

74. Further in relation to sequence 2 the magistrate gave the appropriate Edwards direction as to lies at T48, [127(7)], in respect of what the young person said to the complainant’s father in the car, which the Crown relied on as a lie showing consciousness of guilt. This would appear to be a reference to the words spoken to the father by the young person after he returned to the complainant’s house; see at [43] above.

75. In a similar vein the Crown relied on statements made by the young person in texts, exhibit 7, to the complainant and statements made to the complainants’ parents, and a similar direction was given as to admissions as was given as to accepting something is a lie.

76. The magistrate noted the submission for the appellant that the complainant had a motive to lie, namely the fear of her father finding out about her sexual relationship with the appellant. The magistrate noted there was no onus on the accused, and if this motive was not made out, it did not mean the complainant should be accepted.

77. There was an argument as to whether a warning under s165 of the Evidence Act was needed, in respect of the lies found to have been spoken by the complainant. The magistrate did not give such a warning, for the reason he did not see it as necessary as he was an experienced judicial officer, not a jury, and those lies told to police is evidence that he took into account in considering the complainant’s credibility. No specific point is taken by the young person in this regard, save to say that it is consistent with underplaying the significance of the lies told by the complainant.

The magistrate’s determination of each sequence

Sequence 3 (sexual assault: penile / vaginal)

78. This sequence was dismissed. This was because of the inconsistencies as to where and when it occurred, exacerbated by this being the first alleged occasion, making it in the magistrate’s view more likely to be remembered. Further he did not accept, or in his terms found it “difficult to accept” that the complainant did not appreciate it was rape, despite describing it as “demeaning, disrespectful and violent”. This finding is tantamount to a finding that the evidence given was not truthful, and certainly not frank. As the finding as to this charge, and also sequences 4 and 5, shows the magistrate considered the complainant’s evidence should not be accepted. In short, at least in respect of this charge, she was not to be believed.

79. The magistrate also based this finding on the complainant’s failure to adequately explain why she never complained to the young person about his behaviour, and indeed, to the contrary, spoke in loving terms to him as shown by the texts. The absence of complaint, and absence of explanation, raised doubt about her evidence on this charge.

80. Notably the consideration given to this sequence is limited to the evidence of this sequence, and not to what might be termed more broad reaching concerns as to the complainant’s evidence, such as the 70 alleged sexual assaults. In effect, this sequence was determined by looking at it almost in a vacuum to the other significant concerns the magistrate has identified. It suggests, that had the evidence specifically relating to sequence 3 not been inadequate, then the finding may have been otherwise. This is, however speculation, but the point remains that in determining this sequence the magistrate has not made meaningful reference to other matters the magistrate accepted were adverse to the complainant’s credit. I note this here because that is the same criticism made by the appellant in respect of sequences 2 and 6.

Sequence 4 (sexual assault: digital / vaginal)

81. As with sequence 3, this was dismissed, and, notably as with sequence 3, the magistrate found the complainant gave a reasonable amount of detail about the offence.

82. For the same reasons as for sequence 3, (at [131]-[133] of the judgment and referred to at [78]-[79] above), and, given the acceptance of the accuracy of the Saraton staff roster which meant the alleged event must have happened before 22 March, very early in the range stated on the charge, this sequence was dismissed. That is, concerning this charge, objective documents limited the possibility of it happening in much of the time frame asserted by the complainant, giving rise to reasonable doubt, and the magistrate was not prepared to rely solely on the evidence of the complainant.

83. Thus here, the magistrate has taken into account his earlier finding, but only in that here too there was an absence of complaint and inadequate explanation of the text messages. There is no express recognition of the fact of the earlier charge being dismissed, and the inadequacy of the complainant’s evidence, being taken into account in respect of sequence 4.

Sequence 5 (sexual assault: digital / vaginal)

84. This was dismissed for the reasons set out at [138]-[140]. The reasons were because the evidence of two staff of the theatre contradicting the complainant (where this alleged offence is said to have occurred in the male toilets) and the same documentary records referred to for sequence 4. Those records which were accepted by the magistrate, showed the parties never worked a closing shift together, further raising doubts as to the complainant’s credibility. The magistrate also accepted the evidence of Ms B that a junior staff would never clean the male toilets at night. The magistrate also relied on the absence of any complaint by the complainant to the young person, and the inconsistency between the loving messages and the alleged repeated rapes at the same time. Whilst the magistrate again refers to his reasons for dismissing sequences 3 and 4, he does that in terms of inconsistency with the texts and lack of complaint.

85. These sequences were dismissed for the reasons identified and including that the allegations of the complainant on oath were contradicted, in terms of sequences 4 and 5, by business records and independent witnesses. That is something that should be taken into account along with the other credit issues in considering each of the other charges.

Sequence 8 (AOABH: stepping on foot)

86. This was dismissed due to the credibility issues identified above, and with the magistrate specifically referring (as he did for sequence 5) to his judgment at pars 121, 122, 131 and 132, referred to above.

87. Like sequences 3, 4 and 5, this sequence 8 was founded solely on the evidence of the complainant.

Sequence 6: (hand squeezing)

88. This charge was said to be supported by video evidence. The appellant’s argument was that like sequence 8, it is horseplay. The complainant rejected this. The determination is based on a finding by the magistrate that the evidence of the complainant on this charge is credible. Notably he found her a forthright witness but had dismissed the 4 earlier charges, so query just how reliable this assessment of credibility is. The video evidence, which showed the incident, and also the complainant pulling her hand backwards but still together with the appellant’s hand and recorded the complainant saying to the young person “What are you doing”, which although not determinative, is supportive of the imagery.

89. The magistrate in finding this charge proven beyond a reasonable doubt found the complainant’s account credible, based on her rejection that it was playful, and that she demonstrated what occurred in court. The magistrate also had the video evidence.

Sequence 7 (common assault: slap to face)

90. The sequence was dismissed for the reason that the evidence of the complainant and the supposed eyewitness was inconsistent. The complainant was unclear as to when the incident occurred but did say it was the only time the young person hit her in public. She said it occurred at school; the witness said it happened on the way to school. The magistrate accepted that it may be the witness and complainant are talking of two different events. The evidence of the witness supported that there may have been other times when the young person hit the complainant, times when “he went too far”. This then left the prosecution with only the evidence of the complainant, which, as for sequences 3, 4, 5 and 8, was found to be unreliable. The magistrate again referred to the credibility issues stating at T 56.37 “given the serious credibility issues that I have detailed already, in relation to the complainant, at paras 121, 122, 131 and 132 and my findings in relation to the charges already dismissed I do have a reasonable doubt in this matter”.

91. Whilst this is in line with an application of a Markuleski direction being adhered to, the concern is that it is only applied when the magistrate dismisses matters particular to the particular sequence leaving him only with evidence of the complainant so that he then dismisses the charge. The true test of whether the Markuleski direction is being adhered to would be when there is material that is not so determinative of the charge being dismissed but is rather supportive of it to some extent and to then see how the adverse credit findings are taken into account.

Sequence 2 (sexual assault: penile / vaginal)

92. This finding is under challenge. The magistrate convicted the young person of this charge and gave five bases for that finding.

93. At the outset of his ultimate reasoning at [154] the magistrate expressly says, “taking into consideration the evidence in relation to this charge the general credibility issues and the charges that I have dismissed for the reasons I have indicated I say the following:” And he then proceeds to give five reasons.

94. The first reason was that the magistrate found the evidence of the complainant “in relation to this charge to be cogent and credible”. It assists to list why he formed this view, and in particular to note which matters have as their source the complainant herself, which will assist when reference is made to the young person’s argument on this appeal.

1. Her accounts of the incident were broadly consistent: the source here is the complainant.

2. Although he accepted the complainant’s account as to whether she was conscious or not at the time of the alleged assault beginning, she was “imprecise consistently”. Again, the complainant is the source. Further, the magistrate accepted a degree of imprecision in circumstances where the complainant was subject to a sudden, unexpected and violent act. That with respect tends to assume what needs to be proven; it is also consistent with a person lacking in credit.

3. He rejected the argument for the young person of the complainant not giving full details to police as to the conduct of her father after the event. The magistrate considered this peripheral. A further part of this argument is that the complainant had a motive to lie on 7 November, namely the fear of her father learning of consensual sexual activity. That fear may have become more appreciable had she told them of his reaction to the non-consensual activity. The magistrate rejected this argument on the basis that the complainant’s concern as to her father’s reaction was outweighed by the concern as to what the young person did to her. Again, there is not here some independent, non-complainant based evidence to find her now to be credible, and again, the magistrate’s reasoning relies on an acceptance of what needs to be proved.

4. The acceptance of the complainant’s evidence that lying about the assault made no sense as it was a case of him being upset either way, ignores the fact that no fault could rest with her on the non-consensual version. Putting that to one side, there is not any evidence other than the complainant yet identified to satisfy the caution required by Markuleski.

5. That the complainant’s behaviour after the offence supported her evidence in relation to the offence.

95. There is no consideration in this first reason of how the conclusion as to the unreliability of the complainant on the other sequences affects the consideration of sequence 2. This first reason relies entirely on evidence of the complainant. To be fair to the magistrate, in his following reasons matters beyond the complainant’s evidence are referred to, and the reasons should be read as a whole.

96. The second reason was that the behaviour of the complainant supported the credibility and cogency of the complainant’s evidence. The magistrate relied on three matters. Firstly, her immediate complaints to the young person and Ms BP. In particular of the text to the young person in exhibit 7, the magistrate said:

Her text message to the young person after the offence, in exhibit 7, provide, in my view, powerful and compelling evidence of her feelings of outrage, betrayal and hurt. At the risk of repetition, those messages include these words in exhibit 7 to the young person: "I never want to see you again. We are done. There is nothing you can do. You just raped me. I was fucking sleeping. I woke up to you dragging me around." Also in exhibit 5: "Why would you do this to me? I thought you loved me."

97. The magistrate found the only rational and reasonable inference to draw from this was that something seriously wrong happened to the complainant in her bedroom.

98. Secondly, the messages to Ms BP to similar effect, though not so particular.

99. Thirdly the magistrate found the complainant’s messages were not consistent with a sudden change of mood or random dissatisfaction with the young person. The magistrate held:

There is no reasonable inference that can be drawn, in my view, to explain the complainant's messages in exhibits 7 and 8, other than it was consistent with her being sexually assaulted, without her consent, as she complained of. Further, the messages are clearly, not in my view, consistent with sexual activity that she engaged in willingly and with her consent

100. As with the magistrate’s first reason, this second reason is founded entirely on evidence with the complainant as the source.

101. The third reason is that the complainant was assertive in respect of this complaint, unlike with charges 3, 4, 5, 7 and 8, and as a result of what happened, she ends the relationship. This again is evidence from the complainant.

102. The fourth reason has a number of aspects. The first mentioned is the immediate complaint to Ms BP, referred to in respect of the second reason. The second mentioned is what the complainant’s mother saw, which is evidence from a source other than the complainant. The mother saw the complainant collapse on leaving the bedroom.

103. The magistrate goes on to note other complaint evidence, to the mother and 2 police officers on 7 November, and a third officer on 18 November. Such evidence again has the complainant as its source. Such evidence is not to be used to substitute evidence of the complainant, albeit that it can be used to go to the truth of the fact in issue.

104. Apart from the mother seeing the complainant collapse, the basis of reason 4 has the complainant as the source.

105. The fifth reason is the behaviour of the young person, so a source other than the complainant. At [158] the magistrate states:

His text responses to the complainant, in exhibit 7, includes messages such as, "I was so stupid." In response to the complainant saying, "You just raped me. I don't think you understand what you just did", he replies, "OMG I just realised." In response to the complainant messaging, "I was fucking sleeping", the young person replies, "I am so sorry." In response to the complainant's message, "I work [sic] up to you dragging me around", the young person replies, "I can't explain. I'm sorry. Don't forgive me. Goodnight, I'm sorry."

In my view, the only reasonable and rational inference to draw from those text responses, is:

(i) The young person is acknowledging he has done something to the complainant.

(ii) He is apologising for what the complainant complains that he has done to her.

106. The magistrate then also relied on the evidence of the complainant’s parents after the alleged offence on 7 November. This included saying “I’ve done something really bad [father]. I’ve fucked up” to the father and “I’ve really hurt her” to the mother. The magistrate found that the appellant being nervous and anxious at that time, when the parents were unaware of any alleged incident, was because something seriously wrong had occurred and reflects a consciousness of guilt.

107. At [162] the magistrate accepts the submission for the young person that the matters just referred to do not expressly indicate the young person knew the complainant was not consenting. He then states, “in my view, the cogent and compelling evidence of the complainant allows only one conclusion to be drawn on that issue: that he must have known or was reckless as to the issue, that she was not consenting to the sexual intercourse, at that time”.

108. In other words, to the extent the evidence other than from the complainant does not support all the elements of the offence, the magistrate then relies on the evidence of the complainant. That is circular, and means, on the magistrate’s analysis, that his finding on sequence 2 rests on the evidence of the complainant, whose evidence on the earlier sequences was found to be inadequate. Nowhere in the consideration of sequence 2 is reference made to the reliability concerns raised earlier in determining what weight to give the complainant’s evidence in respect of sequence 2.

Parties’ submissions

109. Both parties provided helpful written submissions. At my request they then provided some further submissions which I will address below. I will deal firstly with the submissions for the appellant referring to the two sets of submissions as AWS and AWS2.

110. As already noted, the short point of the appellant described as the sole ground of appeal is that the magistrate did not adequately direct himself on the relevance of his doubts about the complainant’s credibility on some sequences of which the appellant was found not guilty to those sequences of which he was found guilty. As may already have become apparent the complaint in my view is not so much that there was a lack of direction but a lack of application of that direction. In AWS 2 the point was formulated as “how those inconsistencies and lies should be brought to bear in determining whether the facts alleged by sequences 2 and 6 were proved beyond reasonable doubt”. The further submissions were provided after the court had made reference to a recent decision of Passmore [2023] NSWCCA 65, a case concerning inconsistent evidence. I am grateful to the frank submissions of Mr Higgins which did not seek to adopt any reasoning from that case making the point in my view appropriately and fairly that the present case is not one of inconsistent evidence concerning sequences 2 and 6 but rather a case where other evidence beyond those charges contains both inconsistencies and lies, though in my view there are some inconsistencies within sequence 2 itself (as to the complainant’s state of consciousness, and whether the complainant, if she was woken up, woke to being raped, or being dragged around). The point raised is whether, in line with the Markuleski direction, the magistrate has properly taken the dismissal of the earlier charges due to credit issues, and the credit issues to the uncharged matters, into account. The argument would logically extend to a consideration of whether, if those matters have been taken into account, have they been given the appropriate weight.

111. Also following a request from the court, the parties provided an agreed list of transcript references from the judgment of lies told by the complainant or findings to that effect as well as other matters said to impact adversely on her credibility. There were 18 such matters, which are set out below in a table reducing them to 14 matters. The table then adds further matters.

112. In the AWS, as the above review of the magistrate’s reasons shows, the point is made that the other 5 sequences were all dismissed because there was no supporting evidence besides the complainant’s account. What was said to be corroborative of sequence 7 (the face slap) was in fact not proven to be the occasion in question. In sequences 4 and 5 documentary evidence of the theatre business contradicted the complainant, as did an independent witness. The evidence of the complainant was inadequate to satisfy the magistrate beyond reasonable doubt as to those sequences. On the facts of this case that must be because of the concern as to her credit.

113. It is significant that with sequences 4 and 5 that not only were there the concerns as to the complainant’s credit, but other evidence contradicted her.

114. Before considering what is in question in this appeal namely sequences 2 and 6, the scope of the lack of credit or extent of the complainant’s lack of credit must be highlighted. It is abundantly clear from the table set out at [126] below that she was not a person of credit. The appellant has understandably emphasised the estimation of 70 occasions of rape in the period 29 January 2020 through to 7 November 2020 asserted by the complainant. That somebody would continue to socialise with and be the girlfriend of a boy who within two months of going out with her is raping her regularly is unlikely. It is even more unlikely when the assertiveness of the complainant is taken into account. The allegations are also totally at odds with the communications between the parties as these repeated sexual assaults are said to be occurring. Numerous attempts are made in submissions to determine the frequency of the alleged raping, and I have addressed this at [28] above. The assertions being made by the complainant about sexual misconduct of the young person are simply implausible. Bear in mind also there was never, in connection with any sexual conduct, an occasion of seeing a doctor, (apart from fear of pregnancy or disease and going to hospital on 7 November), never an occasion of there being an injury, never an allegation of physical pain, nor ever an occasion of the complainant yelling out from their respective bedrooms in their family homes, and of course, there was no door on her bedroom from October 2020.

115. Ultimately the submission of the appellant was threefold. The first point was that the significance of the credibility issue was not measured or grappled with. What is being said there is that when the magistrate came to deal with the two charges which he considered did not rely solely on evidence of the complainant there was an undue focus on that other evidence without a proper recognition of the previous adverse findings. I accept that submission. Obviously, the magistrate was aware of the adverse findings he had made but the structure of his reasons suggest that he has not given it sufficient weight, something borne out by the minimalist reference to the credibility issues when determining sequences 2 and 6.

116. The second point is really the first point put in a different way but with good effect. The point made was that the magistrate’s approach minimised the impact of the credibility issues by the existence of other evidence. With respect the point just made above is what is said at paragraph 30 of the AWS where it was said “while the magistrate was entitled to rely (on) other aspects of the evidence it still fell for him to consider whether these aspects remove the doubt that might be caused by his concerns about the complainant’s credibility. That style of reasoning is lacking from his reasoning which suggests rather that the credibility problem was nullified by several features of the evidence”.

117. Thirdly it was said that the magistrate should have directed himself that having made a particularly troubling finding as to credibility the other evidence in sequences 2 and 6 needed to be assessed against the doubt that this finding naturally presented to the truth of the allegations.

118. For the Crown it was submitted that the appropriate Markuleski direction was given and that, consistent with that direction there was a logical reason for the different verdicts. That logical reason was said to be other evidence which was identified as being the complaint evidence to Ms BP, complaint evidence to the complainant’s mother and complaint evidence to the young person’s mother. With respect the difficulty with that argument is that the complaint evidence has as its source the person lacking in credit.

119. In respect of sequence 2 there was also what was said to be admissions. In terms of admissions however it is important to identify what is being allegedly admitted to and to determine the reliability of the alleged admission. In this case the young person made statements to the effect that he has done something wrong and also made statements that he used his fingers. That of course is not the offence alleged. Furthermore, doing something “wrong” or “fucking up” in circumstances of young people being engaged intimately could well be some other event other than a criminal one.

120. In respect of sequence 6 the other evidence is said to be the video. With respect to the magistrate, it is very obvious that whatever occurred on that video was not a criminal act when the facts of this case are considered. It was clear from the evidence of Ms VP that the complainant and young person were in the habit of rough play or horsing about. Despite the nature of the subject matter of this case it pays to remember that we are dealing with children on their way to school. The video need only be viewed to determine there is no assault when this background is taken into account. In more legalistic terms, the evidence of a custom of horsing about shows the touching to be lawful and implicitly consented to. The video which is about 10 seconds long shows the complainant after having had her hand squeezed smiling and then continuing to hold the hand of the appellant and walk along the street.

Consideration

121. I consider it inconceivable that the magistrate having written such a long judgment and canvassed at length the evidence and having made adverse credit findings on the 5 not guilty sequences was not aware of those adverse credit findings when dealing with the 2 guilty sequences. That said there does appear to be a certain compartmentalisation about the magistrate’s reasons. Whilst to be fair to him it should be assumed he was aware of the adverse credit findings he had made he does appear to have put them to one side when considering the two guilty sequences. In the review of his reasons set out above it can be seen that he identifies a series of matters that distinguish guilty sequences from the not guilty, for example the immediate complaint. That is a legitimate approach; that is in order to determine each of the individual charges it is appropriate to take into account the particular factual matters relating to each in determining whether the factfinder is satisfied beyond reasonable doubt of the matter in issue. Nevertheless, that is not the only criteria of the approach to take; not only is it relevant to take into account distinguishing features of the different sequences but as Markuleski requires the earlier lack of credit needs to be taken into account.

122. The significance of this should not be underplayed. Prior to Markuleski was the High Court decision of Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439. At p455 of Jones (cited in RWC v R [2013] NSWCCA 58) it was said:

Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.

As we have already said, nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory. (emphasis not in original)

123. Then in Markuleski the point of the direction was explained at [191]:

The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts.

124. With that guidance in mind, at [154A] of the magistrate’s reasons he relied in large part in deciding sequence 2 on the cogency of the evidence of the complainant “in relation to this charge”. The distinct lack of cogency of much of her other evidence is not here taken into account, and indeed would appear to have been put to one side. The magistrate does not meaningfully consider, in respect of this sequence, that he did not consider her a sufficiently reliable witness to make out sequences 3, 4, 5, 7 and 8. Nor does he take into account the various implicit if not express criticisms he has made of her evidence generally, and in particular concerning the allegations of the uncharged sexual assaults. And whilst it may be ambiguous as discussed above, there is no mention of her demeanour in her two video recorded interviews, which is mentioned at [127(5)] below.

125. The need to apply, or adequately apply, the Markuleski direction is all the more necessary where what is being considered as distinguishing features of the later charge being considered are based on evidence which stems from or has as its source, the complainant. Much of the distinguishing features relied on here had the complainant as their source. There was also in addition to that the evidence of the parents as to their observations of the complainant and also what was said to be admissions made by the appellant.

126. Numerous findings adverse to the complainant’s credit have been identified above (indicated in some cases by a number in parentheses). The parties were invited to agree to a list of such findings. Those matters are set out in items 1-14 below, with the reference being to the transcript of 21 September 2022. The balance of the items have been added, with references where appropriate to the paragraph they are referred to in these reasons.

No.	Tx / par	Matter	Comment
1	11.26-12.08	The lie to Det Buckland on 7.11.20 that this occurred only on 1 occasion	Says she lied as did not want OC to get into trouble. Note also lies to mother (the 3 lies)
2	16.10-33	Inconsistent as to when and where sequence 3 occurred
3	17.28-29	Says she told Ms LW re sequence 3 a few hours after it happened, but not exactly, and no evidence of complaint till 24.7.21; and Ms LW says she was told in 2021	Re sequence 3
4	17.40-46	Says she did not realise he was raping her
5	38.31-35	Finding of lies told by C	As noted above this was to her mother twice and Det Buckland
6	39.28-38	Deliberately withheld evidence, one reason given that feared she would not be believed	Mag found this explanation for delay puzzling and difficult to understand
7	39.47-48 and 41.1-6	No complaint to OC re his alleged behaviour; nothing in the texts	Mag found this a concern, along with no explanation for it
8	41.49-50	Evidence of her assertiveness to OC	At odds with her asserted submission to him less likely
9	42.29-31	Concession that messages inconsistent with allegations of rape, and alleged fear
10	44.8-13	Inconsistency bw texts and the alleged conduct occurring at same time
11	44.23-31	Contrary to her assertion, infers she would know the alleged conduct seriously wrong	In contrast to her at least for some period not thinking so, or not knowing
12	49.35-37	Significant deficiencies in C evidence	This re sequence 3
13	50.35-48	“Difficult to accept” she did not appreciate it was rape
14	58	Imprecise as to her state of consciousness; and this is re sequence 2	In ROI she does not refer to relapses to sleep
15	[29]	Suggestion of sexual relationship greater than C suggests
16	[31] cf ROI of 24.7.21	Similarity in the description of sequence 7 and sequence 3
17	[63]	Inconsistency between texts and the alleged “raping” prior to 7 Nov, and particularly of 16 Oct	Other references to this also, eg at [58]-[59] above
18	[12]	In police interview of 18.11.20 C says OC had only once sexually assaulted her
19	[28]	The sheer number of alleged sexual assaults, asserted to be about 70, but possibly 240	Implausible in all the facts of this case
20	C does not recall the first time sex occurred, nor whether that was an occasion of anal sex	Either event for a 14 (or 15) year old, be it a first occasion of sex with the appellant, or be it anal sex, on the facts of this case, is likely to be memorable
21	[33]	Could not explain her own answer in the interview about not realising it was rape	In line with item 11
22	[39]	In the text in ex 7 C says “and I wake up to you dragging me around”; cf telling police she woke up to him raping her
23	[84]	Contrary to C evidence, documents showed the C and appellant never worked a shift together at the theatre	Re seq 5; these documents also contradicted C re seq 4
24	[84]	The evidence of Ms B that C and the appellant never worked a shift together was preferred.	Re seq 5
25	The dismissal of sequences 3, 4, 5, 7 and 8

127. In addition to those matters, the following should also be noted:

1. On the issue of “admissions”, what the appellant “admitted” to was doing something with his fingers; see T34 of judgment; though he did also admit to having sex, and it was put to the complainant in cross examination that there was consensual penile vaginal sex on 7 November. The point being that what the appellant was concerned about with the mother was something to do with his fingers, and from what he said to the father, to having “fucked up”. In a room without a door, in the circumstances of this case, it is more likely to be consensual sex rather than rape, bearing in mind also on the evidence suggests a modestly sized house.

2. The texts including those set out at [43] above, are far from straightforward statements, and far from clear as to what they are referring to. How could the appellant “not understand” (as the complainant put it) what he just did, if what he did was sexually assault the complainant, and how could he (as he put it) “just realise” it subsequently? This peculiar wording is magnified if, as the complainant maintains, it is the 70th occasion of “rape”, but even without that, it is difficult to reconcile it with the allegation of sequence 2. The more likely situation is that this is not the 70th time of rape, something this exchange may support, and in that sense, whilst it is still odd, if anything, adds to the complainant’s credibility deficit.

1. The accepted tendency to overly apologise; he is apologising for “hurting her really bad”, yet there was no physical injury.

2. That the appellant never caused any “serious injury”, nor so far as the evidence goes, any injury arising from the sexual assaults. This factor on its own would be of little significance perhaps, but the complainant was evasive in making this concession at T14 on 12.5.22. At T14.15 when asked that question she answered “Not that I’m aware of”; this is plainly evasive, as she would surely know whether she had suffered serious injury. She is being less than forthright in this instance.

3. The magistrate found the complainant as a witness to be intelligent, forthright and assertive. I take that into account, and acknowledge the advantage of the magistrate in seeing her in cross examination. That advantage does not extend to her recorded evidence; on appeal the 3 recorded interviews were available, 2 of them also video recordings, and they have been listened to and viewed. I found the presentation of the complainant in the recorded interviews open to at least two interpretations. She presented as reluctant; eg, in the first interview initially she did not wish to say what the appellant was doing when she allegedly woke up on 7 November; and the same position was adopted at the beginning of the 18 November interview. Frequently in the 2 videoed interviews the officer needed to prompt the complainant, to the point of numerous leading questions being asked. That presentation was markedly different to what the magistrate observed in court and is not the subject of any comment by the magistrate. As already noted, it could be explained in at least 2 ways. One is the difficulty a victim of sexual assault may have in recounting the traumatic experience of the sexual assault; another is that the hesitation or reluctance is reflective of the falsity of the claims.

4. On 7 November 2020 the complainant said to her mother “Mum I’m so sorry. We have slept together before but nothing like this”. (In this regard, the mother’s statement to police did not include her saying the complainant when she came out of bathroom said the appellant raped the complainant, though in court the mother maintained she did) . This statement of the complainant was found to be a lie. But of course, it may be the complainant lied in court, not to her mother, and also lied to police when giving her third statement. The magistrate stopped short of saying this expressly, but the reasons plainly show a lack of acceptance by him of the 70 rapes alleged, and that when left with only her evidence on the 5 dismissed charges, was not satisfied beyond reasonable doubt. The same comments apply to the second lie to her mother on that night.

5. To expand on item 21 in the table, in respect of sequence 3, the complainant said she was not sure what she meant by saying she did not realise it was rape. For the complainant to not be aware what she means is a concern; worse, it suggests the answer in the first place was unreliable, and the answer in court insincere at best, and at worst seeking to avoid a concession that her evidence is not reliable.

Determination of appeal

128. With respect the appellants point has a very solid basis. The magistrate spoke of “general credibility issues”; in my view those “issues” amount to significant defects in the credibility of the complainant. That point is reached due to the inadequate evidence of the complainant, extending to that evidence being contradicted, with the result that 5 sequences were not made out. That position is made worse due to the allegations as to other misconduct which is simply implausible.

129. A feature of the magistrate’s reasons is the absence of any express finding as to whether the complainant was found to have lied beyond the finding of the 3 lies on the night of 7 November. The appellant has submitted that the complainant has otherwise lied to the court, and the Crown disputes this. Suffice to say, sensibly read the magistrate by his reasons does not accept the allegation of 70 “rapes”. I agree with that assessment, the allegation is implausible as discussed above. For the reasons canvassed above, my view is as stated at [114] above, that the complainant is a person significantly lacking in credit.

130. In these circumstances, when applying the Markuleski direction, there would need to be something of crystal-like clarity adverse to the appellant and not having the complainant as its source for the charge to be made out. The evidence available, other than from the complainant, is of the so-called admissions, which are not admissions that can be relied on as being clearly an admission of the allegations made for reasons discussed above. There is also the video in respect of sequence 6, which in my view does not establish the charge.

Sequence 6

131. The magistrate in his reasons as noted above said that it can be heard in the video the complainant saying to the appellant “what are you doing” and that she pulled her hand away from the young person. He treated this as an immediate complaint. He said her words and actions are not consistent with physical interaction that she consented to. The magistrate relied on the evidence of the complainant rejecting the proposition that the video depicted horseplay. He relied on the evidence of Ms LW that the complainant yelled as if she was in pain.

132. I have had the benefit of watching the video. The magistrate does not include in his observations of the video that when the complainant pulled her hand away from the appellant, she nevertheless at all times remained holding his hand. There was no concerted effort to shake free from him. The magistrate failed to make the observation that at the time the complainant said the words “what are you doing” she was laughing. The magistrate failed to make the observation that immediately after that happened the young person and the complainant continued in good spirits walking with their friends holding hands. Further it is not necessary to rely on Ms LW as a witness because the utterance of the complainant is able to be heard and seen on the video, including as the Crown points out, when she cries out “aw” and “ahh”.

133. The magistrate also makes no reference to the evidence of Ms VP, that the complainant and appellant when walking to school would often “be play fighting”.

134. At [146] the magistrate said that he had taken into account the credibility issues that he had already considered in relation to the charges he dismissed and the credibility issues generally and found her account credible on this specific charge. Whilst he has made that statement the magistrate does not explain how he has taken those issues into account nor has he taken into account the matters that he has failed to observe in his reasons on the video.

135. Accepting that the magistrate has taken the credibility issues into account, he has given them far too little weight. This is because with all due respect it is so patently obvious on the video that what is occurring is what was termed at the hearing “playful fighting” occurring between a 14-year-old (possibly 15) and a 15-year-old in the way I have set out as represented in the video. The touching, as concluded above was implicitly consented to and is not unlawful.

136. An opening submission of the appellant (see at [6] above) was that the acceptance of the complainant on this count was an example of failing to properly direct himself in accordance with the Markuleski direction. I accept that submission. Indeed, the fact that the complainant would maintain that what occurred on the video was an assault in my view damages her credibility even more.

137. I should note that the video was not viewed at the appeal hearing in court by me but was viewed in chambers. Having seen it my preliminary view was as just set out. I invited the parties to make further submissions about that and the Crown took up that opportunity in a way that is much appreciated. The Crown's argument was that the fact of no separation of the hand is immaterial and conceded a short laugh. The Crown pointed out that the complainant was saying words like “ow” and “ahh”. I have taken that into account and with respect it does not persuade me from the view I have expressed for the reasons stated. Furthermore, the Crown submission was based on the erroneous presumption that the words that can be heard asking the question “how do you feel about being the only straight person here” were directed to the appellant when in fact the video makes plain they were directed to the person R who appears to be walking on the left of the appellant.

Sequence 2

138. Apart from stating that he has taken the general credibility issues into account there is no consideration by the magistrate of how the significantly adverse credit findings made earlier impact on his consideration of the evidence on this charge which he considered cogent and credible. This is perhaps of greater significance given that the magistrate considered all the accounts of the offending given by the complainant to be detailed and that she presented well. There does not appear in the reasons any diminution of this favourable view of her giving evidence based on the established credibility deficits.

139. The failure to give greater weight to the credibility issues is magnified in importance because 4 of the 5 reasons for accepting her evidence have as their source the complainant.

140. The one aspect of the five reasons that does not come from the complainant is the words spoken by the appellant. The magistrate found that this conduct amounted to conduct reflecting a consciousness of guilt “in relation to something seriously wrong that he had done to the complainant”. The magistrate found there was no other reasonable and rational inference to be drawn from the circumstances.

141. The words relied on by the magistrate to found that conclusion are set out at [161] of his reasons where the appellant said to the complainant’s father “I’ve done something really bad [father]. I’ve fucked up. I really fucked up”; the magistrate then refers to the words spoken to the complainant’s mother which were “I’ve hurt her. I’ve done something really bad”. The magistrate then refers to the appellant’s gestures with his hand to the genital area but does not recount the exchange between the complainant’s mother and the appellant where he admits to having done something with his fingers.

142. With respect that evidence makes good the submission for the appellant that the apology could be in respect of some perceived or asserted slight, other than the alleged offending. The evidence allows for an inference that there was some conduct of the appellant involving his fingers which caused some distress to the complainant.

143. The other aspect of it is that the statements by the appellant are so extreme. Yet the complainant in her evidence complained of emotional and not physical pain. The evidence established that the appellant would excessively apologise, to the point of apologising when it was not appropriate. That disposition is in operation here, or may well be, that is, the apologies on all the evidence are likely excessive, and an overreaction, and not open to be relied on as establishing the charge.

144. I have set out above the five reasons given by the magistrate for accepting the complainant in respective sequence 2. Apart from the first four reasons all having as their foundation complainant herself I would note the following features:

1. The concept of being consistently imprecise is a less than adequate basis to accept a witness, particularly one who admits to lying and withholding evidence, and who gives evidence of matters so implausible as the 70 alleged sexual assaults. As already noted, the magistrate seemed to have had a similar view of her credibility in respect of the accounts that were rejected, at least in terms of being forthright and detailed. Yet in this charge, on a significant matter as to whether or not she was awake, where there is inconsistency, it is considered truthful, despite not accepting the her evidence on the rejected matters. The reason for this is given at [154A(b)] of the magistrates reasons, namely the circumstances of being sexually assaulted, which, with respect, is to assume what is needed to be proven. With respect, I consider that the magistrate has erred here. Too little weight is given to the credibility issues, and too much weight is given to assessing the matter as if the sexual assault occurred. If the reasoning was to have a starting point of the fact of the sexual assault needing to be established and not assumed, then the magistrate’s conclusion would not be reached.

2. The argument for the appellant that the concern of the complainant as to her father’s expected reaction to learning of her sexual conduct explains her allegations is dealt with by the magistrate in a way that I agree with. That of course does not mean the complainant is to be accepted as there is no onus on the appellant, and there remains the range of other matters that damage the complainant’s credit.

3. In relation to the second reason at T59 in reference to the immediate complaint to her friend Ms BP the magistrate says the only rational and reasonable inference to draw is that something seriously wrong happened to the complainant in her bedroom. Yet again, there is no physical evidence to support such wrongdoing to that extent and a concession by the complainant of only suffering emotional pain. There is no proper consideration here of how to treat a complaint of the complainant with the established credibility defects. This is a case where, as was said in Jones as noted at [123] above, that the findings on sequences 3, 4, 5, 7 and 8 do not permit the magistrate to be satisfied beyond reasonable doubt on sequence 2. Whilst there is not the delay in complaint in respect of sequence 2 as there was in Jones the Jones approach on the facts of this case should be adopted.

4. The magistrate placed significance on the complainant saying “I never want to see you again. We are done. There is nothing you can do. You just raped me. I was fucking sleeping. I woke up to you dragging me around”.

5. The magistrate does not mention here the message sent at about that same time where the complainant said “I don’t think you understand what you just did” and the young person said “OMG” and “I just realised”.

6. These messages are confusing. It is peculiar that the complainant would say that the young person did not understand what he just did and that he would then only just realise it. Given that on the complainant’s version this is approximately the 70th time in which there has been non consensual sexual intercourse it is difficult to conceive of what he could have done that he did not realise he was doing. One possibility is that it may have been the first time that he did whatever it was that occurred whilst she was asleep; on the other hand other evidence suggests that what occurred involved his fingers and yet other evidence suggests that what occurred did not occur whilst the complainant was asleep. In my view these messages, rather than being admissions, add to the confusion as to what may have occurred that evening and leave reasonable doubt.

7. There is also the issue of what version of the complainant’s evidence to accept as to what was happening when she woke up. In the interview of 7 November, she says she woke up and he was raping me, that she lay there, and he was dragging her. In the 18 November interview her version is to the same effect. Yet in the most contemporaneous complaint of all, the text referred to above, the complainant said “I woke up to you dragging me around”. The magistrate actually cites this message without comment as to its inconsistency with other evidence, and it forms part of one of his 5 reasons for being satisfied as to sequence 2.

8. It is true that the complainant made an immediate complaint. However as already noted that evidence is far from crystal-clear. Perhaps most importantly of all, at T 60.20-27 when accepting the consistency of the complaint evidence supporting the complainant’s credibility there is then no consideration given to the broader credibility issues.

9. As to reason 5 reference is again made to the same text messages as referred to for the second reason and the same comments and views I have expressed apply here. The conclusion of the magistrate was that the only rational and reasonable inference to draw was that the appellant was acknowledging he had done something to the complainant and was apologising for that. That may well be so but for the reasons just outlined just what that was has not been established.

145. The passages at [107]-[108] above are adopted here. In finding sequence 2 established beyond reasonable doubt, the magistrate ultimately returns to rely on the evidence of the complainant, a person of seriously damaged credit. The magistrate’s view of her as a witness as being intelligent and forthright was not a view that varied from charge to charge but did not prevent him rejecting her on 5 of 7 sequences. The magistrate, in considering sequence 2 has failed to take into account, either adequately or at all, the damaged credit of the complainant. To adopt the words of Jones (although of course the facts are different), and to repeat the conclusion stated at [144.3] above, the findings on sequences 3, 4, 5, 7 and 8 do not permit the magistrate to be satisfied beyond reasonable doubt on sequence 2.

146. In order to be able to establish each element of an offence beyond reasonable doubt in a case where the court must be satisfied as to the truthfulness of the only other person besides the appellant who was present at the time of the alleged offence there needs to be some far more persuasive matter of logic or common sense evidenced than is present in this case. In this case, apart from the evidence which has the complainant as its source, it is the video for sequence 6 which with all due respect shows precisely what the appellant was arguing and in respect of sequence 2 it is the imprecise statements of the accused himself together with a complaint of the very person lacking in credit.

147. I accept the submission of the appellant that the magistrate has not “grappled with” or “adequately confronted” the seriously damaged credibility of the complainant. This has been referred to above as failing to explain how the matters of adverse credit have been taken into account. On reflection, as already noted, the magistrate is plainly aware of the adverse credit issues, and given that, it must be that he considers the other matters he has set out (such as the 5 reasons in respect of sequence 2) outweigh the concerns raised by the adverse credit issues in respect of sequences 2 and 6. The error of the magistrate is that, as found at [115] above and discussed at [144] above, he has not properly recognised, or has placed insufficient weight on, the adverse credit issues, and has placed too much weight on the other matters he has taken into account.

148. As noted at the beginning of these reasons (at [3]), this court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. The result at first instance ought to have been the dismissal of sequences 2 and 6, due to the complainant’s lack of credit, and the absence of any sufficient or adequate matter of logic or common sense being evidenced to satisfy the fact finder beyond reasonable doubt that the offences occurred as alleged by the complainant.

149. For those reasons in my view the appeal should be allowed.

Orders

150. The appeal is allowed.

151. The convictions in respect of sequences 2 and 6 are set aside.

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Decision last updated: 17 May 2023