R v Mercuri De Figueiredo - [2021] NSWDC 424

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Mercuri De Figueiredo [2021] NSWDC 424
Hearing dates: 27 July 2021 – 10 August 2021
Decision date: 20 August 2021
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Verdict of Guilty to Counts 1, 2 and 3.

Catchwords:
CRIME – judgment – use intoxicating substance to commit indictable offence – sexually touch another person without consent – attempted sexual intercourse without consent

Legislation Cited:
Crimes Act 1900
Criminal Procedure Act 1986
Law Enforcement (Power and Responsibilities) Act 2002 (NSW)

Cases Cited:
Davey v Lee [1968] 1 QB 366

Category: Principal judgment
Parties: Director of Public Prosecutions (Crown)
Romolo Giuseppe Mercuri De Figueiredo (Accused)
Representation: Counsel:
A Hughes (Crown)
J Ellis (Accused)

File Number(s): 2020/00177851
Publication restriction: s 578A of the Crimes Act 1900 applies so as to prohibit the publication of any material which may identify the complainant in the proceedings

Judgment

Evidence in the Crown Case
Cross-examination of the Complainant
Re-examination of the Complainant
Evidence of the Officer in Charge, Detective Senior Constable Andrew Boje
Evidence of Barbara Moyano
Evidence of Dr P Van Niewenhuijzen
Evidence of the Accused
Crown Case in Reply
Crown Address
Address for the Accused
Directions of Law
Assessment of Witnesses Generally
Assessment of the Evidence of the Complainant
Assessment of the Evidence of the Accused
Exhibit M – Facebook messages between the complainant and the accused
The CCTV Evidence
Accused’s E.R.I.S.P.
Accused’s Evidence Generally

Findings of Fact
Determination
Verdict

Judgment

On 26 July 2021, Yehia SC DCJ ordered that this matter proceed as a Judge alone trial pursuant to s 132 of the Criminal Procedure Act 1986.

On arraignment, the accused pleaded Not Guilty to the following counts on the Indictment:

Between the 25^th day of April 2020 and the 26^th day of April 2020, at Waterloo in the State of New South Wales, did administer an intoxicating substance to another person with intent to enable himself to commit an indictable offence, namely, assault.

This was an alleged offence pursuant to s 38(a) of the Crimes Act 1900.

On the 26^th day of April 2020, at Waterloo in the State of New South Wales, did intentionally sexually touch SS without her consent.

This was an alleged offence pursuant to s 61KC(a) of the Crimes Act 1900.

On the 26^th day of April 2020, at Waterloo in the State of New South Wales, did attempt to have sexual intercourse with SS without her consent and knowing that SS had not consented to the sexual intercourse.

This was an alleged offence pursuant to s 61I of the Crimes Act 1900.

The elements of Count 1 on the Indictment are as follows:

That the accused, between 25 April 2020 and 26 April 2020 at Waterloo in the State of New South Wales,

Did administer an intoxicating substance to another person,

With intent to enable himself to commit an indictable offence, namely, assault.

The elements of Count 2 on the Indictment are as follows:

That the accused, on 26 April 2020 at Waterloo in the State of New South Wales,

Did intentionally sexually touch SS,

Without her consent,

Knowing that she did not consent.

The elements of Count 3 on the Indictment are as follows:

That the accused, on 26 April 2020, at Waterloo in the State of New South Wales,

Did attempt to have sexual intercourse with SS,

Without her consent, and

Knowing that SS had not consented to the sexual intercourse.

The Crown bears the onus of proving each of the elements beyond reasonable doubt. The onus of proof remains at all times on the Crown to prove the elements of each of the charges beyond reasonable doubt. I am mindful that speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference.

Evidence in the Crown case

The complainant gave evidence through a Spanish interpreter. She was from Chile and had been in Australia for almost three years. She first arrived on a tourist visa and then commenced studying on a student visa.
In April 2020, the complainant received a friend request from the accused via Facebook. She had never met him before. They proceeded to exchange messages via Facebook Messenger in English, Spanish and Portuguese. She also received voice calls from the accused via Facebook Messenger.
The complainant gave evidence that five or six days after they first exchanged messages, she and the accused were talking on Facebook and “out of the blue he said ‘I’m touching myself’”. She then told him that she did not want to speak to him anymore.
The accused then sent her a number of messages and attempted to call her however the complainant did not respond to his messages or take his calls. He asked her to forgive him and said that he’d made a mistake. She gave evidence that he “insisted and insisted and finally she said OK” and that she was going to give him an opportunity. These exchanges took place during the COVID-19 lockdown in Sydney in April 2020. That lockdown was causing the complainant financial difficulty because she could not afford the rent for her room. The accused told her that he had a room that he could rent to her and that if she could not afford it, he had a room that he could give to her in his house. She declined the latter offer, because “I didn’t know him”.
On 25 April 2020, the accused told the complainant via Facebook Messenger that she could rent a room from him in Coogee for $150. He told her that they could meet that day and talk about the room in person. He picked her up from outside her building and told her that they would have something to eat and talk about the room rental at his house.
The complainant gave evidence that she felt he was “a little anxious” during the car journey and that he was driving fast and wasn’t saying much.
She gave evidence that they parked on the street outside his building and walked to his apartment. He offered her a drink and she accepted a glass of wine. The complainant gave evidence that she had been feeling unwell earlier in the day but at the time she accepted the wine, she was feeling fine. She gave evidence that they spoke about the room at Coogee and he told her that he owned the place but he wasn’t sure at that time if anyone was living there. She gave evidence that the accused “said it was a business that he had with his ex-wife and now he was in charge of that business, that he had to make the business continue – carry on.”
The complainant gave evidence that she had taken three sips from the half-glass of wine that he gave her and then went to the bathroom. When she returned to the dining room, the accused had filled her glass of wine to the top.
The complainant gave evidence that they were talking at the dining table for about 20 or 30 minutes and that she drank a glass of wine whilst the accused drank beer. She started feeling hot and asked him to open the window. She then went out onto the balcony with the accused, where they continued to converse. While she was on the balcony, the accused told her that he was offering her the room in Coogee for a good price but if she didn’t have the money she could stay at his house in Waterloo for free and if she decided straight away to say “yes”, on the following Monday he could help her move her things into his place.
The complainant gave evidence that she was at that time “feeling fine”. They were on the balcony for a long time and she asked him if he had something sweet to eat, such as chewing gum or a mint, as her mouth was dry. He said he didn’t have anything sweet to offer her, however he could make her a caipirinha. A caipirinha was a sweet drink that the complainant had tried before when she was in Brazil. The accused went inside and came back with two glasses of caipirinha. He gave her a glass which she tasted however it was very strong and she told him it was too strong and asked him to change it. He then went back into the kitchen, following which he came back with another glass which was sweeter and had less alcohol. She consumed that drink over 10 or 15 minutes.
The complainant gave evidence that she told the accused that she wasn’t very keen on moving to a new home because she had a really good girlfriend where she lived. She then gave the following evidence:

“Q. And what's the next thing that you remember happening?
A. INTERPRETER: I was telling him that I felt really well with the girlfriend or the person that lived with me, that was living in the same place where I was living, and that his girlfriend visited on weekends and I was telling him how comfortable I felt with her. And as I was telling him all of this, I started to feel very sick, very unwell.
Q. And when you say you felt unwell, what did you feel like?
A. INTERPRETER: It was very odd because I was talking normally and from unexpectedly I started feeling very cold, incredibly cold.
Q. And did you notice anything else, other than feeling very cold?
A. INTERPRETER: Yes. I felt as though my body had bubbles all over it, bubbles all of my body, and in my body.
Q. What else did you notice at that point?
A. INTERPRETER: I tried to move because I didn't know what was happening to me, and I remember that Romolo came closer to me and put his shoulder right next to me.
Q. And what did you take that to mean?
A. INTERPRETER: For me that was odd. And I moved away from him.
Q. And what happened after you moved away?
A. INTERPRETER: I moved away and he went inside, and I stayed alone on the balcony. He went inside.
Q. And did you see what he was doing when he went inside?
A. INTERPRETER: Yes, he went inside and he put music on, and he started dancing.
Q. And how long do you think you stayed outside on the balcony for?
A. INTERPRETER: I think it was only it was for a few seconds because I went inside.
Q. And how were you feeling at the point that you went inside?
A. INTERPRETER: Very slow.
Q. And what did you do when you got inside?
A. INTERPRETER: I sat down on the floor.
Q. Why did you sit down on the floor?
A. INTERPRETER: I don't know.
Q. What happened after you sat down on the floor?
A. INTERPRETER: The dog jumped up and came close to me and I started moving my hands.
Q. And how were you feeling as that was happening?
A. INTERPRETER: I was confused. I didn't know what was happening to me. I didn't understand.
Q. What's the next thing you remember after you sat on the floor and the dog came up to you?
A. INTERPRETER: He called the dog over to him. He took him over to the balcony and left him there on the balcony. He closed the balcony door, he closed the window and he closed the curtain.
Q. And what did he do after he closed the curtain?
A. INTERPRETER: He sat down in front of me on the lounge.
…
Q. What happened after Romolo sat in front of you on the lounge?
A. INTERPRETER: He was sitting down on the sofa, on the lounge, and I was sitting down on the floor, and he was looking at me.
Q. How long did that go on, him looking at you?
A. INTERPRETER: I don't know.
Q. Do you remember anything else happening after he was sitting on the lounge looking at you?
A. INTERPRETER: Yes.
Q. What's the next thing you remember?
A. INTERPRETER: He came towards me and he sat down on the floor next to me.
Q. What happened after he sat on the floor next to you?
A. INTERPRETER: He grabbed my shoulder.
Q. And what did you do when he grabbed your shoulder?
A. INTERPRETER: He grabbed my shoulder and he moved me towards him and he kissed me.
Q. And where did he kiss you?
A. INTERPRETER: On my mouth.
Q. What did you do when he kissed you on the mouth?
A. INTERPRETER: I didn't understand what was happening. I pushed him away and I stood up.
Q. And what did you do after you stood up?
A. INTERPRETER: I went to the bathroom.
Q. And how were you feeling as you were going towards the bathroom?
A. INTERPRETER: I was feeling dizzy.
Q. Did you notice anything else?
A. INTERPRETER: I was totally frozen, as in, cold.
Q. Did you notice anything about yourself other than that you were frozen and you were dizzy?
A. INTERPRETER: I felt very slow.
Q. What did you do once you got to the bathroom?
A. INTERPRETER: I looked at myself in the mirror.
Q. Did you notice anything when you looked at yourself in the mirror?
A. INTERPRETER: Yes.
Q. What did you notice?
A. INTERPRETER: My pupils were the size of a grape. Very big.
Q. Okay. And how did that make you feel, when you noticed that?
A. INTERPRETER: Horrible.”

The complainant then gave the following evidence:

“Q. And what did you do after you went out of the bathroom?
A. INTERPRETER: I was trying to calm myself down and not to fall into panic. I was trying to calm myself down.
Q. Where did you go when you left the bathroom?
A. INTERPRETER: I went back to the living room.
Q. And what did you do when you got to the living room?
A. INTERPRETER: He came close to me again to try to kiss me.
Q. Okay. And were you standing when he came close to you to try to kiss you?
A. INTERPRETER: I don't remember.
Q. When you say he came towards you and tried to kiss you, what did he
do or what were his movement?
A. INTERPRETER: I said to him, "You drugged me."
Q. And did he say something back to you?
A. INTERPRETER: He said, "No, I haven't drugged you."
Q. And how did you respond when he said that to you?
A. INTERPRETER: I said, "Yes, you did. You drugged me. Tell me, why did you drug me?"
Q. And how did he respond when you said that to him?
A. INTERPRETER: He looked at me. He looked at me and I said to him, "Do you think I'm stupid? You drugged me," and he said, "Yes."
Q. Okay. And what did you say when he said, "Yes"?
A. INTERPRETER: "Tell me which drug you put in the drink. Tell me which drug you put in it." I was scared because I didn't know how my body was reacting.
Q. And what did he say when you said, tell me which drug you gave me?
A. INTERPRETER: He said, "I put in it love.
…
Q. When he said to you that he put love in your drink, did you say something back to him?
A. INTERPRETER: I didn't understand what he was saying. I didn't understand what he meant. And he said, "amorch," in Spanish. He didn't say love, he said, "amorch." I will never forget that.
Q. So, what did you do when he used that word "amorch," did you say something, or did you do something?
A. INTERPRETER: Yes, of course.
Q. What did you do?
A. INTERPRETER: I didn't understand what that meant, so I told him "Tell me what you put in it".
Q. And what did he say?
A. INTERPRETER: And he said the name of the drug.
Q. And what was the name of the drug that he told you he put in it, in your drink?
A. INTERPRETER: I don't remember the name.”

The complainant then gave evidence that the name of the drug nominated by the accused was MDMA.
The complainant gave evidence that the accused grabbed her by the shoulders and that she was feeling confused. She felt very drowsy and her body felt very strange, as though it was numb. The accused went out onto the balcony and his dog came inside and lay on her legs. She grabbed her mobile phone and took a photo of the dog. She gave further evidence that after the accused told her that he put MDMA in her drink, he showed her a plastic bag which was small in size and had images printed on the outside. He offered it to her to keep and she refused. The contents were white in colour and resembled flour. She gave evidence that he then put the drug in his shirt pocket.
The complainant then gave the following evidence:

“Q. What's the next thing that you remember, after him putting the drug in his shirt pocket?
A. INTERPRETER: And when I woke up.
Q. And what do you remember, from when you woke up?
A. INTERPRETER: I was lying on the sofa.
Q. And were you laying on your side or on your back?
A. INTERPRETER: I was on my back with my head towards the balcony.
Q. And what else did you notice when you woke up lying on your back?
A. INTERPRETER: He was on top of me.
Q. Just to be clear, who was on top of you?
A. INTERPRETER: Romolo.
Q. And how was he on top of you, was he sitting on you or lying on you, or something else?
A. INTERPRETER: He was, with his body, in front, on top of me, in front of me.
Q. Was his body touching your body?
A. WITNESS: No.”

The complainant clarified that whilst the accused was on top of her, not all of his body was touching hers. She then gave the following evidence:

“Q. [Complainant], I asked you what Romolo was doing while he was over the top of you?
A. INTERPRETER: He was pulling down my pants, my jeans.
Q. And when you first woke up were your jeans up, or were they part down, or something else?
A. INTERPRETER: I have them down my thighs, with my underwear.
…
Q. [Complainant], you gave evidence a moment ago that when you woke up your pants were down your thighs, how far down your thighs were they?
A. INTERPRETER: About one hand length again from the knee.
Q. And perhaps I should ask this. Were your jeans one hands length away from your knee?
A. INTERPRETER: More or less.
…
Q. [Complainant], just before the link dropped out, I asked you and how far down your thighs your underwear was?
A. INTERPRETER: It was almost the same as my jeans.
Q. And now you gave evidence that when you wake up Romolo was trying to pull your jeans down, is that correct?
A. INTERPRETER: Yes.
Q. Was there anything that you noticed about the way that he was pulling them down?
A. INTERPRETER: Yes.
Q. What was it that you noticed?
A. INTERPRETER: With one hand he was pulling my pants down, and the front of his jeans was unzipped, was open.
Q. Now I've asked you about your pants. Did you notice anything else about your clothing when you woke up?
A. INTERPRETER: Yes.
Q. And what was it that you noticed?
A. INTERPRETER: The blouse, my blouse was pulled up.
Q. And how far up was it pulled?
A. INTERPRETER: My chest was exposed.
Q. Was Romolo saying anything as this was happening?
A. INTERPRETER: No, nothing.
Q. Did you do anything, once you woke up and noticed that all this was happening?
A. INTERPRETER: Yes.
Q. And what did you do or say?
A. INTERPRETER: I said, "What are you doing".
Q. And did he respond to that?
A. INTERPRETER: Nothing.
Q. Did he do anything when you said that?
A. INTERPRETER: I don't know, I don't remember.
Q. After you said, "What are you doing", to him, what did you do?
A. INTERPRETER: I tried to scream, but I couldn't because I couldn't feel my body, I couldn't feel anything.
Q. And after you tried to scream but you couldn't, what happened next?
A. INTERPRETER: I tried to push him away from being on top of me.
Q. And were you able to do that?
A. INTERPRETER: He also moved so I could get away.”

The complainant then gave evidence that she pulled her pants up and went to the bathroom. She leaned against the door of the bathroom because there was no lock and started to check her mobile phone to let someone know what had happened. She gave evidence that she was scared and the accused was calling out for her to open the door. She told him that she was calling the police and he kept insisting that he wanted her to come out of the bathroom, saying “I need to speak to you”. She gave evidence that when she left the bathroom she told the accused, “I have called the police” and that she observed that he was scared. She grabbed her handbag and he told her that an Uber was waiting for her. They left the apartment building together and a car was parked outside. The complainant gave evidence that the accused tried to grab her from behind, but she got away and got in the car. The Uber driver took her home but told her that he was getting insisting phone calls on his mobile phone.
The complainant gave evidence that she felt terrible when she arrived home. She had a shower then vomited. She then spoke to a friend, Patricio, on the phone via text messages. She also communicated with a friend, Solange, via text message. She was eventually able to sleep.
The complainant gave evidence that she felt unwell for about two days. During that time, she felt very down, very tired and her body was shaking. She did not eat.
The complainant gave evidence that the next morning the accused started calling her and sending her text messages that she did not answer. He did that for two days and she gave evidence that she started asking him why he had drugged her. She finally blocked his account on Facebook, two or three days later.

The complainant gave evidence that weeks passed and then she went to the police. When asked why she waited that long, she gave evidence that “I didn’t know what to do, never in my life had anyone done something like this to me. Never. Never.”
The complainant gave evidence that she had never taken MDMA before and never gave permission to the accused to give her drugs or to touch her. She denied saying or doing anything to encourage the accused to start a romantic relationship with her in his apartment or beforehand. She gave evidence that she had previously sent him a photograph of herself in a bikini, taken from “up front”.
Exhibit A became a sketch plan of the accused’s apartment drawn by the complainant.
Exhibit B was a photo taken by the complainant of the caipirinha drink, given to her by the accused.
The complainant identified 108 pages of messages between herself and the accused between 13 April 2020 and 13 May 2020. That bundle was marked for identification as MFI #1 and ultimately became Exhibit U.
The complainant identified a bundle of messages between herself and Luiz Rozas comprising 18 pages which were marked for identification as MFI #2 and eventually became Exhibit L.
The complainant gave evidence that she made a phone call to the accused from Mascot Police Station in June 2020 that was recorded. During that call, they spoke in Spanish. A translation of the conversation became Exhibit F.
The complainant also gave evidence that she contacted the accused’s ex-wife after the incident on 26 April 2020. She found her account on Facebook on 13 May 2020. The five pages of messages she identified with the accused’s ex-wife became Exhibit C.
The complainant gave evidence that in the chat messages between her and the accused (Ex U), she was able to identify on page 44 of that document that she had asked the accused not to write to her anymore after he messaged her that he was touching himself. He had then deleted that message three or four seconds later.

Cross-examination of the complainant

In cross-examination, the complainant gave evidence that she had responded to a Facebook friend request from the accused on 13 April 2020. They started talking to each other at 7:25pm on that day and the conversation ended at 10:17pm. She denied that during that conversation she realised they had a lot of things in common, saying that it was the accused who said they had a lot of things in common.
The complainant agreed that during this initial conversation, she gave him some personal details about her life, including that she had dated a boy from England. She agreed that she told the accused that she had never been with a boy from Brazil and that on the next day she had further communication with the accused when she started talking to him at around 11:00am. She agreed that she sent a message about how she made connections with men when she dated men, but did not accept that it was an intimate conversation. She gave evidence that “for me, it is just a conversation”.
The complainant gave evidence agreeing that she could have stopped any communication with the accused but said that she was not feeling uncomfortable talking to him and that he was being very friendly. She accepted that the conversation became very personal and intimate but that for her it was not personal and intimate.
She agreed that she had sent him a photo of herself with a dog and a link to a song that she liked after he sent her three links with songs. The conversation continued on that day until nearly 9:00pm.
The complainant agreed that she asked the accused about his ex-wife or ex-girlfriend. She said that she was asking him because he told her he was previously in a relationship and was not feeling well because he had broken up with her.
It was put to the complainant that the accused was being romantic and had shown an interest in her to which she answered “absolutely not”. She did recall sending him two or three photos and that they discussed whether he believed in abstaining from sex until marriage. She accepted that she was talking about sex with the accused but said that “you can see that we were talking about love, marriage of people and he talked about sex”. She agreed that she had sent him a message saying “sex is very important in a relationship”. She gave further evidence that they were talking in general terms and not specifically about her.
The complainant agreed that she had sent the accused a link to a website “femiella.com”, advertising a “sweet baby romper” and had told him that she wanted to buy one.
The complainant was shown a screenshot of a message sent by her to the accused on 14 April 2020 at 8:34pm. The message contained a link to a website “femiella.com/products/sweet-baby-romper” with a photograph of a model wearing a garment. It became Exhibit 1. A further screenshot of a message sent by the complainant at 8:36pm contained a photograph depicting another model wearing a purple bodysuit. That screenshot became Exhibit 2.
The complainant was cross-examined about messages exchanged between her and the accused on that day, which included the accused asking the complainant if she wanted to have dinner with him and her prevaricating on that offer, suggesting that she may have dinner with him, “mayby next week [sic]”.
The complainant did not agree that in the first two days in which she had been communicating with the accused there had been no conversation about renting an apartment or moving into his apartment. It was put to her that up until that point, the conversation between them was quite flirtatious and personal. She answered:

“We spoke about many things in all honesty, and he showed himself as a person that one could trust. I wasn’t seeing anything bad about him.”

A third photograph sent by the complainant to the accused on 15 April 2020 at 8:19pm, which included two photographs of models wearing the same type of sleepwear, became Exhibit 3.
The complainant agreed that the accused had sent her a number of photographs of himself on the same day and that he had never sent her any inappropriate photographs.
In respect of the evidence the complainant gave in chief that the accused sent her a message stating “I am touching myself”, the complainant was asked as follows:

Q. And I suggest to you that this message was not for you.
A. INTERPRETER: That message, he sent it to me, and that message was before this conversation. It was at the beginning. We spoke about many other things. We didn't only talk about this. When he said, "I am touching myself," we were talking about other things, like, "How was your day?" and he came out with that out of nowhere. And that - he said that at the beginning. We had been talking for a very short time. That was before this.”

She was then asked:

“Q. And you said to him - I'm reading the translation on the right-hand side - "So give thanks to God that you haven't seen me dance the salsa because then you would have fallen in love hahahaha."
A. INTERPRETER: We were joking. Yes, I said that.
Q. I suggest to you that you are provoking him in a way where you were inviting him to see you dancing. Do you agree?
A. INTERPRETER: Absolutely not, because I did not think he was a degenerate.”

The complainant was asked further questions about her asking the accused whether he slept with his ex-girlfriend that day. When asked why she wanted know, she answered, “because he was talking about that”.
The complainant was cross-examined about messages she sent that day about not feeling well. She was asked whether she became unwell often and gave evidence that she felt sick in the stomach when she was nervous or was experiencing a stressful moment.
On 16 April 2020, the complainant exchanged messages with the accused about her living arrangements. She was cross-examined about that conversation and was asked:

“Q. I suggest to you, [complainant], that when you started talking about the accommodation was at that point, 16 April, in the evening; do you agree?
A. INTERPRETER: I'm not 100% certain. I am not 100% certain, but I mentioned it to him. I commented on it at the beginning of the conversation.
Q. On the same night, at page 50, the bottom of the page, if you look at the English translation, I suggest to you that Romolo said to you, "If you want, you can stay here in my house for a few days until you find something, or if you prefer, you can go to Coogee"?
A. INTERPRETER: Apologies, what time does that show - does that appear?
Q. 21.38, 21.39, it's the bottom two messages that Romolo sent you?
A. INTERPRETER: This is in Portuguese; just a moment.
A. WITNESS: Yes.
Q. Then you refused his offer. If you look at 21.45 towards the bottom of the page, you said to him, "There is something you should know about me. When I say no, is no and it is difficult to change my mind"?
A. INTERPRETER: When I refused what he offered me, at 21.41, I said, "I cannot accept, it's not correct, we don't know each other yet". That was my reply to his offer.
Q. Yes. So, we agree that you declined his offer, correct?
A. INTERPRETER: Yes, because he told he was living alone in his home, that's the offer that I rejected.
Q. But he also offered you to rent a room in Coogee where he didn't live, do you remember?
A. INTERPRETER: Yes.”

The complainant agreed that on 17 April 2020 at 1:48pm, she told the accused that she was going to block his account on Facebook. Notwithstanding that, she agreed that the next day on 18 April 2020, she continued talking to him. She gave the following evidence:

“Q. You said to him that you were not interested in talking to him, is that correct?
A. INTERPRETER: Yes, but he continued insisting.
Q. In your evidence-in-chief you said that because he kept apologising, you made contact with him again; is that correct?
A. INTERPRETER: It's not that we stopped contact. I said to him that I was going to block him and he insisted and insisted and insisted, and he started apologising.
Q. As of April 2020, you said you had been in Australia for two years. Is it correct to say that you had friends here in Australia?
A. INTERPRETER: I know a lot of people, but I have very few friends.”

The complainant agreed that on 25 April 2020, she made contact with the accused and asked, “hello, do you know any doctor?” She also told him on that day that she was seeking new accommodation and looking at a few rental properties. She agreed that during that conversation she told the accused that she was feeling unwell and that she’d had a “terrible night”. He offered to take care of her and she agreed that she subsequently sent him a photograph of herself in a bikini on her balcony. The photograph became Exhibit 4. She told the accused that she was feeling better and they arranged for him to pick her up at 7pm that evening. She gave the following evidence:

“Q. Do you agree that Romolo is asking you out, tonight, 7pm on 25 April 2020?
A. INTERPRETER: He was not asking me out. He told me he was going to pick me up at 7pm. Nowhere here did we have a date.
Q. Do you agree that he asked you if you liked sushi and you answered, "I love sushi"?
A. INTERPRETER: Yes, because I love sushi.”

The complainant agreed that she had known the accused for less than two weeks at that time and that she had never seen him in person. They exchanged further messages about that arrangement. She gave the following evidence:

“Q. Let me read you in full. It says, "What is your idea, question mark, for more late", can you see at 17.08?
A. INTERPRETER: Yes, I remember. I was asking, because he had said, asked did I want to eat something so I was asking "what's your idea". He had asked me if I had had dinner.
Q. And Romolo said to you "I could buy Japanese food for us, we could drink a wine, talk a little bit, some music or a movie on Netflix" can you see those messages?
A. INTERPRETER: Exactly. Nowhere there did he say that he was going to drug me and try to have sex with me.
Q. You said to him "Okay, but I need come back my home"?
A. WITNESS: Yes.
Q. And on page 20, which is the page before that, Romolo at 17.10 said to you "It's okay baby, I will take care of you", can you see that?
A. INTERPRETER: I'm looking for it because there are seven messages under 17.10. It says that, yes.
Q. And you answered "Okay, so we'll talk more late", correct?
A. INTERPRETER: Yes.
Q. When Romolo said to you "baby", you didn't tell him "Don't call me baby", correct?
A. INTERPRETER: Here in Australia, even if you tell somebody "Don't call me baby", all guys call you baby, it's so strange here, that's how it is in Australia. I didn't think it was odd; there are people that call you love, or darling. I didn't find it strange.
Q. But you understood, [complainant], when he said, "Baby", he was flirting with you, didn't you?
A. INTERPRETER: No, I took it as something normal.
Q. [Complainant], I suggest to you that you are being untruthful because earlier on when Romolo called you baby, you told him not to call you baby, do you agree or disagree?
A. INTERPRETER: I am being entirely truthful. I have no reason to lie. What I'm saying is that people here call everybody baby, that's what I am saying.
Q. A week earlier, [complainant], it was not okay for Romolo to call you baby, but on 25 April it was okay for him to call you baby, do you understand?
A. INTERPRETER: If I didn't say anything to him because that's that.”

The complainant agreed that the accused picked her up from outside her home at 7:30pm on 25 April 2020. Counsel then commenced to put the accused’s case to the complainant as follows:

“Q. And when you came to his car you were carrying a shoulder bag, didn't you?
INTERPRETER: I missed what you were carrying. You were carrying?
Q. A shoulder bag. A big handbag?
A. INTERPRETER: It was a small handbag, yes. A small bag, yes.
Q. And in this bag you had a bottle of red wine inside, didn't you?
A. INTERPRETER: No, that is not true.
Q. And you were also carrying two small bottles of beer, one of which was already open, didn't you?
A. INTERPRETER: No, it's not true.
Q. And you were already drinking from one of the bottle of beer, didn't you?
A. WITNESS: No. No.
Q. And you offered some - the other bottle of beer to Romolo when you sat in the passenger seat?
A. INTERPRETER: No, it's not true.
Q. And you also told Romolo that you had already had a few drinks before he picked you up. Do you agree or disagree?
A. INTERPRETER: Absolutely not.
Q. When you were in the car and Romolo was driving, I suggest to you that you had conversation - a general conversation in the car?
A. INTERPRETER: Yes.
Q. And I suggest to you that Romolo was not driving very fast as you said in your evidence-in-chief?
A. INTERPRETER: He was driving fast and I asked him to please slow down because I was scared.
Q. I suggest to you that Romolo was not anxious, but he was shy?
A. INTERPRETER: For me that is not being shy. He was anxious.
Q. You arrived in the apartment building by about 8.05pm; is that correct?
A. INTERPRETER: I don't remember the exact time, but more or less it must have been at around that time.”

CCTV footage of the accused and the complainant arriving outside his premises at Waterloo were then played in court. The USB key containing the CCTV footage comprising four files became Exhibit 5. Counsel proceeded to put the accused’s case to the complainant as follows:

“Q. [Complainant], you arrived at the building of Mr Romolo around 8.05pm on 25 April 2020, and when you entered the unit of Mr Romolo you noticed, didn't you, that his apartment was clean?
A. INTERPRETER: Yes.
Q. And he had ordered some Sushi for you two together, correct?
A. INTERPRETER: He had a small tray, I think, yes.
Q. And you sat at the dining table and you started eating the Sushi with some beer at first, correct?
A. WITNESS: No.
Q. You and Romolo then started to drink from a bottle of red wine that you had brought from your house, I suggest to you?
A. INTERPRETER: Absolutely not.
Q. You stayed at the table for about an hour discussing, and then Romolo got a second bottle of wine from his fridge, correct?
A. INTERPRETER: Absolutely not. He is lying.
Q. And Romolo never said to you, when you were drinking wine, "Drink, drink," I suggest.
A. INTERPRETER: It's not true.
Q. And you were drinking quickly your wine?
A. INTERPRETER: I absolutely disagree.
Q. And you were topping up your own glass yourself many times?
A. INTERPRETER: Absolutely not.
Q. You said that you only drank about three sips of your glass of red wine when you were sitting at the dining table. That's what you told Mr Crown. Do you remember?
A. INTERPRETER: Yes, about that. About that much. I did not drink all of it.
Q. And you said that you did not even finish this glass of wine. You said that to Mr Crown. Do you remember?
A. INTERPRETER: Yes, I did not finish it.
Q. Are you sure about that, [complainant]?
A. INTERPRETER: Yes, I am sure.”

The complainant was shown her statement to police made on 25 May 2020, which included at paragraph [15], “after about an hour, I finished the glass of wine”. She agreed with that statement. It was put to the complainant that she was trying to minimise the amount of alcohol that she consumed on that evening, to which she disagreed. Counsel proceeded to put the accused’s case to her as follows:

“Q. I suggest to you that when you were on the balcony, then you went back inside to reach into your handbag and you showed Romolo a joint that you had in your bag?
A. INTERPRETER: No. He is trying to say that I was drugged, that I was
drunk, and I swear for God never. He is lying, that is not true.
Q. [Complainant], can you just answer the questions that I'm asking you? I suggest to you that you said to Romolo "Do you mind if I light one", referring to the joint?
A. INTERPRETER: Absolutely not. I am not someone who smokes marijuana.
Q. And I suggest to you that Romolo said it was not a problem, and then you offered him some of the joint?
A. INTERPRETER: Absolutely not. It's not true.
Q. And you indeed, I suggest, smoked most of it, and Romolo only had a couple of puffs?
A. INTERPRETER: Absolutely it is not true.
…
Q. I suggest to you that after you kissed Romolo he went back inside to grab a beer?
A. INTERPRETER: Absolutely not. It's not true.
Q. Did you listen to music on that evening in the apartment of Romolo?
A. INTERPRETER: He had the TV on when we arrived.
Q. Did you play your music on his speakers in his house?
A. INTERPRETER: No, it's not true.
Q. Did you listen to music?
A. INTERPRETER: Yes, he played music.
Q. And I suggest to you that you asked Romolo to sit in a chair in the middle of the living room.
…
Q. And then I suggest to you that you performed a lap dance for about 20 minutes.
A. INTERPRETER: It is absolutely false.
Q. You are a dancer, aren't you, [complainant]?
A. INTERPRETER: No, I am not a dancer, I am a technical dance instructor.
…
Q. I suggest to you that on that night, you sat on Romolo's lap, facing him, and you put your arms around him?
A. INTERPRETER: It is absolutely false.
Q. You placed your bottom in his groin area?
A. INTERPRETER: Everything you are saying is absolutely false.
Q. I suggest to you that you kissed him on his neck and his mouth as you were performing the dance?
A. INTERPRETER: It's absolutely false.
Q. I suggest to you that the kisses that you shared on that night, were reciprocated. Do you agree or disagree?
A. INTERPRETER: I don't accept that. It's false. I never kissed him at any moment.
Q. I suggest to you that after the lap dance, and I understand you deny it happened, you danced with Romolo, together, in the living room?
A. INTERPRETER: I have never danced. It's false.
Q. You also told him some of your dance technique that you teach in class. Do you agree or disagree?
A. INTERPRETER: I disagree. Absolutely not.
…
Q. You showed him how to dance the reggaeton dance?
A. INTERPRETER: I don't even know how to dance reggaeton because I don't like it. Anyone who knows me can attest to that.
Q. Are you saying you don't know what it is, or you don't like it, [complainant]?

A. INTERPRETER: Yes, of course I know what it is.
Q. This dance involves a lot of movement from your pelvic region and hips. Is that correct?
A. INTERPRETER: Yes, but I have not danced that dance, nor have I taught him anything like that.
Q. At one point, Romolo took his guitar and he played some guitar for you. Do you remember?
A. INTERPRETER: At one point, I think he took his guitar, but I don't remember that part.
Q. You don't remember that he sang for you in Portuguese, Spanish and English?
A. INTERPRETER: He has not sang anything to me.
Q. He only played the guitar; is that what you're saying?
A. INTERPRETER: I don't know. I don't remember.
Q. You have a poor recollection of that evening, don't you, [complainant]?
A. INTERPRETER: There are some things that I remember very clearly, and other things that I don't remember very well. But the things that I don't remember well are the things after I started feeling unwell.
Q. But when you said that you remember he took the guitar, was that before you say you started feeling unwell, or after?
A. INTERPRETER: After.
Q. I suggest to you that Romolo played La Bamba in Spanish for you on the guitar?
A. INTERPRETER: I don't remember.
Q. And at this stage you had a lot of alcohol, do you agree?
A. INTERPRETER: No, I don't agree.
Q. And you also had consumed marijuana?
A. INTERPRETER: No, I don't agree.
Q. Now I suggest to you that around 11pm you ask Romolo to prepare something sweet?
A. INTERPRETER: No. I asked him something to eat, that was for something to eat that was sweet, and he offered me a sweet drink.
Q. He suggested that you have a capirina?
A. INTERPRETER: Yes.
Q. Which is a Brazilian cocktail with fruit and vodka, correct?
A. INTERPRETER: Yes, that's correct.
Q. And Romolo went to make the cocktails but he didn't have to make your cocktail twice as you said in your evidence?
A. INTERPRETER: Excuse me?
Q. I will reformulate. In your evidence to Mr Crown, you said that Romolo made capirina for you which was too strong and that he had to make another one, with less alcohol for you, is that correct?
A. INTERPRETER: No, he just added more juice to it so that it will be sweeter.
Q. And so, it was the same amount of alcohol, is that correct?
A. INTERPRETER: I don't know. It was less strong when he brought it back, and it was more sweet, it was softer.
Q. And you said to him that it was a really nice drink, didn't you?
A. INTERPRETER: I don't remember having said that to him.
Q. Do you remember then when he brought the cocktail you were sitting outside on the balcony?
A. INTERPRETER: I wasn't sitting down, I was standing.
Q. But you were on the balcony, weren't you?
A. INTERPRETER: Yes, I was on the balcony.
Q. And there was music playing, do you remember?
A. INTERPRETER: Yes, he had the TV on.
Q. And I suggest to you that at that point you were feeling fine, just intoxicated, do you agree?
A. WITNESS: No.”

The complainant identified a photograph taken by her of the two glasses of caipirinha that the accused brought to the balcony on 25 April 2020. The photograph became Exhibit 6.
Counsel continued to put the accused case to her as follows:

“Q. [Complainant], I suggest that after Romolo brought the cocktail outside, he went, himself, to the bathroom for about 15 to 20 minutes. Do you remember?
A. INTERPRETER: He was moving inside and outside, but I don't know where he went to.
Q. Do you remember that he left for an extended period of time and that you asked him, when he came back, "Did you take a shower?"
A. INTERPRETER: No, it's false.
Q. I suggest to you that whilst Romolo left you on the balcony for 15 to 20 minutes, which I understand you disagree with, you had finished your cocktail and you had drunken his?
A. INTERPRETER: That's completely false.
Q. You even said to him, "This drink is so good"?
A. INTERPRETER: It's false.
Q. Romolo said to you, "You should not drink from my glass," because he realised you had finished his cocktail.
A. INTERPRETER: That is completely false.
Q. After the cocktail, you ask for more wine. Do you agree or disagree?
A. INTERPRETER: I disagree completely. It is false.
Q. You continued talking with Romolo until about 2am. Do you agree to that?
A. INTERPRETER: False.
Q. Did you tell him that you had lived in Rio de Janeiro?
A. INTERPRETER: I went to Rio de Janeiro, that's true. But I told him that in a message.
Q. Did you tell Romolo on the night that your ex-boyfriend - that the boyfriend that you had when you lived in Chile, you were in a relationship for two years with him?
A. INTERPRETER: Yes, that's correct.
Q. You gave him some very particular details about what your ex-boyfriend was doing in Chile?
A. INTERPRETER: I don't remember that. What are they?
Q. You told him that your ex-boyfriend was Luis; is that correct?
A. INTERPRETER: Yes, everybody knows it's Luis. Yes.
Q. You told Romolo as well, that he was dealing drug?
A. INTERPRETER: Absolutely not. He is the cleanest person I've known in my life. The healthiest person I've known in my life.
Q. At 2am in the morning, you again kissed Romolo on his lips. Do you agree or disagree?
A. INTERPRETER: That's completely false.
Q. You had gone to the bathroom before kissing him. Do you remember going in the bathroom around 2am in the morning?
A. INTERPRETER: I remember that I went to the bathroom one time when he grabbed me by the shoulders and kissed me.
Q. Was the kiss before or after the bathroom?
A. INTERPRETER: When I was sitting on the floor. It was before. I was sitting on the floor when he grabbed me by the shoulders and he kissed me. I stood up and I went to the bathroom.
Q. I suggest to you that after you gave him a kiss, and you came back from the bathroom, and I understand you disagree with that, you were playing on the floor with the dog?
A. INTERPRETER: I don't accept that because I played with the dog on the floor for a while before he kissed me and I went to the bathroom.
Q. I suggest to you that whilst you were on the floor playing with the dog you said to him "What have you put in my drink because my pupils are dilated" do you remember saying that to him?
A. INTERPRETER: That's false because I said to him "what have you done",
because he had dragged me when I came back from the bathroom, not when I was playing on the floor.
Q. I suggest to you that when you came back from the bathroom you went and sat on the floor, and you played with the dog, and that's when you had this conversation with Romolo, do you agree or disagree?
A. INTERPRETER: False.
Q. Romolo said to you "Sorry [Complainant], I haven't put anything in your glass. I put MDMA in my glass, but you drank it when I went to the toilet", do you remember that?
A. INTERPRETER: Completely false.
Q. And he showed you a small bag with a little bit of white powder in it, do you remember that?
A. INTERPRETER: Yes, he showed me a small bag with a little bit of drug, but. I just said that he showed me a small bag with something white inside, but it was not in the moment he was describing.
Q. And at that point, when he told you that he had put MDMA in his glass, but that you drank it, you, I suggest to you, you were scared and you did not believe him?
A. INTERPRETER: False.
Q. He told you "I put it in my drink and I didn't expect you to drink my capirina", and he said, "I'm so sorry", do you remember him saying that?
A. INTERPRETER: It's a lie. False.
Q. And after that, you continue discussing with Romolo, who was trying to calm you down, and to take care of you, do you agree or disagree?
A. INTERPRETER: False.
Q. You kept accusing him of having put the drug in your glass, do you remember that?
A. INTERPRETER: Yes, I accused him that he had put drug in my glass. After he acknowledged that, he said he had done that.
Q. And I suggest to you that at no point he ever said to you that he had put the drug in your glass.
A. INTERPRETER: I'm sorry?
Q. I suggest to you, [complainant], that he never admitted putting drug in your glass.
A. INTERPRETER: He did say he had put drugs in my glass.
Q. I suggest to you that what he said is that the drug was in his glass, but you never believed him; is that correct?
A. INTERPRETER: He never said he had put drug in his glass.
Q. And this conversation about the MDMA in his glass occurred at around
2am in the morning. Do you agree or disagree or you don't remember?
A. INTERPRETER: I don't remember the time.
Q. Do you remember that he gave you water and he made a tea for you?
A. WITNESS: No.
Q. Do you remember that at that time you were texting on your telephone?
A. WITNESS: No.”

Counsel then asked the complainant about text messages she had exchanged with her ex-boyfriend, Mr Luis Rozas that commenced on 26 April 2020 at 2:25am. In those messages, she told Mr Rozas that she had been drugged, “in some food”, but clarified that the drug was put into her wine. She denied ever using drugs with her ex-boyfriend. She was then asked:

“Q. And it is the case, isn't it, that Romolo said to you "No, I put it in my drink and I didn't expect you to drink my capirina. I am so sorry"?
A. INTERPRETER: False, false.
Q. And I suggest to you the reason why you said, "I am safe, calm," is because at that time when you were texting Luis, Romolo was making tea for you and was trying to calm you down and was looking after you?
A. INTERPRETER: Absolutely not.
Q. And, lastly - I'm looking at the time, I want to finish on that topic - on page 10, [complainant], you said at the bottom of the page, at 302, "They gave me MDMA." Is that correct?
A. INTERPRETER: Yes.”

It was put to the complainant that her evidence that she had consumed approximately one glass of wine and a cocktail on the evening of 25 April 2020 was untruthful, which she denied. She accepted that she had told police in her statement dated 15 May 2020 that she had consumed two glasses of wine and an orange juice.
It was put to the complainant that nowhere in the Police COPS record (MFI #4) was there any reference to being kissed by the accused against her will. She said she did not remember if she said it or did not say it. She gave further evidence that when she went to the police station on 15 May 2020, a friend came with her and helped translate what she was saying.
It was further suggested to the complainant that she didn’t tell that friend that the accused had admitted to spiking her drink with a drug, and the reason it was not in her statement was because the accused never admitted to her that he put drugs in her drink. She gave evidence that she did not remember telling her friend, however the accused did admit putting drugs in her drink.
The complainant was cross-examined on messages that she sent to Luis Rozas in the early hours of 26 April 2020 when she was still at the accused’s apartment. She was asked about further messages she sent later that morning when she had left the apartment. She gave the following evidence:

“Q. Do you agree that nowhere on that page you have indicated to Luis that Romolo pulled your pants down and tried to rape you?
A. INTERPRETER: I didn't tell him anything. I told him later, about two weeks later approximately.
Q. Can you look at page 8?
A. WITNESS: Yes.
Q. You are still talking to him until 5am?
A. INTERPRETER: The messages are from zero ..(not transcribable).. to five in the morning. I think I was talking to two more people at the same time, telling them what had happened to me. But I was drugged, I don't remember how it was.”

The complainant gave evidence that she spoke to two other people that morning about what happened, namely, Patricio and Solange. She was cross-examined on further messages she sent to Luis Rozas later that day and denied eating anything whilst at the accused’s apartment.
The complainant disagreed with the proposition that she went to the police on 15 May 2020 because she had spoken to the accused’s ex-wife on 13 May 2020. She gave the following evidence:

“Q. So why did you wait until 15 May to go and report what happened to you?
A. INTERPRETER: Because I didn't know what to do.
Q. But you knew what to do on 26 April, because you said, "I will go to the police tomorrow. I will report it."
A. INTERPRETER: I knew I should go to report it but I didn't have the strength to go and do it.
Q. But you still had the strength to have communication with Romolo until 13 May; correct?
A. INTERPRETER: Yes, asking him why he had drugged me.
…
Q. And here again I suggest to you that you didn't tell him what happened with Romolo?
A. INTERPRETER: And I wasn't going to tell him in that moment. I was I was very unwell.
Q. But you could have said to him, instead of, "They could have raped me," you could have said, "He tried to rape me"?
A. INTERPRETER: No, he wanted to rape me. That's what he wanted to do.
Q. My question is, do you agree that you didn't tell Luis that Romolo tried to rape you when you had the chance to tell him in that sentence?
A. INTERPRETER: No, I didn't tell him.
Q. And the reason is because you knew that Romolo never tried to sexually assault you?
A. INTERPRETER: He did attack me sexually. Apologies. He did assault me sexually.
Q. But in that moment when you were talking to Luis, that's when you realised that it could have happened, I suggest.
A. INTERPRETER: No, false.”

It was put to the complainant that the accused did not offer her the bag of drugs, which she denied.
The accused’s case was put to the complainant as follows:

“Q. [Complainant], when Romolo was talking to you, you told him that it was not the first time that a person had put drug in your drink?
A. INTERPRETER: I don't remember that.
Q. Has this ever happened to you before April 2020?
A. INTERPRETER: Never.
Q. Because, I suggest, you would not accept Romolo's explanation, you became very loud. Do you agree?
A. INTERPRETER: I don't remember.
Q. And at that point Romolo said to you, "It is getting late and I will call an Uber to take you home."
A. INTERPRETER: I don't remember.
Q. And you said to him, I suggest, "No, you drive me home."
A. INTERPRETER: That's false.
Q. I suggest to you that Romolo said he could not drive because he had had too much alcohol.
A. INTERPRETER: False.
Q. Now, your evidence about being unconscious and waking up on the couch, I want to confirm that your evidence is that when you woke up Romolo's jeans were open; is that correct?
A. INTERPRETER: Yes.
Q. And you have a clear recollection of that, do you?
A. INTERPRETER: It was the first thing I saw when I woke up, when I lifted my head.
Q. And your evidence was that your chest was exposed; correct?
A. INTERPRETER: Yes.
Q. Was it your full chest that was exposed?
A. INTERPRETER: No, only one. This was pulled up, my top.
Q. I suggest to you that this never happened.
A. INTERPRETER: It did happen.
Q. Then it is your evidence, isn't it, that you immediately got up and went to the bathroom; correct?
A. INTERPRETER: First I looked, I looked at myself and I saw that my pants were down halfway my thighs with my underwear.
Q. But the next thing you did from the couch was to go into the bathroom; correct?
A. INTERPRETER: Yes, I got up and I pulled my pants up and I walked to the bathroom.
Q. And your evidence was that Romolo came behind the door; correct?
A. INTERPRETER: I was inside the bathroom when he started calling me from outside.
Q. But it's your evidence that he was behind the door; correct?
A. INTERPRETER: Yes.
Q. And from that point, how long do you say you were staying in the bathroom for?
A. INTERPRETER: I don't remember.
Q. Was it in terms of seconds, or minutes?
A. INTERPRETER: I don't remember how much time went by. If I knew, I will tell you.
Q. Your evidence was that you said to Romolo that you had called the police, correct?
A. INTERPRETER: I said that from inside, yes.
Q. But you didn't call police, did you?
A. INTERPRETER: No, because I didn't know the number.
…
Q. You said in your evidence that at that point Romolo said to you "I need to speak to you" and you said that he was scared, do you remember giving that evidence?
A. INTERPRETER: He said, "Open the door, I need to speak to you".
Q. But is that still your evidence that you said that he was scared?
A. INTERPRETER: Yes. His voice sounded as though he was affected, altered, scared, and when I saw him later his face looked as though he was desperate, scared.
Q. Do you agree that you never said that to police in May 2020?
A. INTERPRETER: I don't remember.”

The complainant was cross-examined about what she had told the police about leaving the accused’s apartment, namely, that she could not remember doing so. She did not agree that the reason that she did not remember was that she was highly intoxicated and she had consumed the accused’s glass containing MDMA.
CCTV footage of the complainant leaving the apartment complex at 4:23am, showing the accused wearing a pair of shorts, was played to the court. The complainant gave evidence that she never saw the accused getting changed from jeans into the shorts he was wearing. She was then asked:

“Q. In your evidence before this Court, you said that when you went for the Uber car Romolo tried to grab you and hold you from your back, correct?
A. INTERPRETER: No, I didn't say that exactly.
Q. So, what do you say happened?
A. INTERPRETER: I remember, I have a memory that when we when I was outside, he tried to like get close to me, like, to say goodbye. I moved away, removed myself away from him, that's what I remember.
Q. [Complainant], I will read your answer to Mr Crown at page 47 line 5. You said, "He tried to grab me from behind, from my back, like trying to hold me", do you remember saying that to Mr Crown?
A. INTERPRETER: Yes, yes, as though he was going to say goodbye to me.
Q. So, in reality he didn't grab you, do you agree with that?
A. INTERPRETER: No, I don't accept that because he wanted to I don't know whether to kiss me or to grab me, he tried to, like to have, like to be close. I remember something like that.
Q. Do you accept that you told the police "Romolo approached me in the
street and I moved away from him"?
A. INTERPRETER: I removed myself from him, yes.
Q. At that stage, [complainant], I suggest to you that you were paranoid?
A. INTERPRETER: I was scared.
Q. Because I suggest you thought that Romolo did something terrible to you?
A. INTERPRETER: I didn't think that, he did it.
Q. Now when you went in the Uber, do you agree that you were fine?
A. INTERPRETER: No, I was drugged, completely drugged.”

The complainant was cross-examined about her evidence in chief that she did not reply to the accused’s messages for two days. She was then cross-examined about the message she sent less than eight hours after she left the accused’s apartment and answered, “I don’t remember how much time went by, but I did not reply to the messages he sent. I was drugged.”
The complainant was also cross-examined about her evidence that she had blocked the accused’s Facebook account two or three days after the night in question. It was put to her that she continued speaking to him until 13 May 2020 but she gave evidence that she did block him. In the messages they exchange, there were a number of messages from the complainant asking the accused to name the drug that he gave her and the time he put it in her drink. She was asked:

“Q. I suggest to you that when you ask him that question, you already knew that it was MDMA because Romolo had told you in the early morning that it was MDMA. Do you agree?
A. INTERPRETER: Yes, but I wanted him to accept that by text, so I will go to the police.
Q. But if you said that Romolo told you that it was MDMA, do you agree that you could have still gone to police and tell police that Romolo admitted that it was MDMA that he put in your glass?
A. INTERPRETER: And that's what I did, because he never admitted that in text message, but he did tell me but he did tell me in person that it was that drug and that he had drugged me.
Q. [Complainant], Romolo always told you that it was MDMA, didn't he?
A. INTERPRETER: Yes, he said that.
Q. And what you said to him at page 4, at 1449, I read, "What drug did you give me?" You kept asking him the same question until 13 May. Am I right?
A. INTERPRETER: Yes, because I wanted him to say it, to admit to it in a text message.

Q. But you knew, [complainant], that you had another option to prove that he had given you MDMA, was to go to the hospital; correct?
A. INTERPRETER: That's correct, but people don't drug me every day so that I would know what the correct procedure to follow is.
…
Q. I suggest to you, [complainant], that you have been untruthful when you say that at the time you did not know what was the procedure to demonstrate that Romolo had given you MDMA?
A. INTERPRETER: I am telling the truth.”

The complainant was then asked:

“Q. Now can you see at the top of the page the message that you sent him at 1453? On the right hand side column, you said to Romolo, "I will go to the doctor then if you don't want to tell me, for them to do a test and tell me what drug you put on my drink."
A. INTERPRETER: Yes.
Q. So I suggest to you, [complainant], that you knew you could go to the doctor to get tested and the test would give you the indication of the drug that you say Romolo had put in your drink; correct?
A. INTERPRETER: Yes, I could have gone to the doctor but I didn't go.
Q. And is the reason why you never went to see a doctor or have your blood tested because it would also show that you had consumed a high amount of alcohol and smoked cannabis?
A. INTERPRETER: Absolutely not. I did not even smoke marijuana. I am not a person who smokes marijuana.
Q. But why, instead of keeping talking to Romolo until mid May, why you didn't immediately go to get tested?
A. INTERPRETER: I don't know. I just wanted him to accept it.
Q. And do you agree that on page 21 of this document in envelope A, Romolo said to you at 1455, I read in the right hand side column, "What you need is to sleep. You drank a lot yesterday. Three bottles of wine. Please go to sleep and you will feel better when you wake up. Tomorrow we speak again."
A. INTERPRETER: That's not true.”

The complainant gave evidence that although she blocked the accused’s account on Facebook, he kept communicating with her and she unblocked him because she wanted him to admit what he had done to her. The accused’s case was then put to her as follows:

“Q. And I suggest to you that what happened in the apartment is that you had a failure in your memory due to the alcohol and the drug in your system. Do you agree or disagree?
A. INTERPRETER: The drug that he gave me, yes.
Q. And the fact is that he never attempted to sexually assault you.
A. INTERPRETER: He did attempt to sexually assault me.”

The accused’s case was then further put to her as follows:

“Q. By watching the footage of you exiting the lift at 4.23am, I suggest to you that you spent about eight and a half hours with Romolo on that evening?
A. INTERPRETER: Yes.
Q. And I suggest to you that for some part of the evening you have absolutely no memory of what happened?
A. INTERPRETER: Exactly.
Q. And the reason why you didn't remember was that you were intoxicated and under the influence of a drug, including cannabis?
A. INTERPRETER: No, it's not true. It's not true. I was not. I was not like that. I was drugged because he drugged me. He drugged me.
Q. I suggest to you, [complainant], that you became paranoid and went in a state of panic.
A. INTERPRETER: No, it's not true, it's not true. I was not, I was not like that. I was drugged because he drugged me, he drugged me.
Q. I suggest to you [complainant], that you became paranoid and went in a state of panic?
A. INTERPRETER: No, it's not true.
Q. And you never believed Romolo when he said that the drug was for him?
A. INTERPRETER: He never said that the drug was for him. He said that he had put drug in my drink. I swear to you that he said that, I swear.
Q. I suggest to you that the drug was in his glass, and you drank his capirina, the cocktail?
A. INTERPRETER: False.
Q. And I suggest that you became so angry and frustrated with him that he would not admit that he put the drug in your glass, that you wanted to seek revenge?
HIS HONOUR: I won't allow it in that form.
ELLIS
Q. I suggest to you that you became so angry and frustrated with him, because he didn't want to admit that the drug had been put in his glass, that you made up the allegations?
A. INTERPRETER: I don't accept that.
Q. And I suggest to you that you were so desperate that you contacted Romolo's ex wife?
A. INTERPRETER: False.
Q. And I suggest to you that when you contacted Romolo on 25 April 2020, asking if he knew a doctor, it was actually an excuse for you to re contact Romolo?
A. INTERPRETER: False.
Q. And that your intentions, when you went with Romolo on that night, were to go on a date with him?
A. INTERPRETER: False.
Q. And that's why you sent him a sexy photograph earlier in the afternoon?
A. INTERPRETER: False. If I had wanted to have something with him, I will have told him.”

Re-examination of the complainant

In re-examination, the complainant clarified that the phone number ending in 551 sent by message by the accused to her was not her phone number. She could not recall why, in response to being sent the number, she had replied, “I cannot hear you”.
The complainant clarified that she had not seen the police COPS event record made on 15 May 2020 which she had been shown in cross-examination. The police officers to which she had reported the matter at Riverwood Police Station did not read their notes back to her and she did not recall them asking whether she had anything else to tell them.
Finally, the complainant gave evidence that she did not go to a doctor because, firstly, she didn’t know if going to a doctor would help her and secondly, her financial situation was not very good at the time.

Evidence of the Officer in Charge, Detective Senior Constable Andrew Boje

The Officer in Charge (“OIC”) gave evidence of the steps he took in the investigation of the complaint. Exhibit D was a surveillance device warrant issued on 5 June 2020. Pursuant to that warrant on 11 June 2020, the complainant forwarded a series of messages from Facebook Messenger between herself and the accused to Mascot Police Station. Those messages became Exhibit E.
The OIC gave evidence that at about 11:47am, the complainant called the accused and the conversation was recorded. It was in Spanish and Portuguese and a copy of the translation, and revised translation, became Exhibit F. A statement of the translator, Ms Frantz, dated 1 April 2021, became Exhibit G.
The statement from the Uber driver Mr B. Lowe, became Exhibit H. He had no relevant recollection.
Exhibit J was a six page document containing stills taken from the CCTV footage and Exhibit K was a plan of the accused’s apartment.
The messages sent between the complainant and Luis Rozas, which had formerly been marked for identification as MFI #2, were admitted through the OIC and became Exhibit L.
The print-out of Facebook messages between the complainant and the accused between 13 April 2020 and 13 May 2020, which had formerly been marked for identification as MFI #5, were admitted and became Exhibit M.
The OIC gave evidence that on 15 June 2020, he attended the accused’s premises for the purpose of arresting him. The accused was taken to Mascot Police Station where he was interviewed and following that interview police took possession of his phone. A cellebrite extraction was undertaken on the phone and an extract of messages exchanged between the accused and Mr E. Guilherme was obtained.
Exhibit N was a one page document comprising WhatsApp messages between the accused and Everton Guilherme. At 9.55am on 26 April 2020, the accused sent a message stating “Lots of drugs yesterday”.
Exhibit O was a three page document comprising messages between the accused and Yuri Crane. On the same morning the accused sent messages stating, “I met a girl yesterday”, “I fell in love”, and “It was bad with the ending”.
The OIC gave evidence that the accused accepted an interview following his arrest and his ERISP interview was played in court. The disk comprising the interview became Exhibit P and the ERISP transcript was marked for identification as MFI #7. Exhibit Q was a two page document comprising, inter alia, a photograph taken by the complainant on 26 April 2020 at 3:31am of the accused’s dog sitting on her lap. The second photo taken by her on 25 April 2020 at 9:57pm was of the two drinks on the balcony.
The OIC gave evidence that he obtained exterior photographs of the accused’s apartment complex and six pages of photographs became Exhibit R.
In cross-examination, the OIC agreed that when he attended the unit of the accused his bodyworn video was on. He agreed the accused was concerned about leaving his dog in the apartment and that he gave authorisation to the police to conduct a crime scene investigation.
The OIC accepted that when spoken to, the accused said to police, “that’s just crazy, I don’t believe that she said that, that I sexually abused her.”
The OIC agreed that he did not call the Consulate-General of Brazil in Sydney to tell them that the accused was under arrest. He agreed that he had an obligation to do so as a police officer, but gave evidence that the accused was offered the opportunity to speak to a support person or legal representative during police custody. It was put to the OIC that prior to the ERISP interview he said to the accused:

“If you want to go home and see your dog, you will need to go to the conference room and give a statement. If you have nothing to hide, you should give a statement as it would be better for you and then you can go home.”

The OIC denied that conversation.

The OIC gave evidence that he recalled the complainant referring to having contacted a person called Solange, but did not recall her referring to a person called Patricio. He gave evidence that he did not contact either of those two persons as the complainant told him that she did not want him to contact them due to close family ties. The OIC gave evidence that he was aware from the complainant’s statement that Patricio was the first person she said she told about the incident.
There was no re-examination.

Evidence of Barbara Moyano

Ms Moyano gave evidence that she grew up in Brazil where she met the accused in 2017. After they had seen each other a few times, he relocated to Australia. She gave evidence that she arrived in Australia one year later in May 2018. They first lived in Mt Druitt and later moved to Waterloo. Five months after living together, the accused proposed to her and they married in November 2018.
Ms Moyano gave evidence that she moved out of the Waterloo apartment in March 2020. In May 2020 she was contacted by the complainant who sent her a message on Facebook Messenger. She identified the document containing those messages in Exhibit C.
In cross-examination, it was suggested to Ms Moyano that the reason she separated from the accused was because she had an affair with someone else. She denied that. It was further suggested to her that when she was in a relationship with the accused she was quite jealous, which she denied. She also denied that she wanted half of his assets following separation and that she was using his dog to “put some pressure on him”.
In re-examination, Ms Moyano gave evidence that she never asked the accused for money and that she had taken the dog from the police station and into her care whilst the accused was in “gaol”, meaning in police custody.

Evidence of Dr P Van Niewenhuijzen

Dr Van Niewenhuijzen prepared two reports. The first dated 14 July 2020 became Exhibit S and the second dated 8 June 2021 became Exhibit T.
She was cross-examined on those reports. She agreed that MDMA is a stimulant drug which makes you more awake and alert. It is extant in urine for up to a week after consumption. She agreed the effects of MDMA consumption are increased extroversion, emotional warmth and increased energy. She also agreed that in higher doses MDMA can lead to disorganised thoughts, paranoia and panic attacks.
Dr Van Niewenhuijzen gave further evidence that MDMA could lead to drug-induced psychosis at very high doses but it was more likely to happen with amphetamine or methamphetamine. She gave further evidence that consuming cannabis could lead to drug-induced psychosis such as paranoia and/or hallucination, depending on a person’s tolerance for the drug. She gave further evidence that mixing different drugs will enhance the negative effects of each individual drug.
Dr Van Niewenhuijzen was cross-examined about the effect of certain levels of alcohol in the blood causing a blackout as opposed to a pass-out. She gave the following evidence:

“A. So yes. So blackout has to do so the blackout has to do with memory formation. So when somebody has a blackout, they are still functioning but there's no memory being formed. So when you're undergoing a blackout, you're not aware of this and other people are not aware of it. It's only when you then question the person the following day, you know, they will be like, "Oh, I don't remember what happened", you know, "I remember having a drink and the next thing I remember, I was at home, I don't know what happened in between". So that's a blackout. When somebody passes out, it means they are actually unconscious. And obviously when you're unconscious, there's also no memory formation. But it is obvious to other people that they are passed out because they're difficult to arouse, you know, they're not responding.
So somebody who has a blackout is still able, you know, to answer questions and have a conversation, there's just no memory being formed. So there is that's the difference between blackout and passing out. Passing out often occurs at quite high blood alcohol levels, whereas blackout can occur at lower blood alcohol levels. And as with any drug, tolerance plays a big role. So somebody's experience with alcohol plays a big role to determine when that would happen. So somebody who has a lot of experience with alcohol would have these issues at much higher blood alcohol levels than somebody who's a novice drinker.”

Dr Van Niewenhuijzen agreed that in this case there was no toxicological evidence available at all. She then gave the following evidence:

“Q. If a person reports that they have no recollection of an incident, it is possible that they assumed that they were unconscious when in reality, they might have been conscious but have no memory of it. Is that correct?
A. That is correct, yes.
Q. When you refer to blackout, one can experience a total blackout which is a complete loss of memory for the entirety of the night, but they can also have a fragmentary blackout as they only have portions of the night missing in their memory. Correct?
A. That's correct, yes. So that's referred to as a grey out, so when you remember bits and pieces but not everything. And a blackout, you have no recollection and also, you're unable – so with grey outs, when a person experiences that, often if you put them back in a situation or remind them of certain things, their memory, it will come back. But with a blackout, the memory was just not formed. So it doesn't matter if you bring them back to the place where they were, they will not remember anything because it never was formed. So that's the main difference.”

Dr Van Niewenhuijzen distinguished the difference between a greyout and a blackout as follows:

“A. I don't know that. No. Different for me as a pharmacologist, the difference is that, you know, a person that is – has experienced grey outs they can sometimes still retrieve the memory because bits are there, and if you trigger them and put them in the same situation then memories come back. With a blackout it doesn't matter if you tell them exactly what happened, if you put them in the same situation the memory was never formed so there's nothing there that they can retrieve, that's my understanding.”

There was no re-examination.

Evidence of the accused

The accused gave evidence that he became a friend with the complainant in April 2020 via Facebook and communicated with her from 13 April 2020 until 13 May 2020. He gave evidence that he understood that there was a possibility that they could establish a relationship. He was asked:

“Q. What made you think that?
A. INTERPRETER: During our conversations there was quite a few emotional talks and we talked about various things, we talked about sex, and things like that.
…
Q. I want to ask you about a message which was received by [the complainant] and which stated, "I am touching myself". What can you tell the Court about that message?
A. INTERPRETER: What I can say about that message is that I was talking to another girl at the same time, and I ended up sending that message to her by accident. She received it, it was by accident, that was it.
Q. In your communication with [the complainant] have you ever sent her any photograph or messages that you would – inappropriate messages or photographs?
A. INTERPRETER: I never sent her any inappropriate photos or any inappropriate message.
Q. You told police in your interview, and I quote at answer 111, "I masturbated whilst she was talking to me". Can you explain what you were talking about?
A. INTERPRETER: Before 25 April 2020 we just had both contacted to check Messenger. No, that was not exactly what I wanted to say.
A. WITNESS: Okay. 22 April she called me from a phone number and she talk about sex with me.
A. On 22 April she called me by phone and talked to me about sex.”

The accused then gave the following evidence:

“Q. When you told police, "We talked about sex, she told me things and I masturbated while she talking to me", who were you referring to as she?
A. INTERPRETER: [The complainant]. On 22 April she called me and she was talking about sex with me.
…
Q. Did [the complainant] know that you were masturbating as you were talking to her on the telephone?
A. INTERPRETER: Of course she knew. She was also doing it, she was doing everything to attract me.”

The accused was asked about meeting the complainant on 25 April 2020. He gave the following evidence:

“Q. What was the purpose of meeting her that evening on 25 April 2020?
A. INTERPRETER: Because I wanted to meet her, to meet with her.
Q. What was your opinion of the reason for [the complainant] coming to your house?
A. INTERPRETER: I thought that we would have a romantic rendezvous and that we would have sex.
Q. What made you think that?
A. INTERPRETER: Because she always sort of talked to me about sex, she would send me sensual photos and including on that day that we were going to meet she sent me a photo of her in a bikini in the balcony.
Q. Are you referring to exhibit 4, that you have seen in Court, is that right?
A. INTERPRETER: Yes, exactly.”

The accused gave evidence that when he picked the complainant up from her home she was carrying two bottles of beer in her hands and had a bottle of wine in her bag. In the car, they spoke about his relationship with his ex-wife and she also spoke about “some difficulty she was going through”. He did not feel stressed in the car and gave evidence that he was not driving fast.
The accused gave evidence that at his apartment, the complainant ate some sushi. She drank the bottle of wine which she took from her bag, out of which he had one glass only. He thought she went to the bathroom after about an hour or an hour and a half and denied putting any drugs or MDMA into her glass of wine. He did not encourage her to drink wine by saying to her “drink, drink”.
The accused gave evidence that after about an hour they went to the balcony because he wanted to smoke a cigarette and the complainant smoked some marijuana. He shared the marijuana joint with her and gave evidence that he “sort of inhaled twice or three times”. He gave evidence that whilst they were smoking the joint “she kissed me on the mouth”. It was a tongue kiss and he responded.
The accused gave evidence that he was drinking beer before making a cocktail for them both. He gave the following evidence:

“Q. Did you have some MDMA on that night?
A. INTERPRETER: Yes, I was taking MDMA from eight and a sorry, half past 8.

Q246   Was there anything in particular, any - - -
A   No, she, she just start freaking out because she was drunk and I said, I just tried to control her, you know, like, Calm down, I have neighbours, you already see my, my apartment is, is, is a small apartment and that, we have families either side. Then… and I said, You’re being very annoying, I’m going to call Uber, and she said, No, I don’t need Uber, and I said, Just calm down, we’ll call, call Uber for you, you can have some rest and then tomorrow we talk again. And then… fuck you, all this for to me, and - - -
…
Q252   OK. Um, and at this point she had consumed, you said two bottles of wine?
A   Two bottles of wine, uh, uh, we drink almost a bottle of vodka with coke, caipirinhas and all those things, and, uh, uh, a bit, a bit of whisky and I had a little bit Compari as well, but I think she just tried but she didn’t have the Compari. Um, and, yeah, pretty much - - -“

The accused told police that after they left the balcony and went inside, the complainant acted aggressively. He then stated:

“A Uber came. She wants me to driver her to home, I said, I, I, drink too much, I can’t, I can’t, can’t take you home. And I ask Uber, I took her to the, to the, to the, to the, the, the Uber, I came down with her, I took her to the Uber, make sure she was safe, and then she go home. She arrive home and then she starts threaten me, saying a lot of things, like”

The accused was then asked:

“Q274   OK. Um, all right. And then, um, have you guys have any contact since that’s happened?
A   Um, no, no. We, we, we chat, we chat a lot, she kicked me the, the, I was trying to be her friend, I was trying to be with her because I fell in love for this woman.
Q275   Mmm.
A   And now she, the only thing she does is say, threat me and say a lot of things that never happen.
Q276   OK.
A   She said I abuse her sexually, I never touch her.”

In relation to the consumption of drugs, the accused was asked as follows:

“Q289   OK., all right. So at any point in time of the night is there any other, um, drugs that were consumed by either you or [the complainant]?
A   No, no drugs.
Q290   OK. Um, had you, had you taken any drugs that night prior to her arrival - - -
A   No.
Q291   - - - or you picking her up?
A   No.”

In relation to kissing, he was asked:

“Q292   OK. And just before we move on, the kissing, are you able to just tell me when abouts during the night that, um, you guys kissed?
A   Uh, we had a kiss, uh, just 1 hour and a half, 1 hour after she arrived.
Q293   Yeah.
A   And then maybe another hour had another one.
Q294   Yeah.
A   When we were dancing together and, yeah, I had 2 kisses, again.
Q295   Um, and how was her demeanour when you were kissing her? Did she seem to reciprocate?
A   Yeah, very reciprocate, was very intense kissing actually.
Q296   OK.
A   Yeah.
Q297   And whereabouts in the house were you?
A   Uh, the first one was in the living room - - -
Q298   Yeah.
A    - - - when she was there, and then after that in the balcony, another one.
Q299   So whereabouts in the living room?
A    The living room, on the sofa.”

The complainant’s allegations were put to the accused as follows:

“Q338   OK. So I’ll go into her allegation.
A   Yeah.
Q339   So, um, she’s alleging that at some point in that night that - - -
A   Uh-huh.
Q340   - - - you have given her some type of illegal drug. Is there anything you can tell me - - -
A   Uh-huh.
Q41   - - - about that?
A   That’s, that’s not true. She things that, why, why, why would she think that? Because she drinks too much. She drinks 2 bottles of wine, 1 bottle of vodka - - -
Q342   Yeah.
A   - - - and then she thinks she’s gunna be normal? That’s not true.
Q343   So at any point of that night was she given an illegal drug of - - -
A   No.
Q344   - - - some type?
A   Never.
…
Q349   OK. So the other allegation that she’s put forward is - - -
A   Yeah.
Q350   - - - this allegation of an attempt sexual assault. So the allegation she says is that at some point of the night, um, into the 26^th - - -
A   Yeah.
Q351   So we’re now the Sunday.
A   Yeah.
Q352   Um, at a time unknown to her - - -
A   Yeah.
Q353   - - - she was, lost some type of consciousness and - - -
A   Mmm.
Q354   - - - fallen asleep on the couch. What can you tell me about that?
A   No, she didn’t fall asleep on the couch, never.
Q355    OK.
A   Never happened, this never happened. We had no sexual contact.
Q356   OK. No sexual contact?
A   No.
Q357   Um, and so she’s alleged that when she’s woken up, um, her shirt was    risen and partia, and her, partial of her left breast was exposed.
A   No. Same thing, we didn’t have anything, nothing, nothing.
Q358   Yeah. So I’m gunna, I can, I’m just gunna tell you and then - - -
A   Yeah.
Q359   - - - yeah, you can, you just tell me what you - - -
A   Yeah, all right.
Q360   - - - um, believe. Um, she’s alleged that her pants were pulled down to midway past her thigh, so her vagina was ex, completely exposed.
A   No.
Q361   Can you tell me anything about that?
A   Not true.
Q362   Um, she’s also said that she could see that your pants were undone but still on. Is there anything you can tell me about that?
A   No.
Q363   Um, at any point in this night were you on top of her?
A   No. On top of her, no.
Q364   On top of her, so she’s laying down on the couch and - - -
A   No.
Q365   - - - you were on top of her?
A   No. We didn’t have any, like, sexual thing, nothing, nothing.
Q366   OK.
A   I could if her, because she could, she, she could stay at my place, but I didn’t want to, I sent her home.
Q367   OK. She’s also alleged that when you’ve kissed her, um, she’s pushed you away from the kissing. Is there anything you can tell me about that?
A   No. Make bullshit, she kiss me. That’s unbelievable that she say that.”

The accused was asked about a phone call with the complainant a few days before the ERISP. He was asked:

“Q373   Yeah. Is, you said that she spoke to you on the phone a few days ago.    Is there anything you can tell me about that?
A   Yeah, she called me, like, she said, If, if you tell me that you drugged me, nah nah nah, I will take to you again, nah nah nah nah nah nah. And then I call, I call her again, and then she said… you say… you say, and then I just want to see her then say whatever she wants to hear, and then here I am.
Q374   OK. So at any point in that conversation did she, um, talk about allegedly being sexually assaulted or drugged or - - -
A   Yeah, she - - -
Q375   …
A   - - - threatened me and I said, No, it didn’t do with you, what are you talking about?”

He was then asked about the pretext phone call which took place on 11 June 2020. He was asked about the allegation that he drugged the complainant and said:

“A   Yeah, I know. She, she, look, is that the first time she called me? She always called me and tried to say the same thing. I just want to know what she wants from me, if she wants, uh … for her and she stopped talking to me because that phone call was just not the first time. If you check the message, she, she saying more than a hundred message saying that I’ve drug her, and I said No, no, no, no. And then she called me another day and she said, Look, when you… that you drug me and you do, do this, all right, I will not, I’m gunna be your friend again. And I just say, in the last call, I told her, OK., I did it, all right. Honestly everything she wants to hear because I want to have friendship. But if you, if you go, if you see everything I talk, I talk to her, everything I spoke to her, I never did, I never say that. It’s just the last call. You gunna take this call, what about all the message that I have to her? She has accused me that I did the, I did sex, sexual, I… to her, she accuse me that I, I drug her, I say no a hundred times in the message, I say no a hundred times in the phone calls that she made, sometimes calling me in private number sometimes, she call me in unexpected times, all these things, I was just so done that I don’t know what to say. She’s tried to destroy my life.
Q400   Does she have your mobile number?
A   Yeah, she have.
Q401   OK.
A   She called me on mobile number.
Q402   So she used her mobile number and called your mobile number directly?
A   Uh, I don’t know if she use her mobile number but she called me on the private numbers as well.”

He was then advised that the pretext call on 11 June was lawfully recorded. A relevant part of the conversation was put to the accused as follows:

“Q431   And that’s when you’ve replied, this is, well, any MDMA – MDMA.
A   Mmm.
Q432   And she said, How much? And you said, I don’t know why I did it, I don’t know. I don’t know why I did it, I’m truly apologetic and we were in, and then she’s cut you off. Um are you able to tell me about that?
A   There was no drug. There was no drug, there, look, there was no drug. That’s what, what she was accusing me. And that, I just told, I just told her what she wants, there was no drug, I swear to God, do a drug test on me right now, you’re not going to find drug on me.
Q433   So in this conversation - - -
A   Yeah.
Q434   - - - you’ve asked her, Are you OK., and she says, No, to be honest. Well I’m fine but I’m still thinking about what happened last time.
A   Yeah.
Q435   You’ve directly gone straight in to saying MDMA, and that is the drug that she alleges you gave her - - -
A   That’s - - -
Q436   - - - that night.
A   That’s, look, everything you see in the message, you see what happened when it happened. I told her… I told her… about the message. If you check the message, the message on the Facebook, you’re gunna see every time she say that, every time she say that, You give me drug, you give me drug, you give me MD, you sexual assault, that’s bullshit, she got too drunk. And the, I did the right thing, I sent her home, and I, I didn’t help her any more because of all of what happened. And now she’s trying to somehow vengeance of me, for what? What have I Done? Nothing, nothing. I didn’t rape her, I didn’t, did nothing. That, that conversation, I know that you have the record, I know what I say in the record.”

He was then asked:

Q444   OK. So she says, You know, you know that at some stage I told you I had never used any drug, I never used any drug and you did it, and you replied, no, no, yes, I know, yes, I know. She said, I don’t even drink, I mean, I drink very little and you did it, you did that to me. It was very harmful because, and you replied, Yes. And then she says, Because I trusted you, you were going to rent a room to me, I needed to move out. I was feeling terrible and you, and then you’ve said, I know, she said, Now I would also love to know, I would love to know, Romolo, why, why at some point when I woke up and reacted I had my trousers and underwear down. And then some type of Portuguese said in there.
A   Yeah, no, it’s not, that, that - - -
Q445   Is, is there anything you can tell me about that?
A   - - - doesn’t happen, it doesn’t happen. She, she just wanted, look, she’s sent a thousand messages to it because she wants me to say those things. I just, she just put me in the situation where I said, because I want, I want to see her again.
Q446   Mmm.
A   I didn’t, did nothing to her, I didn’t.
Q447   So she’s, she’s then replied back, That is not true.
A   Yeah.
Q448   And you replied back, I didn’t do anything with you, I didn’t do anything with you, OK. She’s then said, Did you pull my trousers down and my knickers and my underwear? And you replied, Look, look, look, look, I didn’t do anything with you. She’s then said, But tell me, did you pull my knickers and underwear, I mean, the trousers and underwear? And you’ve replied, Oh, well, we were, and then she replied, I am not sure, perhaps you were too excited or I don’t know but I only, look, I want to, and then you replied back, um, I, and then she said, um, Look, I want you to tell me the truth, and you replied back, I didn’t do anything with you, I didn’t do anything with you.
A   But - - -
Q449   Um, what - - -
A   - - - that’s it.
Q450    - - - can you tell me about that?
A   That’s it, that’s it. That, again, she wants me to say those things to her and then she wants, I don’t know, it was so weird. At, at the same time I, I want to say what she wants to hear and, and, the other time, I, that, that’s so weird. I felt, I, I was thinking she was bi, bipolar or something, you know. And the, I, I just want to, a chance to have a, a chat with her and know what kind of person she was. Well.”

The accused was then asked whether, in the Facebook messages they exchanged after 25 April 2020, the complainant had alleged that he tried to assault her sexually “or anything like that”. He told investigating police to check his Facebook account and said:

“A   I don’t know if she exclude anything but if you check my message I didn’t exclude. If you check my message you will see, many times she ask me if I did anything, I say, No, no, I, I haven’t do anything to you. I haven’t drugged you, I haven’t raped you, I haven’t doing anything to you. I didn’t touch her.
Q464   So you deny those allegations that - - -
A   I, of course I deny, I didn’t - - -
Q465   …putting to you in relation to it?
A   - - - touch her. There is no drug, nothing, we just have alcohol, a date, and then we had this problem at the end of the night. I sent her home and then of course she knew that I would not give the, free any more. She got upset and then, I tried to talk to her and understand her and then she, Ah, stop talking to me, nah nah nah nah nah nah nah nah nah, that’s OK. And then she came again… you drug me and you did this… and then I, I think she was trying to get something from me, I had nothing to give her. I loved her, the, like.”

The accused was asked whether he showed the complainant a satchel bag with contained a small plastic resealable bag, which he denied.
He was asked:

“Q476   Um, [the complainant] alleged that you produced a clear resealable plastic bag which had some smiley faces on that bag, and showed her that bag and referred to the name of the drug inside that bag as - - -
A   All right.
Q477   MDMA.
Q478   Is there anything you can tell me - - -
A   No.
Q479   - - - about that?
A   Not true.”

The accused was asked why, in the pretext call, he only said things that the complainant wanted to hear. He responded that he did so in order to see her again. He was asked:

“Q485   Why would you want to see her - - -
A   Because - - -
Q486   - - - again?
A   - - - I’m so stupid, I know. I, I’m feeling so without confidence right now because, uh, I lost my, my wife that was a person that I loved, and I found out that she was having an affair with another person. And I was feel, I was feeling to insecure, like an even with this girl there was, look like a dangerous girl for me, it would be so nice to be with someone like her because she’s beauty, she’s and was, like, she’s… you know. And, uh, yeah, maybe that’s self destructive, I don’t know, but I should, I should, I should be more smart with those things but I’m not, unfortunately.”

The accused was asked about his statement to the complainant in the pretext call to the effect that he provided her with MDMA. He said:

“A That’s all. That’s… all she wants to hear. If you see the chat that’s all she asked, she asked me to say. She was using me.”

The accused was asked about the Facebook messages in which the complainant often asked what he gave her and how much. He answered:

“A   That’s what she said. She drink too much, yeah.
She told me. If you, if you look, if you look, if you look she, she told me many times, You drugged me, tell me that you drugged me, tell me… I, I just told her in the last conversation, but if you see I, I have said a thousand times on the other message, I haven’t drug you, I haven’t did anything. Why are you do that to me? Why are you, are you try to destroy my life, what are you doing? I was trying to understand her, maybe it was just a, a, uh, a way, like, she was… or maybe… she was trying to… some other problems that she had, I don’t know. But I, but I have not touched her, I have not drugged her. We just had a date, a normal date. She came to my place with free will and I, I, I, I, I made sure that she came back home safely without harm.
Q519   So at any point in the time of the night did you take MDMA that night?
A   No, no drugs. You can drug test with doctors if you want, no drugs.”

At the conclusion of the interview, the accused confirmed to the “independent officer”, Sergeant Hill, that he had taken part in the interview of his own free will and that no threat, promise or inducement had been held out to him to give the answers recorded in the interview.
The accused was cross-examined about many, if not all, of the above answers, a number of which were demonstrated to be false. For example, his denial that the complainant had been given any illegal drug, his statement that there was no drug involved and that he did not show her a satchel bag which contained a small resealable bag and that he did not drug her. These answers clearly reflect adversely on the credit of the accused.

The accused’s evidence generally

In addition to the above lies, I take into account the following matters in assessing the accused’s evidence generally:

The objective analysis of the Facebook messages set out above;

The admissions he made during the pretext call on 11 June 2020;

His claim to have been induced into his ERISP interview by the OIC.

It should be noted that there was no objection to the ERISP being adduced into evidence on the basis that it was improperly obtained. Leaving aside the OIC’s denial of any conversation of inducement, it could not be borne out in any event given the accused’s agreement, twice during the interview, that no promise, threat or inducement had been held out for him, together with his demeanour during that interview;

His evidence that the complainant “always” talked to him about sex was not borne out by the evidence. It was a lie, and by saying that he “just generalised it” was an attempt by the accused to deflect blame from himself;

There was no evidence supporting any phone call from the complainant to the accused on 22 April 2020, where he alleged she was talking about sex with him and they engaged in mutual masturbation;

There was no reasonable basis for him believing on 25 April 2020 that they would have sex when they met. On the contrary, the complainant had been frank in telling him from the outset that that would not happen. I am satisfied that the lies told by the accused were all related to issues relevant to the three offences alleged against him.

I therefore find that the accused was not a witness of truth, and that his evidence lacked credibility and was generally unreliable. I further find that his evidence was generally tailored to meet the Crown case being brought against him and was designed to shift focus from the allegations made against him to the complainant herself. For example, his evidence concerning the amount of alcohol consumed by the complainant, her consumption of a joint of marijuana, her “provocation” of him by sending a photo of herself sunbaking in a bikini, his contention that she performed a lap dance during the evening, his description of her to police as being “bipolar” and his contention that she “forced” him to admit the use of MDMA when clearly he had admitted that to her on the evening in question. Also relevant was his failure to, at any time, say to the complainant or the police that he put the MDMA in his own glass and that she accidentally consumed it. Nor could his conduct be explained by his contention that he was falling in love with the complainant, that they parted as friends in the early hours of 26 April 2020 and that he wanted a continuing relationship with her.
For all of the above reasons, I find the accused’s version of what occurred on 25 and 26 April was implausible. I do not accept the accused as a witness of truth or that his evidence is credible or reliable unless supported by other objective evidence. For that reason, in accordance with the Liberato direction I have given myself, I put the accused’s evidence to one side. The question therefore remains, has the Crown, on the basis of evidence that I do accept, proved the accused’s guilt beyond reasonable doubt?

Findings of fact

I make the following findings of fact.
As set out above in respect of Exhibit M, I find that it was the accused who made contact through Facebook with the complainant and once that contact was accepted on 13 April 2020, the accused was the persistent driver of their communications which became a barrage of messaging. It was the accused who initiated talk about sex in the first instance and the accused sent the complainant on a message 16 April 2020 with sexual connotations, namely “I’m touching myself” and deleted it. Given there is no evidence of the accused messaging any other person at that time, it is difficult to accept his explanation that the message was directed to another girl. This is particularly so in light of his insistence to the complainant that he was only talking to her on Facebook at the time and his message denying that he was talking to another girl. In addition, the complainant clearly told him in unambiguous terms that she would not have sex with him and that she did not engage in online sex.
I find that the complainant blocked the accused on Facebook on 22 April until 25 April 2020. I further find that the accused’s evidence that on 22 April 2020 the complainant called him and was talking about sex with him during which call they engaged in mutual masturbation was untruthful. It is completely at odds with the Facebook messaging which occurred between the complainant and the accused on that day and I find it is unsupported by the objective evidence in Exhibits V and W.
I find that it was the complainant who contacted the accused on 25 April 2020 asking whether he knew of a doctor as she was feeling unwell. That led to the arrangement for him to pick her up that evening and for her to forward to him the photo in Exhibit 4.
I do not accept the accused’s evidence that the complainant was carrying two bottles of beer and had a bottle of wine in her bag, which she consumed upon arrival at his apartment. Whilst the complainant may have been mistaken about the size of the bag she was carrying on that night, that does not establish the contents of the bag. Rather, I find that the accused overstated her consumption of alcohol both to the police and in his evidence so as to cast doubt on the complainant’s version of events.
I find that following arrival at the accused’s apartment in Waterloo, he provided her with a glass of wine which he re-filled when she went to the bathroom. I further find that the accused consumed alcohol combined with MDMA throughout the night, as he admitted in his evidence and as confirmed in his message to Mr Guilherme the next day, i.e. “lots of drugs yesterday.”
I also find that he provided her with a caipirinha at approximately 10pm that evening and that he himself had a caipirinha.
I find that the complainant became unwell and at some time before 2:25am, she went to the bathroom in the accused’s apartment and observed her eyes to be dilated. Following that, I find that the complainant confronted the accused and he admitted that he had placed MDMA in her drink. At 2:25am on 26 April 2020, the complainant responded to an earlier message she had received from Luis Rozas, during which she told Mr Rozas that she had been drugged on purpose, that the drug had been put in her wine, that she realised straight away and went to the toilet where her pupils had dilated. At 3:02am she told Mr Rozas that it was MDMA which she had been given. She later told Mr Rozas that the drug had been mixed with alcohol.
I find that the complainant passed out or lost consciousness in the early hours of the morning between 3:03am and approximately 4:00am on 26 April 2020 at the accused’s apartment. I further find that when she awoke the accused was on top of her and that her jeans and underwear had been pulled down to her thighs and her vagina was exposed. I also find that her top had been pulled up and her chest exposed. I further find that the accused was wearing jeans and the zipper was undone.
Later that day she had a further conversation by message with Mr Rozas in which he advised her to go to the hospital so she could be tested, to which she replied, “I want to, but I think it will be expensive for me.”
I find that the complainant engaged in the Facebook messages with the accused after 26 April for the purpose of getting him to admit in writing that he had put MDMA in her drink. At no time did he do so, rather, he deflected the assertion for various reasons. At no time did he suggest that the MDMA was placed in his own drink and that she accidentally consumed it.
I find the accused made admissions in the pretext call on 11 June 2020 as to the use of MDMA, and again at no time did he suggest that he had placed the drug in his own drink and that she had accidentally consumed it.
I find the complaints made by the complainant to Luis Rozas and, to a lesser extent, to Barbara Moyano, lend support to the complainant’s version as to what occurred at the accused’s apartment on 25 and 26 April 2020.
Having regard to the whole of the evidence, I find that the accused placed MDMA in the complainant’s drink on the evening of 25 April 2020. I find that the MDMA was placed in her glass of red wine after they arrived at the accused’s apartment, some time after 8:00pm. That is what the accused told the complainant in the early hours of the morning of 26 April, and that is what she reported to Luis Rozas that morning. I find that the accused’s evidence that he placed his MDMA in the caipirinha he prepared for himself, and subsequently left that caipirinha on the balcony with the complainant whilst he went inside and showered, and that she, having finished her own drink then consumed his, was implausible evidence fabricated to exculpate him from any wrongdoing. I therefore find it was not a reasonable explanation consistent with his innocence of the alleged offences. Moreover, I reject the submission made on behalf of the accused that he consistently denied the allegation in all of the communications he had with the complainant following the incident until 13 May 2020 and in the pretext phone call on 11 June 2020.
Whilst the accused may have had a reason for lying to police in order to avoid a criminal conviction resulting in deportation from Australia, I reject the submission made on his behalf that that was a valid reason to lie. Rather, the real reason for his lies to police was to avoid implication in the alleged offending. As outlined above, a number of those lies were relevant to the alleged offending, amounting to a complete denial thereof and I find were made because he feared that telling the truth would reveal his guilt in respect of the offences.
The act or acts relied on by the Crown to establish the offence in Count 3 are found in the evidence of the complainant, namely, that she woke to find the accused on top or in front of her and that he was pulling down her jeans and underwear which were halfway down her thighs. Her blouse was also pulled up and her chest was exposed. The Crown case is that those acts were immediately connected with the commission of a crime, namely, sexual intercourse without consent knowing that she was not consenting, and that they cannot be regarded as having any other purpose. I accept the complainant’s evidence that those acts occurred.

Determination

Count 1 on the Indictment alleged an offence under s 38(a) of the Crimes Act 1900. Section 38 provides as follows:

38 Using intoxicating substance to commit an indictable offence
A person who –
(a) administers an intoxicating substance to another person, or
(b) causes another person to take an intoxicating substance,
With intent to enable himself or herself, or to assist a third person, to commit an indictable offence is guilty of an offence.

Whilst Count 1 clearly avers to an offence pursuant to s 38(a), i.e. “administers”, in its final address the Crown disavowed a case of “administering” but instead relied on the accused “causing” the complainant to take the drug MDMA, relying on the extended definition of “causing another to take” in s 4(7) of the Crimes Act. Nothing turned on this, given counsel for the accused conceded that there was no issue that the complainant was administered MDMA. Nor was there any issue that MDMA is an intoxicating substance. I find that the first element of Count 1 is established beyond reasonable doubt.

The real issue in respect of Count 1 was whether the accused administered MDMA to the complainant with intent to enable himself to commit an indictable offence, namely, assault.
Intention may be inferred or deduced from the circumstances in which the intoxicating substance was administered, and from the conduct of the accused before, at the time of, and after he administered it. Whatever a person says about his or her intention may also be looked at for the purpose of finding out what that intention was in fact at the relevant time. I also take into account that a person’s acts may themselves provide the most convincing evidence of his or her intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and where he or she deliberately does that act, I may readily conclude that he or she did that act with the intention of achieving the specific result.
The consumption by the accused on the night in question of MDMA and alcohol, and his subsequent level of intoxication, is a relevant matter to take into account in determining whether he formed the relevant intention to commit the offence. I am not satisfied on the evidence here that the accused was intoxicated to the extent that he was incapable of forming any particular intention at all.
I am satisfied beyond reasonable doubt that the accused administered the MDMA to the complainant by placing it in her drink so as to lower her resistance to his advances towards her and to render her more amenable to those advances. This is both the obvious and inevitable consequence of the accused’s act. His later confirmation by Facebook message that they kissed and his admission in the pretext call lend support to that conclusion. So does the accused’s first answer to the complainant when she asked what drug he gave her, being “amor”, meaning “love”. I accept the Crown submission that the offence was complete at the time the accused drugged the complainant and that the drug was administered in order to overpower her resistance to him and allow him to engage in sexual acts with her. The later acts said to be done by the complainant are proof of that state of mind.
I am therefore satisfied that the elements of the offence in Count 1 have been established beyond reasonable doubt and there will be a verdict of Guilty on Count 1.
Count 2 was an alleged offence pursuant to s 61KC(a) of the Crimes Act 1900. The elements of the offence are, first, that the accused sexually touched the complainant without her consent (by kissing her), and secondly that the accused knew at the time that she was not consenting to the sexual touching.
The accused’s case is that kissing occurred between him and the complainant, that it occurred on at least two occasions and that it was consensual.
The onus is on the Crown to prove beyond reasonable doubt that the complainant did not consent to the kissing. Such consent must be given freely and voluntarily. I accept the complainant’s evidence that when the accused kissed her she pushed him away and went to the bathroom. I further accept her evidence that upon her return from the bathroom, the accused made a second attempt to kiss her and in response she confronted him about having drugged her, having noticed her pupils were dilated whilst in the bathroom. In the circumstances, where the accused had intentionally administered an intoxicating substance to the complainant so as to lower her resistance towards him, I find that the Crown has established the first element, namely, that he sexually touched her without her consent, which in the circumstances was not given freely and voluntarily. Further, given those circumstances, I am satisfied the Crown has established beyond reasonable doubt the second element, namely, that the accused knew at the time of the first kiss that she was not consenting to it.
I am therefore satisfied that the elements of Count 2 on the Indictment have been made out and there will be a verdict of Guilty on that count.
Count 3 on the Indictment alleges an offence against s 61I of the Crimes Act 1900 in that the accused did attempt to have sexual intercourse with the complainant without her consent and knowing that she had not consented to the sexual intercourse.
The Crown must prove beyond reasonable doubt that the accused intended to have sexual intercourse with the complainant without her consent and knowing that she was not consenting. The Crown must also prove beyond reasonable doubt that the accused, with that intention, did some act towards committing the intended crime which was immediately connected with the commission of that crime and which cannot have any other reasonable purpose other than the commission of the crime.
I have accepted the complainant’s evidence that she passed out or lost consciousness in the early hours of the morning of 26 April 2020 at the accused’s apartment. I also have accepted her evidence that when she awoke the accused was on top of her and that her jeans and underwear had been pulled down to her thighs and her vagina exposed. I also accept that her chest had been exposed by virtue of the accused pulling up her blouse. These acts of the accused were not merely preparatory acts towards committing a crime. They are immediately connected to the commission of a sexual assault and could not reasonably be regarded as having any other purpose than the commission of that crime. I am satisfied beyond reasonable doubt that the evidence establishes that the accused had the requisite intention to commit the indictable offence. Again, in the circumstances, the Crown has established that such an offence was without the complainant’s consent and the accused knew that she had not consented to sexual intercourse. I am therefore satisfied that the elements of the offence in Count 3 had been made out and the accused did attempt to have sexual intercourse without her consent and knowing that she had not consented to it.
The accused’s reliance on the evidence in the CCTV footage (Ex G and Ex P) that he was wearing shorts at the time the complainant left his apartment after 4:30am casts little doubt on the complainant’s evidence. Rather, he had ample opportunity to change from the jeans he was wearing when he arrived at the apartment at 8:05pm, after the complainant removed herself to the bathroom for an unspecified period of time before she left.
I am therefore satisfied that the elements of Count 3 are established beyond reasonable doubt and there will be a verdict of Guilty on that count.
Having regard to the whole of the evidence and the facts as I have found them, I am not satisfied that there is any reasonable conclusion, or inference, reasonably open that is consistent with the innocence of the accused on any of the three counts on the Indictment.

Verdicts

There will be a verdict of Guilty to Count 1 on the Indictment, namely that between the 25^th day of April 2020 and the 26^th day of April 2020, at Waterloo in the State of New South Wales, the accused did administer an intoxicating substance to another person with the intent to enable himself to commit an indictable offence, namely, assault.
There will be a verdict of Guilty to Count 2 on the Indictment, namely, that on the 26^th day of April 2020, at Waterloo in the State of New South Wales, the accused did intentionally sexually touch SS without her consent.
There will be a verdict of Guilty to Count 3 on the Indictment, namely, that on the 26^th day of April 2020, at Waterloo in the State of New South Wales, the accused did attempt to have sexual intercourse with SS, without her consent and knowing that SS had not consented to the sexual intercourse.

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Amendments

20 August 2021 - Inclusion of publication restriction

Decision last updated: 20 August 2021

Medium Neutral Citation:	R v Mercuri De Figueiredo [2021] NSWDC 424
Hearing dates:	27 July 2021 – 10 August 2021
Decision date:	20 August 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Verdict of Guilty to Counts 1, 2 and 3.
Catchwords:	CRIME – judgment – use intoxicating substance to commit indictable offence – sexually touch another person without consent – attempted sexual intercourse without consent
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Law Enforcement (Power and Responsibilities) Act 2002 (NSW)
Cases Cited:	Davey v Lee [1968] 1 QB 366
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Romolo Giuseppe Mercuri De Figueiredo (Accused)
Representation:	Counsel: A Hughes (Crown) J Ellis (Accused)
File Number(s):	2020/00177851
Publication restriction:	s 578A of the Crimes Act 1900 applies so as to prohibit the publication of any material which may identify the complainant in the proceedings