R v Murphy

Case •

[2024] NSWDC 404

•

06 September 2024

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Murphy [2024] NSWDC 404
Hearing dates: 16, 19, 20, 21, 22, 23, 26, 27 August 2024
Date of orders: 06 September 2024
Decision date: 06 September 2024
Jurisdiction:Criminal
Before: Anderson SC DCJ
Decision:

Mr Murphy is guilty of the offence of having sexual intercourse with the complainant without her consent pursuant to s 61I of the Crimes Act 1900

Catchwords:

CRIMINAL LAW – judge alone trial – DNA evidence – circumstantial case – reasonable hypothesis consistent with innocence – expert evidence

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Cases Cited:

Liberato v The Queen (1985) 159 CLR 507

Shepherd v The Queen [1990] 170 CLR 573

Category:Principal judgment
Parties: Director of Public Prosecution (NSW) (Crown)
Shannon Adrian Murphy (Accused)
Representation:

Counsel:
Mr I Todd (Crown)
Ms E Scoufis (Defendant)

Solicitors:
Director of Public Prosecution (NSW) (Crown)
Hamilton Janke (Defendant)
File Number(s): 2022/00302845

JUDGMENT

  1. Sometime between 3.41am and 3.57am on 2 May 2012 the complainant in these proceedings was sexually assaulted in Civic Park, Newcastle.  The question before the Court is whether the accused is responsible for that assault. 

  2. There is no doubt in my mind that the complainant in this matter was sexually assaulted. While there are aspects of her evidence which are contradicted by the evidence of other witnesses or objective evidence, I found her evidence to be highly credible when it came to the description of the attack notwithstanding that it occurred over 12 years ago.  The complainant gave her evidence in Court, not in a remote witness room, and she gave her evidence without embellishment but rather with a sense of embarrassment and shame, two feelings she should not have.

  3. To maintain the privacy of the complainants in sexual assault trials, they are referred to as either complainants or, if their evidence is accepted, as victims.  By convention the accused is simply referred to as the accused.  To further protect the anonymity of the complainant and her family, I will refer to other lay witness in this matter by their initials.

Key issue

  1. Unusually for a sexual assault trial, the central issue in this case is not whether a sexual assault occurred, or how it occurred, but rather whether the Crown is prosecuting the correct accused. 

  2. By virtue of an application brought by the accused, opposed by the Crown, orders were made under s 132(2) of the Criminal Procedure Act1986 (NSW) (“CPA”) on 16 August 2024 for the trial to proceed as a judge alone trial. Accordingly, I am both the tribunal of fact and the tribunal of law. Section 133 of the CPA requires a judge conducting a judge alone trial to include in a judgment the principles of law to be applied and the findings of fact upon which the judge relies.

  3. Section 133(2) of the CPA is not satisfied merely by a bare statement of principles of law that the judge has applied, and a recital of the findings of the fact the judge has made. There must be exposed the reasoning process, linking them and justifying them and later, ultimately, the verdict that is reached. Whilst it is not necessary for a trial judge to refer to every piece of evidence led in the proceedings; it is essential to expose the reasoning on a point critical to the contest between the parties. To meet that standard, I will ultimately to into some detail in explaining my conclusion.

  4. Pursuant to s 133(3) of the CPA, I am required to consider any warning required by any Act or law to be given to a jury in such a case. In this trial, the parties have agreed that I should direct myself in accordance with the directions document which was settled between the parties with their assistance. This judgment should clearly be understood in the context of those written directions, which I will incorporate into the written version of this judgment.

Background

  1. The accused is before the Court in relation to a single charge. The charge is brought pursuant to s 61J(1)(a) of the Crimes Act, being that:

  1. On 3 May 2012 in Newcastle in the State of New South Wales the accused had sexual intercourse with the complainant, without her consent, and knowing that she did not consent to the sexual intercourse in circumstances of aggravation, namely, at the time of or immediately before the commission of the offence, the accused did recklessly inflict actual bodily harm on her.

  1. The Crown also relies on the statutory alternative to that charge, being that the accused is guilty of the offence of sexual intercourse without consent, an offence under s 61I of the Crimes Act, that is, without the element of aggravation.  The accused was arraigned on Monday 19 August 2024 and pleaded not guilty.  That plea also applies to the statutory alternative. 

Directions of Law

Onus and Standard of Proof and the Presumption of Innocence

  1. This is a criminal trial and the burden of proving the guilt of the accused rests firmly and only on the Crown. That onus is in respect of every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt in relation to the count on the indictment and to prove it beyond reasonable doubt. That is a very high standard of proof for the Crown to achieve.

  2. The words "beyond reasonable doubt" are to be given their ordinary English meaning. People who are tried in our Courts are presumed to be innocent unless and until they are proven guilty by the Crown, beyond reasonable doubt. Expressed differently, I must consider whether there is any reasonable possibility that the accused is not guilty. If the answer is yes, then the verdict is not guilty, if the answer is no, the verdict is guilty. That said, whilst the onus of proof is on the Crown to prove the guilt of the accused beyond reasonable doubt, that does not mean that the Crown has to prove every single fact or issue beyond reasonable doubt. The onus is on the Crown to prove the elements of each offence beyond reasonable doubt. I am conscious in directing myself in these terms of the elements of the alleged offences.

Assessment of evidence

  1. In determining the facts, I must act rationally. I must determine the facts based on the evidence given by the witnesses and the evidence contained in the documents and other items that have been tendered as exhibits. Considerations of emotion and prejudice must play no part in my deliberations. I must give true verdicts in accordance with the evidence. I remind myself that evidence is a combination of the question asked and answer given, not the question. The Crown does not need to prove every fact alleged in its case beyond a reasonable doubt, but rather it must prove the elements of the offences beyond a reasonable doubt.

  2. I may believe the whole of what a witness says, I may disbelieve the whole of what a witness says, or I may believe one part and disbelieve another part of a witness' evidence. Each witness has given evidence about things they said they have remembered. How well a person might remember something depends upon many different factors including that person's capacity to lay down an accurate memory in the first place, their capacity to retain that memory and its associated detail, and their capacity to recall the memory and articulate it.

  3. The subject matter of an event is also a relevant factor when considering memory. Some events themselves are of little or no consequence and memory of those events may be retained for a short time only and then gone. Other events are of greater importance in consequence such that one might remember it for a relatively long time, although perhaps over time aspects of the detail of the memory or the parts one considers to be of no real consequence might fade.

  4. All these common-sense factors might impact on what someone might be able to remember of an event or how clearly, they might remember it. What I must decide in relation to the evidence of a particular witness is whether I consider their evidence to be sufficiently reliable such that I can act upon it. Reliability depends upon two quite different but overlapping factors. One factor is the witness' honesty and the other is the witness' accuracy. There are many factors which can have a bearing upon a witness' honesty. If I conclude that a particular witness has been doing his or her best to be honest, I will need to move to the second aspect of reliability which relates to a witness' accuracy. A witness can be perfectly honest and accurate. Or perfectly honest, yet completely or partly inaccurate. There are many factors which can have a bearing upon the accuracy of a witness' evidence.

Right to silence

  1. The accused was offered the opportunity to participate in an interview with police when he was arrested on 11 October 2022 but, as was his right, he chose not to do so. All people in this country have a right to silence. Ultimately the accused gave evidence during the trial and I will deal with the significance of that in a separate direction. The fact that the accused gave evidence does not shift the burden of proof.

Inferences

  1. As this is a case which involves circumstantial evidence, I must direct myself in terms of the inferences which can be drawn from the available direct evidence. Inferences are conclusions of fact rationally drawn from a combination of proved facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.

  2. In a criminal trial, I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference and I should examine any possible inference to ensure that it is a justifiable inference. I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. In this case, the Crown asks the Court to draw an inference that the accused was the person who sexually assaulted the complainant because his DNA was found on the complainant's neck, as well as cigarette butts found where the sexual assault is said to have occurred. Two of those cigarette butts also had the complainant's DNA on them. The Crown also relies on the accused leaving Fanny’s Tavern (“Fanny’s”) within a minute or so of the complainant, the absence of evidence they interacted at Fanny’s, the fact that the accused was a cigarette smoker and the description the complainant gave of her attacker.

Circumstantial case

  1. In this case, the Crown relies largely on "circumstantial evidence" with respect to the accused being the person who sexually assaulted the complainant. In relying upon circumstantial evidence, the Crown asks the Court to find certain basic facts and then from those facts to draw a conclusion as to the existence of a further fact, being that it was the accused who sexually assaulted the complainant.

  2. Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do the act which the Crown says constitutes the crime charged. It may be a video recording showing an accused person committing an act that the Crown relies upon as part of its case, or it can be evidence from a witness that he or she heard an accused person admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it can prove the guilt of the accused.

  3. In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Typically, in a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown's case depends either wholly or in part on circumstantial evidence, then the tribunal of fact is asked to reason in a staged approach. Firstly, the Crown asks the tribunal of fact to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused.

  4. With those discrete pieces of evidence, the Crown relies upon, I am asked to infer or conclude that further facts existed, namely, that the presence of the accused's DNA on the neck of the complainant is consistent with both the complainant's allegation of how she was attacked and the accused being the attacker. The presence of both the complainant and accused's DNA on the two cigarette butts is relied upon by the Crown as evidence of the accused being the complainant's attacker and the cigarette butt with the accused's DNA is consistent with his presence at the park.

  5. The ultimate fact the Crown asks me to find, based upon that evidence is that the accused person is the person who sexually assaulted the complainant. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that in approaching the circumstantial case I consider and weigh the evidence as a whole. It is wrong to consider any fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused's guilt.

  6. The correct approach is first to determine what facts I find established by the evidence. No particular fact needs to be proved beyond reasonable doubt. When I consider all those facts together, I must ask myself whether I can conclude from those facts that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt and I must find the accused not guilty.

  7. But if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused's guilt. I understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition.

Complaint evidence

  1. The Crown relies on two pieces of complaint evidence. The first is the evidence of the complainant's boyfriend, now husband, who I will refer to as "MS". His evidence was given via his contemporaneous police statement, which was tendered during the trial by consent. He was not cross-examined. The complaint evidence in summary is that at 3.41am the complainant had been with her friends LS and SH at Civic Park. There was two men with them and that SH and LS went home with those men. The complainant stayed at the park and was going to get a taxi. At 3.57am, MS received a call from the complainant and had a conversation which I will set out in full in my evidence summary, but the complainant stated she needed him because, "A guy has scared me. I really need you".

  2. The complainant said, "Someone raped me" and "Some guy has followed me and scared me and I am hiding in a tree". MS and his family drove to Newcastle's Civic Park where the complainant was hiding, while his mother contacted the police. During this call, MS told the complainant not to move, then the complainant said, "Oh my god, is that ambulance for me?" Then she asked, "Is that cop car for me?" Upon arrival at the scene, MS observed the complainant to be surrounded by ambulance and police officers. MS asked the complainant, "Are you okay. Did he hurt you?" to which the complainant responded "I'm okay. It only went in a little bit". MS's father then drove the complainant to the hospital in the car with his mother and sister. Just prior to leaving the hospital, the complainant said to MS, "I'm supposed to enjoy it. It isn't supposed to be painful. He forced it in. He moved a little bit. I then kicked him off. It was really small. He put his disgusting bits near me. It's not supposed to be like that".

  3. The second piece of complaint evidence is paragraphs 7 to 10 of the statement of Dr Hamilton, which is Exhibit 16. I note that this statement was tendered without objection and is admissible via s 65(2) of the Evidence Act 1995.

  4. If I accept the evidence from the complaint witnesses, I can use it in two ways. Firstly, it can be regarded as additional evidence the complainant was assaulted in the way she described. So, not only would I have the complainant's evidence about being assaulted by the accused, I would also have the description of the assault that was given to Dr Hamilton and MS. The second way the evidence of complaint may be used is that it can be relevant to the truthfulness of the complainant's evidence in court. The Crown says the fact the complainant complained to MS and Dr Hamilton shortly after the attack, makes it more likely the complainant is telling the truth about the sexual assault.

Section 293A Criminal Procedure Act

  1. The accused's case is that the complainant had gaps in the account she gave of the assault and that there were differences and inconsistencies between other witness's accounts, specifically, SH, LS, MS and Dr Hamilton with respect to who was at Civic Park with her and what they were doing prior to her alleged attack.

  2. Experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that sometimes there are differences in an account of a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences. It is a matter for me as the tribunal of fact to decide whether or not any differences in the complainant's account are important in assessing their truthfulness and reliability.

Liberato direction

  1. The accused gave evidence at the trial. I will assess his evidence in the same manner I assess any other witness. If I accept the accused's evidence that he did not sexually assault the complainant, then I must acquit him. Even If I have difficulty in accepting the accused's evidence but it gives rise to a reasonable doubt that it might be true, then I must acquit him. If I do not believe the accused's evidence then I will simply put it to one side because the question remains: has the Crown, upon the basis of evidence that I do accept, proved the accused's guilt beyond reasonable doubt?

Directions in ss 292-292E Criminal Procedure Act 1986

  1. The Court recognises that these directions potentially apply to these proceedings, but given the facts in issue, they are not relevant.

Limit on the use of terminology: s 136 Evidence Act

  1. Exhibit 8 is a statement from Senior Constable Lee Whiting. At paragraph 31 it uses terminology such as "abrasion", "bruise" and "bruising." Those terms are understood to be used as descriptions given by a lay person and do not have the meaning they would have had they been used by an expert medical witness.

Evidence given remotely

  1. As is routinely the case in 2024, several witnesses - but not the complainant - gave their evidence via AVL. With one exception, those witnesses were professional witnesses in the sense that they were either experts or current or former police officers. Orders were made allowing this under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998. The fact that the evidence was given in this way does not add or detract from its cogency and I am to treat as I would as if it was given in Court.

Expert evidence

  1. In this case, there was expert evidence called by both parties concerning DNA and in the accused's case, a bite mark. An expert witness is a person who has specialised knowledge based on their training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions.

  2. The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness's specialised knowledge.

  3. Expert evidence is admitted to provide the Court with scientific information and an opinion on a particular topic which is within the witness's expertise, but which is likely to be outside the experience and knowledge of the average lay person. The expert evidence is before me as part of all the evidence in the Crown case dealing with the central issue in dispute, namely whether the accused had sexual intercourse with the complainant. I will bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the expert, I do not have to act upon it.

Witnesses not called by the Crown

  1. Where a witness who might have been expected to be called and to give evidence on a matter is not called by the prosecution, the question is not whether the tribunal of fact may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. I can take the fact that there was no evidence from certain potential witnesses into account when I decide whether the Crown has proved the guilt of the accused. I cannot speculate as to what they may have said had they been called. But in a criminal trial, where the Crown must prove that the accused is guilty beyond reasonable doubt, I am entitled to consider that there was no evidence from particular persons in deciding whether or not there is a reasonable doubt about the accused's guilt.

  2. In this case, those witnesses are:

  1. The complainant's mother, JS:

  1. Attended the hospital with the complainant;

  2. According to SC Whiting's unchallenged evidence, she was the person holding the ruler when SC Whiting took photographs of the complainant's injuries.

  3. She was a witness to the conversation that passed between SC Whiting and the complainant about the complainant's participation in the forensic procedure and her injuries;

  4. Attended the Police Station with the complainant the day after the incident.

  5. She was present when the complainant spoke to a Police officer (DSC Freney) and advised police that she was yet to sign the release for the SAIK kit, even though the examination had been completed and the circumstances of that decision.

  6. She telephoned DSC Freney on 8 May 2012 and told him the complainant preferred not to make a statement at this time.

  1. The police officer who took the first complaint from the complainant at Civic Park. The identity of that officer remains uncertain.

  2. Officer Weathersby, who collected the complainant's underpants and skirt from the Hospital. DSC King said that his notes could not be located.

  3. Persons who witnessed the complainant's activities and leaving time from the park near St Francis Xavier and those who witnessed the complainant living Fanny's.

  4. The person who produced the CCTV from Fanny's or a witness who could speak to it.

Forensic disadvantage - s 165B Evidence Act

  1. Although the complainant told police about the alleged attack immediately in 2012, it was not until October 2022 that the accused was charged with the crime. The delay of 10 years and 5 months has placed the accused at a forensic disadvantage in a number of ways. The delay has deprived him of being in a position to easily obtain documents such as his employment records, complete banking or telephone records or other material which he may have been able to rely to case doubt on the Crown's case.

  2. The telecommunication records relating to use of the complainant's phone during the evening cannot be obtained. It was submitted that the rest of the CCTV from Fanny's from the evening in question has been lost. Notebook entries or other records from the police who first spoke to the complainant at Civic Park are unavailable. A copy of the extract of SC Whiting's notes from his Police notebook have been lost. Hospital records relating to the complainant's admission on 3 May 2012, for example, admission and discharge notes are not available, nor ambulance records or records held by Detective Freney relating to the 2012 investigation.

  3. The accused may have been able to identify witnesses he could call in support of his version of events or to cast doubt on the Crown case or been able to recall his own movements with greater precision or give more detailed instructions.

  4. There is also a loss of important objective evidence. The tampon, Nerds candy box, Red Bull aluminium can and small plastic zip lock bag were all initially seized from the crime scene by investigators, but then discarded without forensic testing. Similarly, the black skirt and underwear the complainant was wearing at the time of the alleged attack was returned to her without testing.

  5. As the accused has been put into this situation of significant forensic disadvantage he has been prejudiced in the conduct of his defence. As a result, I direct myself that before I convict the accused I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny I must bear in mind the matters I have just referred to and lost opportunity this presents to the accused to potentially rely upon exculpatory evidence.

Elements

  1. To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following three elements of the offence:

  1. that, at the time and place alleged, the accused had sexual intercourse with the complainant.

  2. without the complainant's consent

  3. knowing the complainant did not consent.

  4. the offence occurred in circumstances of aggravation because at the time of or immediately before the commission of the offence, the accused did recklessly inflict actual bodily harm on the complainant.

  1. I can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of them, I must find the accused not guilty. These elements have particular considerations which I will set out.

The accused had sexual intercourse with the complainant

  1. This element concerns the act of sexual intercourse and who perpetrated it. The Crown must prove beyond reasonable doubt that an act of sexual intercourse occurred between the complainant and the accused.

  2. The meaning of sexual intercourse includes:

  1. penetration to any extent of the complainant's genitalia (where complainant is female) or anus by any part of the accused's body or by an object manipulated by the accused.

  2. the introduction of the accused's penis into the complainant's mouth,

  3. cunnilingus, and;

  4. the continuation of any of the above acts.

  1. I only need to consider elements 2, 3 and 4 if I am satisfied the Crown has proved the first element of the offence beyond reasonable doubt.

The sexual intercourse occurred without the complainant's consent

  1. The second element concerns the complainant's state of mind. The Crown must prove that the sexual intercourse occurred without the complainant's consent. Consent means that a person freely and voluntarily agrees to something. So, the Crown must prove the complainant did not freely and voluntarily agree to the sexual intercourse.

  2. The issue is whether the complainant did not consent to the sexual intercourse when it occurred. What the complainant's state of mind was before or after the sexual intercourse might prove a guide, but the question is whether the Crown has proved that the complainant was not consenting at the time the sexual intercourse occurred.

The accused knew the complainant did not consent

  1. The third element concerns the accused's state of mind. The Crown is required to prove the accused knew the complainant did not consent to the sexual intercourse. This is a question about what the accused's state of mind actually was. It is not a question about what you or anyone else would have known, thought or believed in the circumstances. It is what the accused knew, thought or believed.

Recklessly inflicts actual bodily harm on the complainant

  1. The Crown case is that the complainant suffered various injuries during the sexual assault including a burn to the lower lip with a sloughed area; a faint area of circular scratching to the left side of the neck; this being the location where the swab was taken; very faint shoulder bruise; 1cm abrasion to elbow; faint skin marks from pressure and tenderness to back; multiple scratches to the right thigh; 1.5 cm fresh abrasion to the right knee and a 2.5cm bruise to the left foot.

  2. The element of recklessness is made out if I am satisfied beyond reasonable doubt that the injury or injuries relied upon by the Crown was caused recklessly by the accused. An injury is caused recklessly if the accused realised that actual bodily harm may possibly be caused upon the victim by his actions, yet he went ahead and acted as he did. The accused cannot be found to have acted recklessly unless the Crown proves that the accused actually thought about the consequences of his act and at least realised the possibility that actual bodily harm would occur.

  3. I must consider all of the circumstances, including any steps taken by the accused to make sure the complainant consented to the sexual intercourse. The law says the Crown will have proved the accused knew the complainant did not consent to sexual intercourse if:

  1. the accused knew the complainant did not consent; or

  2. the accused was reckless as to whether the complainant consented because the accused realised there was a possibility the complainant did not consent but went ahead not caring, or considering it was irrelevant whether the complainant consented; or

  3. the accused was reckless as to whether the complainant consented because the accused did not even think about whether the complainant consented; or

  4. the accused may have actually believed the complainant consented, but the accused had no reasonable grounds for that belief; or

  5. the accused knew the complainant consented under a mistaken belief.

  1. The Court must also consider the statutory alternative to the aggravated sexual assault alleged. I direct myself that if I am not satisfied that the Crown has proved beyond reasonable doubt all the necessary elements of the principal offence being, then I must find the accused not guilty. At that point I can consider whether the Crown has proved beyond reasonable doubt all the necessary ingredients of the alternative charge. However, I direct myself that I should not regard the availability of an alternative count as an invitation to compromise my verdict. The alternative count's elements are that:

  1. that, at the time and place alleged, the accused had sexual intercourse with the complainant.

  2. without the complainant's consent

  3. knowing the complainant did not consent.

  1. I have already set out the tests for each of those elements.

  2. Finally, with respect to the directions I have given myself, as a result of hearing the application for a judge alone trial, I was provided with a copy of the Crown Case Statement. I note what is set out at para [35] of that document and place no weight on it in terms of my consideration of this matter.

Summary of evidence

  1. I stress that it is a summary only and does not refer to every piece of evidence, although I have had regard to the entirety of the evidence before me. I note that there was oral evidence given by six Crown witnesses and three were called by the accused, including the accused himself. There were 18 exhibits tendered by the Crown and 21 tendered on behalf of the accused.

The complainant’s evidence

  1. The complainant was the first witness. Her evidence in chief was given softly, often through tears. She often hesitated before answering a question in order to compose herself. Her evidence was clear about those aspects of the evening she could remember and she was honest about the fact that there was a substantial portion of the night she did not remember.

  2. Her evidence was that she was 20 years old in 2012 and attended Newcastle University. She worked at the Nandos take away shop and on Wednesday 2 May 2012 she had finished work and met up with some friends in a park in the early evening near her old high school. At some point she got changed from her work clothes and into her going out clothes. After being at the park with her friends, after it got dark, she went into town driven most likely by a friend arriving at Fanny’s.

  3. Her evidence was that while she was at Fanny’s she met up with her friends, SH and LS, both of whom gave evidence. The complainant was wearing a black skirt made out of stretchy material, black underwear and brassier and what was described as a “Peplum dress” which the Court was told was a style that had a singlet top and with an extra layer of fabric that flared out below the waist. It had a zip at the back.

  4. The complainant gave evidence that she was drinking vodka mixed drinks at Fanny’s, but could remember how many she had during the course of the evening. She recalled Wednesday was a busy night at Fanny’s, with the venue packed with students there for the weekly cheap drinks. The complainant recalled that she thought someone had spiked her friend SH’s drink because SH was struggling to talk, she had gone quite limp and she and LS had to take SH to the bathroom with her and help her recover.

  5. The complainant does not remember leaving Fanny’s, but she remembers waking up in Civic Park near the fountain and the garden near the flowers, lying on the ground facing up. Given the critical importance of her evidence, I am going to set it out, commencing at T.52.10:

Q.  What's the next thing you do remember?

A.  It felt like waking up in the park, in Civic Park.

Q.  Do you remember where you were in Civic Park?

A.  Yep.

Q.  Where were you?

A.  Like, in front of the fountain where the garden is.  Where the flowers are.

Q.  When you say waking up, what was your body in ‑ what position was it in?

A.  I was lying on the ground.

Q.  Face up or face down?

A.  Face up.

Q.  Could you feel anything under your back?

A.  I remember grass and concrete.  So, I'm not sure which – when each - happened, but I did have grass underneath me at one point and concrete underneath me at one point.

Q.  What's the next thing you remember?

A.  I remember there was someone on top of me.

Q.  When you say, "someone on top of me," ‑ it's all right, take your time ‑ what do you mean?

A.  So, I was lying down on my back and the man was, I think, sort of kneeling over the top and there was pressure around here, like someone one pushing me down over my shoulders and chest area, like someone was holding or pushing me down.

Q.  You're saying the word shoulder and chest area and you're indicating where on your body, which is around the collarbone area; is that right?

A.  Yep.  Yeah, and shoulders.

Q.  And shoulders, and you said it was a male?

A.  Yep.

Q.  How did you know it was a male?

A.  The male ‑ he was sort of broad shouldered and strong, so I knew straight away that it was a man.

Q.  Could you smell anything?

A.  I don't remember.

Q.  What's the next thing you do remember?

A.  Something was burning me on my lip.

Q.  Can you indicate where on your lip?

A.  I think it was my bottom lip, on maybe this ‑ this is where I feel it when I remember it, so I think it was the bottom left.

Q.  You're gesturing to the bottom lip.

A.  Yep.

Q.  Somewhere near the middle of the mouth.

A.  I think so, yeah.

Q.  A little bit to your left.

A.  I think so, yep.

Q.  You felt a burning sensation.  Did you know where that burning sensation was coming from?

A.  It was from a cigarette.

Q.  Did you see the cigarette?

A.  I think so, yeah, yep.

Q.  Could you smell anything from the cigarette?

A.  I can't remember the smell.

Q.  How are you feeling at this point?  What was your emotional state?

A.  I was terrified.  Really scared.

Q.  Was anything being said by that person?

A.  I think he said, "Don't move."

Q.  When he said that, was the pressure still being applied to you?

A.  Yep.

Q.  Could you see this man's face?

A.  Yep.

Q.  Are you able to say what you understood to be his ethnicity?

A.  Caucasian.

Q.  Were you able to assess what you thought his age might be?

A.  I thought he was about my age, roughly.

Q.  You said he had broad shoulders, was there anything else that you can describe about him, including any facial hair?

A.  I don't think he had any facial hair.  He just looked like there wasn't anything that, sort of, stood out.

Q.  The hair on his head wasn't something unusual.

A.  I don't think so.

Q.  In terms of the clothes you were wearing, what, if anything, did you notice about those clothes?

A.  My skirt was pushed up and, I think, at that point, my undies were pulled down.

Q.  Did you feel them being pulled down?

A.  Yep.  I think so.

Q.  Who pulled them down?

A.  The man pulled them down.

Q.  Were you saying anything to him?

A.  I don't remember exactly when I said ‑ I think I said, "Stop," but I don't remember when I said stop.  If it was straight away or a little bit after.

Q.  When you say you don't remember if you said stop a little before or after, after what?

A.  After this point in time that we're talking about right now.

Q.  What did you see the man then do?  You said he's taken your underpants down.

A.  Yep.

Q.  How far down your legs did they get?

A.  I think they were, like, maybe ‑ sorry, I don't remember.  They were down, but I don't remember how far.

Q.  What's the next thing you remember the man doing?

A.  I get a little bit mixed up with the order of a couple of things that happened, but there was a point where he was biting me.

Q.  Where?

A.  On my neck.

Q.  You're indicating the left‑hand side of your neck; is that right?

A.  I think so.

Q.  Can I ask you this?

A.  Yep.

Q.  That biting of the neck, did it leave a mark?

A.  Yep.

Q.  Was it a mark that you showed anyone after this night?

A.  Yep.

Q.  Who did you show?

A.  I think they took some photos in the hospital.

Q.  Is it the police?

A.  Yeah, I think so.

Q.  When that bite happened to your neck, how did it feel.

A.  It really hurt.

Q.  Did you want any of this to happen?

A.  No, no.

Q.  That is, the pants being taken off, the‑‑

A.  No, I was really scared.

Q.  The bite of the neck wasn't something you wanted?

A.  No.

Q.  When that happened, when the bite happened, did you say anything?

A.  I can't remember if I said anything at that time.  I know that I said, "stop" in there.  In ‑ during this time, or maybe two or three times, but I don't know exactly when.

Q.  What else did the man do?  You said he was on top of you at some point.

A. Yeah.

Q.  Kneeling over you; is that right?

A.  Yep.

Q.  Pushing down?

A.  Yep.

Q.  He's bitten you on the neck?

A.  Yep.

Q.  At some point?

A.  Yep.

Q.  He's pulled your underpants down?

A.  Yeah.

Q.  What else?

A.  He undid his pants or took his pants down.

Q.  Did he take off his underpants, to your knowledge, as well?

A.  Yeah.

Q.  Did you see his genitals?

A.  Yep, yep.

Q.  Just tell us in your own words what happened.

A.  (No verbal reply)

HIS HONOUR

Q.  [Complainant], do you want a break?

A.  I'm okay.

Q.  You can have a break if you'd like one.

A.  No, I'm okay.  I need to say it.  He put his ‑ he put his penis inside me, and he started raping me.

CROWN PROSECUTOR

Q.  I'm sorry to have to do this, but we have to ask‑‑

A.  Yes.

Q.  ‑‑some details.  When you say, "He put his penis inside me," do you mean he put his penis inside your vagina?

A.  Yes.

Q.  You felt that at the time?

A.  Yes, yep.

Q.  Did you want this to happen?

A. No.

Q.  Did you say anything?

A.  I said, "stop."

Q.  For how long did this go on?

A.  I think it was a couple of minutes.

Q.  How were you feeling at that time?

A.  I was really scared that if I did anything then he would hurt me more.  I didn't know if it would be better to stay still and ‑ or to try and make it stop.  I was terrified.

Q.  When you said, "Stop," did he stop?

A.  No.

Q.  Again, I'm sorry to have to ask these questions, but in regards to your menstrual cycle, what can you say about that at that time?  That is, the early hours of 3 May 2012?

A.  I think it had just finished.  It was sort of the last day.  I had a tampon in just in case, because it was going out and I thought I didn't want to have to realise halfway through the night that I had actually not finished it yet, so I put one in just to be careful.  Before he put his penis inside me, he pulled the tampon out.

Q.  How did that make you feel physically?

A.  It was very uncomfortable.  Sorry, this is an awful thing to have to talk about.  I was very dry, so it was ‑ it was painful when it was removed.

Q.  So this penile‑vaginal intercourse is going on for a couple of minutes?

A.  Yeah.

Q.  How did it stop?

A.  I think I yelled out.  Like I ‑ just like a screaming sort of noise.  But it was really quiet in the park, and I think I was just hoping that maybe someone was around that would hear.

Q.  Did you do it more than once?

A.  I think twice.

Q.  As a result of that, what happened?

A.  He stopped and stood up and ran away.

  1. The complainant also gave evidence that her lip, neck, and vagina hurt. She described the pain in her vagina as being the result of some abrasion. Her top was still on, but its zip was digging into her back. She gave evidence that she had grazes down her back and legs, and her back was sore. The complainant gave evidence that she was scared that the attacker would come back, so she hid in a tree. As she had her phone on her, she called MS and told him “someone raped me”. She was scared her family was going to find out. She was scared because her parents were going on a 6 week overseas trip and she did not want to ruin their holiday by telling them about this incident.

  2. MS arrived at the park. The complainant recalls speaking with a police officer at the park and she remembered being scared, embarrassed and worried about her parents’ holiday and her sisters finding out and being upset. The complainant’s evidence was that she recalled being quite intoxicated when the police arrived. She did not feel she could explain with precision what happened, in part because of her intoxication and because she was in shock. She said, “I don’t think I wanted to make it real by saying it all out loud.”

  3. The complainant did not want to go in the ambulance because she believed it would be expensive, so the complainant went with MS in his parents’ car to the hospital. She recalls speaking to a police officer, but she does not remember what she said. The complainant does remember photographs being taken of her by police. Those photographs appear in Exhibit 1. The photographs depicted what are said to be abrasions on her back, left elbow, left knee, legs, arms and the right-hand side of her neck. The complainant noticed in the photographs what she described as “bite marks”. The complainant gave evidence that over the next few days the bite marks, “…turned intro bruising. So, it changed colours, like bruises do.”

  4. After speaking with police at the hospital on the morning of 3 May 2012, the complainant went home, then went back to the hospital later in the day and spoke to a doctor. At that point the complainant gave her version of events. Her evidence included was that she felt unwell and scared at that point. She gave a statement to police but was unsure whether it was her decision to or the police asked her to. She recalls giving police information but was unsure whether it was an official statement. She did not believe she gave a full version to police at that time. She had the impression that in 2012 the police would have difficulty pursuing the matter because she did not know who it was that attacked her. As a consequence of the incident the complainant stopped going to University for a while because she did not want to go back to the area where the incident happened.

  5. The complainant provided a more detailed statement to police during late 2022. The complainant indicated on an aerial map of Civic Park where the attack happened and where the attacker fled after it stopped. That was Exhibit 2. The complainant also identified 6 pages of still images taken from the CCTV cameras at Fanny’s. She identified herself in the stills between the times 12.17am and 3.05am on 3 May 2012.

  6. The complainant was cross-examined extensively, beginning with the fact that she was living at home as at 3 May 2012 with her parents and sisters. She had left school in 2009, started university in 2010 and was attending University during 2012. Her evidence was she would walk through Civic Park from time to time. The complainant worked part-time at Nandos take-away, but she did not remember her shifts. Her evidence was that Nandos closed at 9pm.

  7. With respect to Fanny’s, the complainant had been there before, probably more than five times before. Sometimes her nights out would end there. Fanny’s had a 10pm opening time and it had a 3am closing time. It was a popular place and was often jam packed with people. She believed Newcastle had “lock-out laws” at the time and there was to be no glasses for patrons after a certain time.

  8. The complainant gave evidence about her high school and the fact that during the evening of the incident she went to a park nearby her old school with some friends. Her best friend also worked at Nandos. After having worked at Nandos that day, she may have gone home and gotten changed, then gone to the park with her friends but was unsure. The complainant did not recall whether she and her friends were eating and drinking at the park, but she accepted they may have been drinking alcohol. She believes someone call “Matt” drove her to Fanny’s.

  9. Once at Fanny’s she met up with SH and LS, but she did not know those two girls very well. She was texting MS during the night. The complainant cannot remember the first time she spoke to him that night, but she wanted to meet up with him, but believes he was busy with other friends. The complainant recalls lining up outside Fanny’s to get in and possibly paying a cover charge to get in. The complainant does not remember leaving Fanny’s for any reason and accepted the CCTV shows her leaving about 3.05am.

  10. The complainant gave evidence that she usually carried her licence and bank card in her handbag – rarely keys - but she was not sure if she used cash or card to pay for drinks that night at Fanny’s. Her evidence was that she did not remember going anywhere else after being at the park near her old school and arriving at Fanny’s. She knew what work a “glassy” did at a pub or at a bar.

  11. The complainant was taken to a series of text messages between herself and MS but while she acknowledged they were her messages; she had no recollection of sending the messages. The complainant accepted she tried calling MS at 2.20am and sent a message to someone called ED, although she could not recall why. She spoke to MS at about 2.30am while at Fanny’s and quite intoxicated.

  12. The complainant had no memory between leaving Fanny’s and waking up in Civic Park. The complainant stated that rather than her memory fading, she has always had a gap in her memory. She could not recall how she got from Fanny’s to Civic Park and the complainant was not sure how long it would take to walk from Fanny’s to Civic Park.

  13. The complainant confirmed that at 3.41am she called MS telling him that she was in the park with SH and LS and her friends were going home with two men. The complainant confirmed in her evidence that she believed her attacker was broad shouldered, around 20 years of age but she could not describe his height or the pants he was wearing. She confirmed that she did not recognise her attacker and did not remember his hair colour or what he was wearing. The complainant was cross-examined about her 2022 police statement taken by Detective Senior Constable Ben King, which took her one to two hours to produce. She said the statement was given in the context of being told by police about a “development” in the case but she did not remember when she heard about the accused’s DNA being identified.

  14. The complainant was cross-examined about her evidence that she had been burned by a cigarette during the alleged assault. Her evidence was that the lit end of the cigarette had made contact with her lip and it was held there, although she does not know for how long. She does not recall anything about it other than it was painful.

  15. With respect to the bite mark, the complainant believed it was to the left hand side of her neck and that it was a “full on bite”, although she could not recall its duration. With respect to the intercourse, this occurred for a couple of minutes and then after screaming, the attacker ran away. She recalled running to hide in the tree but did not remember after how long. The complainant said she fixed her clothes up first, then went up a fig tree and called MS. She told him, “Someone raped me” but could not remember saying anything else. MS then came from Raymond Terrace with his parents to collect her. The complainant could not recall who arrived first at Civic Park – MS or the police. She was taken through her conversation with MS. She did not remember saying “don’t tell my parents I will be in so much trouble.” The complainant believed the call with MS probably ended because of the phone plan she had, which I infer means she ran out of credit.

  16. The complainant conceded it was possible she did not speak to the police officer Jason Freney at the park, but sometime later. She did not remember MS giving her a hug at the park, but remembered him arriving with his parents and possibly his sister and being taken to the hospital where her mother was waiting. She could not recall what she told MS about the incident at that time.

  17. The complainant was asked about her examination at the hospital and the photographs that were taken of her. The complainant confirmed her evidence that her friends LS and SH were at the park with her and that her attacker was Caucasian. There were lights in the park, but it was dark. She could not remember if police asked her to look at text messages between herself and MS at the time and she could not check them because she has changed mobile telephone multiple times since 2012. The complainant did not remember if police returned her skirt and underwear to her. She also did not remember dealing with a Dr Hamilton at the hospital nor anything she would have told her, but she does remember being examined by someone.

  18. The complainant was shown a document which became Exhibit C. This was a document generated by the hospital concern the possible release of the complainant’s clothing for examination by police. The complainant agreed that she had signed the document and that she had signed it to the effect that she did not want her clothing released for analysis. The complainant’s evidence was that that was a mistake and that she did not realise that was the effect of what she was signing. The complainant said that she had intended to give consent for the clothing to be released. She did not accept that the document was very clearly worded.

  19. The complainant was then cross-examined again about her recollection of how events unfolded in the park and who she was with and who she spoke to from the police. The complainant recalled speaking with police on 4 May 2012, but she did not remember what she said to them. She stated that she had recently looked at the CCTV stills. She was taken to Exhibit D, being a notebook statement and agreed she again spoke to police, this time on 25 July 2024.

  20. The complainant was asked whether she knew a person called Joshua Fillipo and said that she did not know who that was. The complainant accepted that she spoke to some people in the queue outside of Fanny’s who were possibly Tongan and was asked about Exhibit E, which is still photographs of the complainant entering Fanny’s. The stills and video of the CCTV, being Exhibits 3 and 4 respectively were also shown to the complainant and she was asked a series of questions about who she recognised – including herself – in the images. The complainant recognised herself in the photographs and agreed she might have had her hand stamped or been asked to show identification before entering Fanny’s. The complainant was cross-examined about Exhibit F which contained further still photographs of the complainant entering, moving within and ultimately leaving Fanny’s and she agreed that it did not appear that she leaves with SH and LS.

  21. During re-examination, the complainant explained that the reason she did not tell MS everything about the attack immediately was because she was uncomfortable about exactly what happened. With respect to Exhibit C, being the form she signed about the non-release of her clothing items to police, she stated that she may have signed the wrong spot because she was not used to signing forms and was still in shock. She believed she was giving police the consent to use the specimens. The complainant gave evidence that while she signed the form, it was not her writing on it.

MS

  1. MS appeared in Court to give evidence, but his evidence in chief was provided by way of his statement to police, which became Exhibit 5. He was not cross-examined. His evidence was that he was in a relationship with the complainant for around 2 years and 5 months as at 2 May 2012. That night he had been drinking with a few of his friends at New Lambton and at about 11:30pm, he received a text message from the complainant that read, “are you at wests?? Ring me off someone elses phone? Love you xxo". MS then called her using his friends’ phone. During that conversation, the complainant told him that she had been drinking and that she was out with friends and she had gone into town. At 12.50am on 3 May 2012, MS received a text message from the complainant. It read, "At Fannys!! Kill me hahah”.

  2. At 1.50am, the complainant sent a text message that read, "Miss you xxo". At 2.05am, the complainant sent a text message that read, "Fuck I wish you were here xxo”. At 2.10am, MS received the identical message. At about 2.20am MS was driving home from Wests. He noticed that the complainant was calling him on the phone, but he did not pick up. Shortly after, MS’s friend received a text message from the complainant asking if they were home safe and the friend replied to her that MS will call her when they arrived home in two minutes.

  3. At 3.41am, MS received a call from the complainant. At that time, she described being in a park with her friends SM and LS. The complainant sounded very drunk to MS, but he could still understand her. She told him she was going to get a taxi as soon as she got off the phone. She also said that her two friends were taking two men home with them.

  4. At 3.57am, MS received a call from the complainant and conversation took place. For the purpose of setting out the conversation I have not referred to the parties’ names, although I note they were used during the conversation. The conversation began with the complainant stating, "I need you". She repeated this a number of times.

MS responded, "Calm down. What happened?" He repeated this several times.

The complainant said, "A guy has scared me. I really need you".

He said, "Get back to the main road. Go somewhere safe".

The complainant then said, "Someone raped me".

MS said, "What did you say?"

The complainant said, "Nothing. I just need you".

MS said, "What did you just say?" and he kept repeating this.

The complainant said, "Some guy has followed me and scared me and I am hiding in a tree".

  1. MS then woke his family and told them that the complainant had just been raped, and he asked his family to drive him to Newcastle. While this happened, the complainant was still on the phone. The conversation continued, with MS asking, "What did you say? Did someone rape you?"

The complainant responded, "Never mind. Don't tell anyone, I don't want to get in trouble."

MS told the complainant that he had told his parents and they are now on their way to pick her up.

The complainant said, "I can't believe you told them. You fucked everything. I'm going to be in so much trouble now".

MS said, "[Complainant], I am going to call your mum".

The complainant said, “Please don't, I will be in so much trouble".

  1. Due to the complainant’s phone plan, the pair ended the call and MS called the complainant again using his mother’s phone. Around this time, MS’s mother contacted the police. During this call, he told the complainant not to move, then the complainant said, "Oh my God, is that ambulance for me?" then, "Is that cop car for me?"

  2. Upon arrival at the scene, MS observed the complainant to be surrounded by ambulance and police officers. MS asked the complainant, "Are you okay? Did he hurt you?" to which the complainant responded "I'm okay. It only went in a little bit".

  3. MS’s father then drove the complainant to the hospital in the car with his mother and sister. Just prior to leaving the hospital, the complainant said to MS, "I'm supposed to enjoy it. It isn't supposed to be painful. He forced it in. He moved a little bit. I then kicked him off. It was really small. He put his disgusting bits near me. It's not supposed to be like that".

SH

  1. SH was a friend of the complainant and LS as at 2012. As at May 2012, she lived in Nelson Bay. She remembers going out on 2 May 2012 and was staying at the Albion Hotel in Wickham, which was a common thing to do if she and her friends were having a night out in Newcastle city. She left the Albion Hotel at some point and went to Fanny’s. She remembered having a drink at the bar with LS and the complainant, but that is all she can remember until she woke up in a bathroom toilet cubicle with LS breaking down the bathroom door. LS took her back to the Albion Hotel in a taxi.

  2. SM did not believe she had that much to drink. She does not remember what time she left Fanny’s. She did not see the complainant after she left the cubicle. She recalled speaking with the complainant the next day, but there was no evidence as to what was discussed.

  3. During cross-examination, SH stated that she could not remember what the complainant was drinking at Fanny’s. She recalled the complainant arriving at Fanny’s by herself but could not remember if she was already there when the complainant arrived. Her recollection was that she left while Fanny’s was still open. She described it as a busy night, with lots of people inside. She could not remember seeing the complainant smoking. She could not remember if she had been anywhere else that night. SH was shown the CCTV footage, Exhibit 4, and believe she recognised the complainant in footage at 3am inside Fanny’s. She remembered speaking with a male police officer after 3 May 2012, but not the conversation. She was confident she did not leave Fanny’s with the complainant.

  1. My conclusion that it is the accused who committed this attack on the complainant is fortified by the complainant's description of her assailant as someone about her age, Caucasian and as someone she did not think had facial hair but was strong. It is a description that is very likely to apply to a young man who attended the gym twice a week. While it is true this description is very generic ‑ to use defence counsel's words ‑ it also happens to be a description which neatly fits with the accused at that time.  This was the Crown's fourth argument on its circumstantial case.  This is not powerful evidence, but it is not irrelevant. 

  2. The only rational inference from the combination of the evidence is that the accused committed this offence.  None of the arguments put forward by the accused are reasonable hypothesis consistent with innocence. 

  3. Having found element 1 proved beyond a reasonable doubt I now move to the other elements.

  4. Elements 2 and 3 were not seriously contested.  Nonetheless the Crown must still prove them beyond a reasonable doubt.  I am satisfied that those elements have been proved beyond a reasonable doubt based on the complainant's powerful evidence describing the sexual assault and her clearly articulated lack of consent. 

  5. With respect to element 4 the conclusion I have regarding this element is that the Crown has been unable to satisfy me beyond a reasonable doubt that the offence occurred in circumstances of aggravation. I am not satisfied that at the time of or immediately before the commission of the offence the accused did recklessly inflict actual bodily harm on the complainant. 

  6. As the Crown has proved elements 1, 2 and 3 of the offence beyond a reasonable doubt, I have considered the statutory alternative provided for of s 80AB(1) of the Crimes Act. 

Verdict

  1. On that basis my verdict is that Mr Murphy is guilty of the offence of having sexual intercourse with the complainant without her consent pursuant to s 61I of the Crimes Act 1900.

**********

Amendments

11 September 2024 - Amendments made to [27], [40], and [65] to anonymise the witnesses.

12 September 2024 - Amendments made to [91] to anonymise the witness.

Decision last updated: 12 September 2024

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Liberato v The Queen [1985] HCA 66
Liberato v The Queen [1985] HCA 66