R v Pocknell - [2015] NSWDC 175

District Court

New South Wales

Medium Neutral Citation: R v Pocknell [2015] NSWDC 175
Hearing dates: 24-26,30, 31/03/2015
Decision date: 01 April 2015
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Count 1b - Guilty

Catchwords: Criminal – trial by judge, sexual assault
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited: Fleming v R [1998] 197 CLR 250
Category: Principal judgment
Parties: Director of Public Prosecutions
Kevin Anthony Pocknell - Accused
Representation:
Counsel:
Ms Seeto - Crown
Mr Conwell - Accused
Solicitors:
Director of Public Prosecutions
Nyman Gibson Miralis Lawyers - Accused

File Number(s): 2013/66506

Judgment

HIS HONOUR: In relation to this matter I propose to return verdicts of not guilty in relation to count 1a and count 2. I propose to return a verdict of guilty in relation to count 1b, the alternative count to 1a. I give my reasons and pronounce the verdicts at the conclusion of my reasons.
Kevin Anthony Pocknell has been arraigned in this court in relation to three counts in an indictment alleging offences committed by him on or about 10 or 11 May 2012 at Woolloomooloo. Count 1a alleges that the accused did have sexual intercourse with CS without her consent knowing she was not consenting. The alternative count to that allegation is that he on the same date at the same place did commit an indecent assault upon the complainant CS. Count 2 is an allegation of the accused committing the offence of indecent assault upon the complainant at about the same time as the events giving rise to the allegations at the heart of counts 1a, alternatively count 1b.
The accused pleaded not guilty in relation to each of those charges and had made application for trial by judge in accordance with the relevant provisions of the Criminal Procedure Act. Leave was granted for the time for the making of that application to be shortened and the trial has proceeded as a trial by judge without a jury.
The trial proceeded initially with consideration of evidence “mixed” in the sense of evidence that was admissible for the purposes of the trial and evidence that was admissible, at least at first, as being relevant to consideration of the admissibility of an electronic interview conducted with the accused on the afternoon of 4 March 2013, the day of his arrest.
The trial being a trial by judge alone in accordance with the requirements of ss 132, 132A, 133 Criminal Procedure Act [1986] requires the trial judge not just to state the principles of law that are applied and findings of facts that are made, but also to expose the reasoning process justifying the findings of fact and ultimately the verdicts of the court. All principles of law which are relevant are required to be applied and considered are to be identified in the judgment. Some will require little exposition, some will require a greater exposition. I must also apply any necessary warnings required to be made in the assessment of the evidence.
In relation to these matters and related matters I apply the reasoning of the High Court in Fleming v R [1998] 197 CLR 250. Being a criminal trial the prosecution bears the onus of proving the guilt of the accused in relation to each count. Each count must be considered separately where it is appropriate to do so. Of course in this matter count 1b is an alternative to count 1a and can only be considered if the court finds the accused ‘not guilty’ of count 1a. The burden of proof or onus of proof rests with the prosecution throughout the trial in respect of all matters requiring proof by the prosecution. The matters requiring proof by the prosecution are the essential ingredients or elements of the particular charge or count under consideration. Of course some facts may be required to be established beyond reasonable doubt in order to establish that a particular element of a particular count has been so established.
The accused bears no onus of proof, he is presumed to be innocent until such time as the prosecution can prove his guilt in relation to a relevant count in the indictment. In order to establish a relevant count in an indictment the prosecution must prove each and all essential ingredients or elements of the relevant count for consideration beyond reasonable doubt. Those words are to be given their ordinary everyday meaning. The accused bears no onus in relation to any matters requiring proof by the prosecution beyond reasonable doubt. If a reasonable doubt exists in relation to a matter or matters which the prosecution must prove then I must acquit the accused. In this matter the accused gave evidence on the voir dire, part of which was admitted as evidence in his case. He was under no obligation to give evidence in relation to matters about which evidence has been received relevant to the question of whether he be guilty or not. His admissible evidence forms part of the totality of the evidence upon which a determination of guilt or otherwise is to be made.
With regard to the elements of the counts in the indictment I will deal firstly with the count alleging sexual intercourse without consent knowing that the complainant was not consenting. The Crown must prove beyond reasonable doubt firstly that the accused had sexual intercourse with the complainant at about the time and at the place alleged in the indictment although in this matter time and place are not of the essence. Secondly the Crown must prove that the accused had sexual intercourse with the complainant without her consent and thirdly the Crown must prove that the accused knew that the complainant did not consent.
‘Sexual intercourse’ has a wide meaning under the Crimes Act, but in this case its definition within the Crimes Act includes penetration to any extent of the genitalia of the complainant by the penis of the accused. As to the issue of proving that the accused had sexual intercourse without the complainant’s consent it is for the Crown to prove beyond reasonable doubt that the complainant did not consent. The person consents to sexual intercourse when he or she freely and voluntarily agrees to have sexual intercourse with another person. That consent can be given verbally or expressed by actions. Similarly absence of consent does not have to be in words, it also may be communicated in other ways such as the offering of resistance, although this is not necessary, as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not by reason only of that factor to be regarded as consenting to the sexual intercourse. Consent that is obtained after persuasion is still consent, provided that ultimately it is given freely and voluntarily.
If the Crown fails to prove that the complainant was not consenting the accused must be found not guilty of this particular count. The next issue to be considered is whether the accused knew that the complainant did not consent. In relation to this matter it is the accused’s actual knowledge of the lack of consent with which I am concerned. The Crown asks the court to conclude from all the evidence in the case that it has produced and, of course, that includes what are said to be admissions by the accused in relation to relevant matters, that the accused must have known and did indeed know that the complainant was not consenting in this matter. Primarily because the complainant was “intoxicated” by the effects of prescribed and non-prescribed drugs and perhaps other substances and was in no condition to be able to freely and voluntarily consent to any sexual activity.
In a situation where the complainant does not in fact consent the accused’s state of mind at the time of any act of intercourse or any act of indecent assault, because these directions I give myself in relation to consent are equally relevant to indecent assault, might be that he actually knew that the complainant was not consenting. This is a guilty state of mind for this particular allegation and the allegation of indecent assault. If the Crown satisfies the court beyond reasonable doubt that this was the state of mind of the accused at the time of the act of intercourse then this element has been made out. If, on the other hand, the court may decide on the basis of the evidence led in the trial that the accused might have believed that the complainant was consenting to the sexual intercourse with him or the indecent assault alleged by the Crown, whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and if so whether he had reasonable grounds for that belief.
Therefore, if the court is not satisfied that the accused knew that the complainant was not consenting the Crown must prove one of two facts before I can find the accused guilty. Either that the accused did honestly believe that the complainant was consenting or that if he did have an honest belief as to her consent that he had no reasonable grounds for that belief. It is for the prosecution to prove that the accused had a guilty mind. If there is a reasonable possibility that the accused honestly did believe on reasonable grounds that the complainant was not consenting, then the court would have to find the third element of this count not made out and return a verdict of ‘not guilty’ in relation to this matter.
In the circumstances of the matter, although it was not the subject of any particular submission by either Crown or the accused, it seems to the court that given the intoxication, or the alleged intoxication if I might call it that, of the complainant, and of course the intoxication of the accused, the issue of whether the accused was reckless as to whether the complainant was consenting or not clearly arises.
The Crown may prove that the accused was reckless as to whether the complainant was consenting or not if it proves beyond reasonable doubt that the accused failed to consider whether the complainant was consenting to the act amounting to a sexual assault, as it is variously pleaded in the indictment, even though the risk that the complainant was not consenting was obvious to someone of the accused’s mental capacity if he or she had turned his or her mind to it. Or, the accused’s state of mind was such that he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not.
It is the accused’s state of mind with which I am concerned. It is not a question of what I would have realised or anybody else would have thought or believed. This aspect of the matter requires the court to look at what was going on in the mind of the accused and in this regard I have to have regard to all the surrounding circumstances. There is evidence available for the court to conclude that the accused at relevant times was intoxicated. In relation to allegations relating to sexual assault and establishing that the accused knew that the complainant was not consenting, the court is required to ignore the effects of intoxication in the sense that if the court determining the facts of the matter thought the accused’s ability to think or understand what was going on was affected by alcohol, then that is to be put to one side on the issue of knowledge. What the court is required to do is to look at the accused and ask what would have been going on in his mind if he had not ingested alcohol in the circumstances of this matter.
This is not a case where the prosecution is entirely dependent upon the truthfulness and reliability of the complainant. In fact, if the complainant’s evidence stood alone, there would have been no trial because the complainant is unable to provide any evidence that would be directly relevant to proof of guilt of any count in the indictment, save of course for some evidence she gives about the dishevelment of her clothing and observations of her person after relevant events. She does not have any memory that is worthy of scrutiny of relevant events.
That having been said, I caution myself that there may be reasons to examine the reliability or lack of reliability of the complainant, particularly in the context of herself admitting ingestion of prohibited drugs and prescribed drugs in the period of time immediately before and in the days before the relevant events. In scrutinising her evidence, in this respect, I also consider that it is appropriate to warn myself that similar warnings are required to be given in relation to the three civilian witnesses who are relied upon by the Crown having regard to the evidence they gave in relation to their ingestion of either prescribed drugs or non-prescribed drugs and/or any other substances they may have ingested in the period of time immediately before their observations of matters relevant to the matters arising in the indictment.
Based upon the cross-examination of the complainant and the witnesses, no issue was taken as to the possibility of the witnesses having discussed their evidence before they committed their memory to statements, such as their memories may be, or any suggestion of contamination of recollection arising out of the circumstances in which they have come forward to give evidence. Although, I am mindful of the fact in relation to one witness, Ms Cargill, there was cross-examination about her evidence in the Local Court.
It was clear from the evidence she gave at the Local Court in the transcript that was produced and the subject of examination that she gave inconsistent evidence at the Local Court as to the quantity of prohibited drugs and the type of prohibited drug that she had ingested during the day of 10 May and that evening, or perhaps the following early morning. I have taken that matter into account. A prior inconsistent statement may be relevant to the assessment of the credibility of a witness. This applies to any witness who has given evidence in the case. The significance of the prior inconsistency will depend upon the significance of the evidence or the witness in the case and of course the significance of the inconsistency, the number of inconsistencies and the context in which those inconsistencies arise. I accept, in the context of the cross examination of any witness, that his or her acceptance of evidence that she had given on a prior occasion that was inconsistent with the evidence in court may be acted upon as her evidence in this trial. This is self-explanatory and I have taken into account that aspect of the cross-examination of that witness.
In this matter there is no issue arising for consideration concerning the credibility of the complainant as to complaint or lack of complaint that was made, or the relevance or admissibility of representations of a hearsay character. The reason for that is in the circumstances, or having regard to the circumstances of the complainant’s evidence, no matter arose for her to be able to remember what had happened. It is clear the matter was brought to the attention of investigating police promptly after the complainant had awoken, and it is quite clear on the evidence that she was in no state to be able to make a specific complaint about the accused in relation to the subject matter of the counts. It was clearly the case, and there has been no comment again in relation to this matter in submissions, that she was more concerned about her wellbeing. The issue of raising the alarm, so to speak, and prompt complaint, if that is the correct expression, to the investigating authorities fell to others who were in a better state than she was.
As it turned out, the actions of her friends, if I might call them that, who were familiar with certain events that may have caused them concern, the prompt attention of the police, the subsequent handling of the complainant, the treatment of her in hospital, the investigation by the medical practitioners including the sexual assault “team”, are matters that have ultimately militated in favour of the position of the accused notwithstanding the damaging admissions he made a number of months later. This is not a case on the facts, nor was it suggested in any way, that the credibility of the complainant was in any way tarnished or infringed by reason of delayed complaint or anything of the sort. As I said, the evidence is clearly that if there was any “delay” of complaint by the complainant herself, there were many, many explanations for that, and such delay as may have arisen was a matter of hours before she was assessed by people qualified to assess her.
In respect of the issue of indecent assault as it arises in relation to counts 1a and 1b, I have already dealt with the issues of consent. It is clear that although not expressly stated in the pleading, the proof of consent or the proof of lack of consent by the complainant and the proof of knowledge of the complainant not consenting are relevant matters for the Crown to establish. The Crown must also establish as fundamental matters that the accused assaulted the complainant. Secondly, that the assault was an indecent assault as provided for in the law, and that, as is pleaded in the indictment, “at the time of such assault” the accused did commit an act of indecency. An assault is a deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act to be an assault in these circumstances, or to cause the complainant fear or pain.
The Crown must prove also that the assault was indecent. The word “indecent” means contrary to the ordinary standards of respectable people in this community. It is for this tribunal of fact to determine the standards prevailing in our community when deciding whether the prosecution has satisfied the Court beyond reasonable doubt that the act alleged in this case was indecent. For an assault to be indecent it must have a sexual connotation or overtone. It must be a touching of the body in a way which clearly gives rise to a sexual connotation. An act of indecency must be committed at the time of the assault. However, the Crown does not necessarily have to prove two separate acts. An act that constitutes an assault may constitute an act of indecency. The Crown can rely upon the same act as amounting to both the assault and the act of indecency, and that is what the Crown alleges in this particular case. I do not believe it is necessary for me to dwell any further in relation to the elements of the counts in the indictment.
Where there is conflict in material relied upon by the prosecution and the defence, it is not a question of the court deciding which version it prefers. The issue is, as I have earlier explained, whether the Crown has proven the guilt of the accused person in relation to a particular count beyond reasonable doubt having regard to the totality of the evidence. In this particular matter the Crown relies upon representations made by the accused to the investigating police primarily, in the recorded interview conducted from 4.34pm onwards on 4 March 2013 at the Kings Cross Police Station. I pause for a moment to point out that in relation to that matter there was objection to the admissibility of that recorded interview. In respect of that objection I handed down a judgment in relation to the matter last Monday 30 March, although the document I handed out incorrectly identified the date as Tuesday 31 March.
In considering the judgment I give now in relation to relevant factual issues arising from the evidence, I direct that consideration of my findings should also be had in conjunction with findings of fact, which I do not need to repeat, set out in the judgment that I gave, particularly findings of fact that I made in relation to matters set out at paras 6-14 of that judgment and observations made in relation to the consideration of the admissibility of the evidence. Particularly findings concerning the circumstances of the accused’s intoxication and his condition whilst being interviewed, his condition before he came into custody, his condition after custody, and observations I made concerning the relevance of admissions made by him and assessment of those admissions within the then context that I was required to consider them.

Of course, representations or statements made by the accused against his interests are admissible as admissions. I do not need for the purposes of this case to give a lengthy outline of the meaning of ‘admission’ under the Evidence Act. It was clearly understood by the submissions of both the Crown and the accused that certain statements made by the accused were capable of amounting to admissions of fact that were contrary or against the interests of the accused in this litigation, and I will analyse some of those matters in the context of my findings in the earlier judgment shortly.
It is correct, as the Crown pointed out, that if the accused’s admissions in relation to sexual intercourse with the complainant, that is penile vaginal intercourse, and biting the complainant on the breast, were accepted as true then those admissions could be used in proof of the guilt of the accused in respect of relevant matters pleaded in the indictment.
If I might now turn to the Crown case, to summarise the issues in the trial largely by reference to the way in which the Crown made its final submissions and also deal with the issues that have been raised by the accused in submissions, before turning to some analysis of the factual issues and the related legal issues that arise.
In respect of the matter, I naturally have had regard to all the evidence in the trial, both documentary and oral. I need not go through the detail of the various witnesses who gave evidence or the particular documents that constitute exhibits in the Crown case or the exhibits in the defence case.
The evidence in the Crown case might be conveniently categorised as being related to three areas, but there is some overlapping of those areas. Firstly, there is what I would call the civilian witness evidence, the evidence of the complainant and of the three people that were relied upon by the Crown as relevant eyewitnesses to events pertinent to this trial.
The second category of evidence would be the evidence of police investigations and inquiries and related scientific and medical investigations following upon the work of the police who came to the scene in the morning of 11 May 2012, as well as other police involved in the handling of exhibits and the like, as well as results of medical examination, the inquiries of the Division of Analytical Laboratories and the opinions of Dr Judith Perl, having regard to material provided to her concerning the consumption of prescribed medications and prohibited drugs.
The third area of evidence and, in one sense, the most crucial area of evidence for the Crown, particularly in relation to proof of counts 1a and 2, was the aspect of the police investigation concerning the arrest of the accused and of course the interview of the accused that I have referred to on that date, previously the subject of judgment by the Court. Of course I appreciate the interview was followed by the swabbing of the accused and the like matters that were taken up within that second area of evidence to which I have referred.
It is also worthwhile stating for the purposes of someone reading this judgment, not familiar at this point with the evidence of the case, that the accused was alleged to have sexually assaulted the complainant, in circumstances where he had walked down with her from Kings Cross, either during the evening of 10 May 2012 or the early hours of 11 May 2012, coming to an area that was described as Walla Mulla Park, an area of grass and concrete said to be in the vicinity of the Woolloomooloo Police Station and located underneath the overpass which comprises the Eastern Suburbs railway. In the vicinity of this supposed park, which is a mixture of grass and concrete, are two unisex toilets nearby. It is a place where a number of homeless people on a daily basis will sleep, using blankets and doonas which apparently are provided by charitable organisations and available for their use from bins located in the area.
It was a place, as I understood it, where Napier Waters, Marilyn Cargill and Michelle Murray, the three civilian “eyewitnesses”, regularly stayed. It was a place that CS knew of and on occasions obviously stayed, being well-known particularly to Marilyn Cargill and Michelle Murray. It was a place, as I would understand the evidence, that the accused irregularly stayed. If he had ever stayed there before I cannot say. It was a place of accommodation of effectively “last resort”. The complainant was a person who had other accommodation but on the night in question had not been able to enter her accommodation within the curfew hours.
In relation to the way in which the cases were argued and relating to the issues that I have to decide to those matters, the Crown case was that the accused and the complainant, having walked from Kings Cross to Walla Mulla Park, they laid down eventually on the ground, either under blankets or perhaps on other blankets, and there they stayed for some hours during the night. During the late night or during the early hours of the morning the accused is alleged to have had penile penetration of the complainant’s vagina, giving rise to count 1a. Alternatively whilst the complainant was in a state of undress fondling or touching her right breast, giving rise to count 1b, and that he also bit her on the breast, or the “tit” or “tits”, independently of the other activity, giving rise to the allegation in count 2.
The Crown submits that the proof of guilt of the accused, notwithstanding other evidence in the case that links the accused to the complainant in respect of the subject of the charges, in relation to count 1a and count 2 is dependent upon the truthfulness of the admissions the accused made during the course of the electronic interview to which I have referred.
The Crown submitted that consent was an issue for the Court to consider, both as to whether the complainant was consenting or not and whether the accused knew she was not consenting. Although recklessness has not been referred to by the parties, it is clear, having regard to what I was invited to consider to be the intoxication of both the complainant and the accused, that the issue of recklessness was a relevant matter to consider in assessing the state of mind of the accused in respect of the issue of whether he knew the complainant was not consenting.
The Crown said that in respect of the accused’s admissions it was conceded the accused was not or may not be a reliable historian. It conceded in its submissions that some of his admissions were not true, including giving “ice” or “crystal methylamphetamine” to the complainant for sex. Other claims he made were not true or were possibly not true having regard to the medical and scientific evidence. The Crown submitted that the evidence had established that the accused knew that the complainant was not consenting. She could not be consenting because of her condition, and her condition was established not only from her evidence, but the independent evidence, as well as the results of subsequent investigation of the complainant’s condition such as the urinalysis that was undertaken. It was clear that when the complainant arrived at the Park she was under the influence of various drugs and in the words of one witness was “out of it”, as she herself said.
With regard to the accused’s admissions concerning vaginal penetration or biting the complainant on the breast, the Crown pointed out that there was no evidence of injury to support those matters. But the DNA profile of the accused connected him, in whichever manner that had arisen, to the right breast, consistent with physical contact with her.
In relation to the count of sexual intercourse without consent, the prosecution noted the accused, first of all, claimed he had ejaculated and then later in his interview conceded possibly he did not ejaculate. It did note, whatever one makes of that concession of the accused, the scientific evidence shows no presence of semen in the various swabs and smears, and in relation to the testing of the high vaginal area there was no evidence of the presence of the accused’s DNA.
The Crown submitted that the civilian witnesses, however, provided support for the fact that the accused was involved in sexual activity with the complainant, relying upon Ms Murray and Ms Cargill to establish the alternative count, the touching of the breast, particularly in the specific detail of Ms Cargill’s evidence of the accused fondling the breast of the complainant and having his hand on his penis. There was also to be taken into account the evidence of Mr Waters as to his observation of what he believed to be sexual activity, and of course the evidence of Ms Murray, where she specifically articulated her objection to sexual activity occurring as she understood it to be.
The defence submissions, as I can best summarise them, were that the accused should be acquitted of all of these counts, bearing in mind that, firstly, the Crown was dependent upon admissions which were untrue and unreliable, and alternatively the independent evidence itself was unreliable.
The counsel for the accused provided written submissions, which have been marked for identification. I asked counsel, however, to make oral submissions by reference to the document he had provided. The central points made in the particular submissions of the accused were as follows. Firstly, the court cannot be satisfied beyond reasonable doubt as to the truth of the admissions made by the accused for a number of reasons. There was limited evidence to “corroborate” or support the critical admissions, and such evidence as supported the admissions of the accused independent of him was only concerned with “opportunity”, to use my word, to commit the relevant offences. Opportunity was not sufficient given the eyewitness’ evidence.
It was noted that the accused had made admissions integral or related to those required to establish counts 1a and 2, but these were untrue. Some of the untruths identified in the written and oral submissions were, as to the place at which they had met that night, how they met, as to the fact that the accused admitted buying the complainant ice or methylamphetamine for sex, there being no evidence of any methylamphetamine in the urine of the complainant within a reasonable time that would be expected to show that the accused’s account of where he slept with the complainant or had sex with her, did not accord with the physical evidence. The accused also gave an account, after sleeping together, of walking with the complainant back to Kings Cross, which was, on the balance of the evidence, untrue.
Of course it was submitted these untruths were not available as consciousness of guilt and no submission has been made by the Crown about the issue of consciousness of guilt, mainly because, as it arises in this case, such “lies” as the accused said did not inculpate him, but they exculpated him on the basis of other evidence in the case.
The reliability of the accused’s admissions also had to be considered in the context of his condition at the time of the interview with the police and his lifestyle at the time, not only in the years beforehand, but in the days beforehand as revealed in the medical evidence to which I referred in the earlier judgment.
As to the civilian witnesses, specific reference is made to the drugs or medications which they respectively were using, including the complainant, Mr Waters, Ms Cargill, known as Aunty Maz, and Michelle Murray. The learned counsel for the accused went through the detail of their respective evidence about drugs and medication that they were taking and there was no dispute from the Crown as to the detail provided, and I adopt it so far as it simply states what the witnesses referred to, save for some qualifications I will come to shortly. In that regard I simply note the details at p 2 of MFI 2 (the accused’s submissions) in respect of the complainant and Mr Waters, and the details at pp 4 to 5 of the submissions in relation to Ms Cargill and Ms Murray.
There was some other evidence that reflected upon the lack of reliability or lack of accuracy of the civilian witnesses by reference to the evidence they gave in the case cited in the written submissions. They appear to give different times for the arrival of the complainant with the accused at the park. Mr Waters said that he came down to the park from his job at Kings Cross sometime between 1.30 and 2am and that he saw the complainant and the man who was said to be the accused coming down to the street towards the area.
Ms Cargill said the complainant and the accused arrived about 9.30, approximately an hour after she had set herself up for the night which was about 8.30. Ms Murray said that the accused and the complainant arrived just on or after dark which I take to be, in mid-May, around about 6.30pm or thereabouts.
There were also differences. I pause for a moment to point out that this analysis of their evidence by the accused in this respect was an accurate analysis. There was also differences that were said to arise in their accounts as to the extent at which the complainant was capable of communicating to them when she arrived at the park. There were different accounts also given by Mr Walter, Ms Cargill and Ms Murray as to what particular activity they observed the complainant involved in before she went to sleep, particularly, whether she was sitting up and talking, whether she was lying down and the like.
I pause to point out in the course of submissions it was conceded by counsel for the accused that making allowance for the above matters there was a common thread in the accounts of these eye witnesses as to what was seen by them as happening between the complainant and the accused during the night or the early morning under the blankets. Apart from what Ms Cargill saw of the accused touching the breast of the complainant and with his hand on his penis and Ms Murray’s account of seeing the accused with his hand on the breast of the complainant, it may have been at a separate time, it is hard to work out from the evidence, there was a consistency in their evidence that there was some sort of activity going on between the accused and/or the complainant, to use counsel’s words not mine, “this was activity of a quite amorous character”.
There is overwhelming evidence from the complainant and the eye witnesses that when the accused had left and the complainant woke up in the morning her pants and underpants had been removed or at least taken down to at least her ankles and her upper garments had been interfered with in one way or another, but in circumstances in which the complainant could not remember.
It is worthy of note that Mr Waters when he was concerned about the conduct of the accused towards the complainant at one stage told the complainant to cover up her “black arse”, the complainant being a lady of either Maori or Aboriginal background. Mr Waters, Ms Murray and Ms Cargill I hasten to say are “Kooris” too.
Whichever way one looks at the evidence of these witnesses however, whilst there was evidence of the accused being on top of the complainant at one stage, “looking like he was having sex” to use Ms Murray’s words, with his pants down near his ankles and other observations, and apart from the evidence of the accused fondling or touching the complainant’s breast, there was no direct evidence of penetration and no evidence upon which I can conclude from the eyewitnesses that penetration of the complainant had occurred.
I note in relation to Ms Murray’s account of the accused touching the complainant’s breast that she said he, “looked like he had his hands down her top”. In the absence of a reliable history from the accused, given his alcohol consumption, his medical treatment and history in the days and hours leading up to the giving of the record of interview, upon which the case relies so heavily and having regard to the medical and other scientific evidence and the questions that arise in relation to the reliability of the civilian witnesses, particularly the complainants inability to recall important events of the night, it is submitted the accused should be acquitted of all the counts. Including, as I would understand it, the alternative count. Because the Crown could not prove beyond reasonable doubt the absence of consent on the part of the complainant or that the accused relevantly knew that the complainant was not consenting.
One other matter raised by the defence relates to the evidence given by Constable Shakespeare that the accused had no prior convictions for offences of a sexual nature. This matter is not disputed by the Crown. It is raised in the written submissions as requiring some form of character direction which I give to myself, but in a limited way. It was conceded by defence that what is sought is a “limited” character direction. That is, I must take into account that he has no prior convictions for sexual assault as relevant to the assessment of the likelihood of him having sexually assaulted the complainant as she alleges. As I said, it is conceded this is a matter of limited importance in the scheme of things.
Turning to that area of evidence relating to the civilian evidence, including that of the complainant. As I have pointed out, whilst the complainant ordinarily would be a vital witness in proof of guilt of allegations of assault or sexual assault, this is not that case. Although her evidence has to be considered obviously in conjunction with all the other evidence in the matter. The complainant had some general recollection of events leading up to her attending the park in company with a male person who she had no real memory as to the identity of. Her recollection being significantly affected by the fact that she had consumed between two and five Xanax tablets which caused her to be drowsy and have an incomplete memory of the night. She was too a daily user of methadone and I note the observations of Dr Perl about the effect upon a person even, if tolerant to methadone or tolerant to Xanax, of the combination of both those two drugs.
She remembers going to the park then going into a sleep, having her undies and pants near her ankles at one point of the night and then in the morning, after the accused had left, feeling quite “yucky” “downstairs”. She was heavily menstruating I would point out at this time. Her menstrual period, according to the medical notes, starting on 8 May and it is clear that she was still menstruating when she was medically examined on 11 and 12 May.
She went up to Wayside Chapel and I had some evidence from the officer of the Wayside Chapel who assisted her. She made no complaint of being sexually assaulted, but she in her own words was, “pretty doped out”. Police found a pair of black underpants which I am prepared to accept on the evidence, including the DNA testing of the pants, to be the underpants she was wearing that night. She said she had been wearing black underpants although she was unclear as to where she left them.
She was not given a shower at the Wayside Chapel, she could vaguely remember being provided with fresh underpants. She had covered herself up after she woke up with the blanket that she or one of the blankets that she had slept on and she had to go to the toilet where one of the women helped clean her up.
She also had no memory of being at the Poya Inn with the accused some months later, that is in very late November as I understood the evidence around 30 November or 1 December 2012. This reflects upon her lack of memory of being with the accused on the night but may also reflect upon the extent of her intoxication on that night or her intoxication when she was at the Poya Inn or both. She was adamant, however, she did not take methylamphetamines or amphetamines on 10 May, a matter in my view confirmed by subsequent urinalysis. Ultimately her account was that after the meeting with the accused and having had a conversation about him joining her to sleep down at the park, although she denied she invited him to have “sex with her”, she does not remember very much at all.

Napier Waters was a methadone user. He used prohibited drugs from time to time. Those matters are detailed in the submissions of the accused. He knew the complainant, as I said he saw her in the early hours of the morning and she was out of it and she was staggering and pretty charged and as I said earlier he made observations of the complainant in the company of the male when they were under the blankets he saw the accused on top of her. He told the male to stop having sex with her. He saw her with her skin exposed on her leg up to her bottom. He saw her “bare bottom” and he saw the accused pants to be down during the time that he was on top of the complainant. When he woke up the complainant was crying and she was ‘out of it’ to use his words.
He had a belief that the accused at various times was “having sex” with the complainant but that arose from his position in relation to the complainant under the blankets. The observations of Ms Cargill and Ms Murray were of somewhat similar effect to the extent that the complainant appeared to be adversely affected by drugs or other substances when Murray saw her. I have already mentioned the different accounts they gave of her arrival. Ms Cargill herself said she had a shot of heroin in the toilets, injecting herself with heroin before she went to lay down. At the Local Court she indicated that she had actually taken cocaine and had at least two shots of cocaine before she went to sleep, perhaps three. I could not conclude that she was unaffected by prohibited drugs at the relevant time, but at the same time, the essence of her account is substantially in line with the accounts of Mr Napier, the complainant and Ms Murray, concerning the fact that the complainant was sleeping with the accused, they were in close proximity to one another and the like.
Ms Cargill said that during the night when she got up she saw the accused fondling the breast of the complainant with his pants down, with his hand on his penis masturbating himself. She also said that the accused was laying behind or beside the complainant and at various times she saw the blankets moving. She was concerned about the complainant given her condition.
Ms Murray’s account was one given in the context of having ingested methadone and cannabis. She saw the accused pushing the complainant down and described her as “fighting back”. I have already quoted the evidence of her observation of the accused “touching” the complainant’s breast. She thought the accused was doing something “he should not do”. She encouraged Mr Waters, who was her partner, to get up and stop the man. Ultimately she saw the man leave alone and she yelled out that she was going to take the matter to the police. She thought that the accused was “trying to have sex” with the complainant under the blankets. Again, as I said earlier, her observations have to be assessed as with the other observations having regard to the lighting and the distance that they were away from the blankets. They variously described themselves as being between 10 and 12 metres away and the fact of course that at relevant times the accused and the complainant were covered by a blanket.
There was general accord between their accounts, but there were also conflicts in the detail of the presence of particular people at particular time and the timing of the arrival of the complainant at the park and these matters have to be taken into account in assessing their reliability particularly in the determinations required to be proven by the prosecution beyond reasonable doubt.
There was no opinion expressed by any of these witnesses to the extent to which the accused was intoxicated, although I am prepared to accept that I can draw the inference that the accused when he came with the complainant would have been intoxicated, because it would appear on the evidence that he was intoxicated every day at about this time.
The accused gave evidence in the trial, through the evidence he gave on the voir dire, and that confirmed the extent of his drinking which was very substantial. His evidence, although it was not directed at the events on the 10 May, concentrating of course on the events leading up to 4 March the following year, seem to suggest that he was a sporadic user of ‘Ice’ which confirmed what in my view is established by the urinalysis of the complainant that neither he nor she used methylamphetamine on that night. He obviously, from all the evidence in the trial including the evidence of police, could be categorised as a homeless person who from day to day drank excessively, sleeping where he could, either in temporary ‘digs’ or sleeping rough. The complainant lived the same lifestyle, in fact they both knew each other from some form of shelter known as the Haymarket Centre as I did understand it.
So far as the evidence of the accused from the interview, what does emerge from that is a concession by him that he knew the complainant and that he had gone to sleep with her on one occasion in order to participate in some form of sexual activity.
Coming back to the second area of the evidence, this is the result of the police investigation. I have evidence both from the crime scene examiner, the observations of some of the young police officers who came to the scene on the alarm being raised, the medical examination of the complainant, the swabbing and smearing of the samples, the urinalysis and other results of the examination of those items.
The complainant, as I mentioned earlier from her evidence, said that she woke up without underpants or pants. I note, if it be relevant to the assessment of the scientific evidence, that she complained of some wetness in her clothing, particularly in her pants but she was also menstruating heavily. From the medical evidence there is no evidence, given the absence of injury to the vagina and the anus although she did have a haemorrhoid on her anus which is of no relationship to this matter, that the bleeding that had been observed by lay witnesses and by medical staff was as a consequence of penetration. Whilst there was observation of “possible” semen or smegma in the right groin area from which a sample of hair was taken and possibly “semen” in her hair with evidence of extensive bleeding or recent bleeding in the area of her abdomen and buttocks, there was no “ano-genital injury”. Although the opinion of the examining doctor was that “the lack of obvious acute trauma does not negate the allegations” and that the normal examination of a mature women following alleged penile penetration is commonly similar to this in such examinations for various reasons, the absence of injury does not establish that penile penetration occurred.
I note the sexual assault examination occurred at 2pm on Saturday 12, the complainant of course had gone up to the Wayside Chapel for clothing and assistance at about 8.30am on Friday 11 May. At the Wayside Chapel she did change into some clothing, particularly, as I understand it, obtaining underpants. I note by the time she was medically examined on 12 May by the sexual assault ‘team’ she had “urinated, vomited and had something to eat” but she had not “showered” or defecated. She had not washed her mouth or cleaned her teeth since the alleged assaults. The black panties, to which I referred, had been recovered for examination.
A forensic sexual assault examination included vulval swabs and smears, low vaginal swabs and smears, high vaginal swabs and smears, perianal swabs and smears, a swab of the right nipple and cut hair from her pubic region, as well examination of a sanitary pad. Exhibit G, the certificate tendered pursuant to s 177 Evidence Act 1995, revealed that in respect of testing upon the buccal swab of the accused and the testing of all the smears and swabs there was no DNA profile developed from the high vaginal swab and no semen was detected in any of the vaginal and anal smears and swabs. The swab of the right nipple shows a mixture of the DNA profile of the complainant and a DNA profile consistent with that of the accused. No semen was detected in the clump of hair taken from the complainant. No semen was detected on the sanitary pad taken from the complainant, although I accept of course it is not the same sanitary pad, if she had one, that she would have been wearing on the night of the 10 and the early hours of 11 May.
The DNA profile the complainant was a major contributor and could not be excluded from the “tape lift” undertaken by the crime scene officer upon the black underpants, to which I earlier referred. No DNA profile of the accused was located on that item. Based upon the various scientific and medical examinations, making allowance from the time that elapsed between the relevant events and subsequent medical examination and samples, it cannot be established independently of other evidence in the case, such as the lay people, that the accused had penile penetration of the complainant. Or that he bit her nipple. The medical examination of the complainant on 11 May and the report of Dr Perl is consistent with the complainant, at the time of the alleged assaults, being affected by a combination of methadone and Xanax, perhaps including also other drugs and other alcohol and drugs that she had taken although there is no evidence of methylamphetamine. Her drowsiness at the time of her first medical examination, which occurred at 4pm on 11 May 2012, was thought to be “due to drug ingestion”. It was thought that it could probably be of a “narcotic” nature, that is the drugs that she had ingested, because she was responsive to a particular medication. The urinalysis revealed the presence of benzodiazepine that is consistent with Xanax, methadone, but negative to cannabinoids, cocaine, opiates and amphetamines. Her hospitalisation from 11 May until 17 May 2012, on my reading of the information, was not as a result of injury or harm suffered as a result of sexual assault but for other reasons.
The crime scene officer, Senior Constable Langsley examined blankets associated with those said to be used by the complainant and other items of bedding. She examined a grey blanket and photographed it using an ultraviolet light source as well as using that source and other items. She located a small white stain on one side of that grey blanket and conducted a test with what are called “KM strips” on the stain. The result was negative. A KM strip is a presumptive test for semen. Further examination revealed no other relevant stains and other items. She also examined the black underpants as I have earlier explained.
This brings me back to the third area of the evidence, the important area of the evidence in one respect for proof of count 1a and count 2. This is the evidence of the accused’s admissions. Unfortunately, for those that are sitting in court with me now I need to go through these in some detail because it is important that I do so to explain the ultimate decision I have reached in relation to this matter. I propose to quote some of the accused’s admissions by reference to the question numbers. Question 47: “Shall I take you down to the park and give you a root (for money)?” Question 48: “Like I’ve had sex with the lady I’ll have to admit that but it’s not - it’s not in the wrong, it’s in the wrong sort of thing.” Question 77: “We scored ice. We went down to the park at Woolloomooloo, we had sex.” Question 78: “Down by the Matthew Talbot.”
In reference to the ice, Question 92: “(We) injected it.” Question 94: “The general idea was if I shouted her a shot we’d have sex.”” Question 95: (The shot cost) “two lots of 50.” Question 100: “We just had sex parted company and I walked back up to the Crest Hotel.” Question 101: (We had sex) “just on the grass near the toilets there is a block of toilets there.” Question 102: “Near Woolloomooloo Police Station.” “I know it’s pretty close to Woolloomooloo Police Station.” Question 105: “It’s where they’ve got all the blankets and all the stuff there where a lot of the homeless people stay.” Question 106: “Yeah there, because we grabbed some blankets out of there.” Question 107: “One of the wheelie bin things.”
I note inter alia the accused said, “I’m going to kill this sheila when I see her again” being a reference, of course, to the complainant. Question 109: “Because this is pissing me off, this is going back over 2 years ago.” Question 112, “She’s a slut.” Question 114: “She got her money for drugs off of me with sex.” Question 131: “We was lying on the ground.” Question 133: “She took her clothes off.”
And then we turn to a series of questions between question 141 to question 158 where he said, “(We) had sex”. “I thought it went quite well at first. What do you mean what sort of sex did I have...straight on top of her...100 mile an hour that was it.” When asked if he had inserted his penis inside her he said, “Mm.” He was asked if he ejaculated he said, “Yeah.” When asked if it was inside of her he said, “Yeah.”
He was asked this question, “Is it possible that you didn’t that you ejaculated somewhere else?” Answer, “Oh this is getting a bit shit, isn’t it? I was pretty wasted on ice.” When asked if it was possible that he didn’t ejaculate inside her he said, “Quite possible.” He said he did not use any protection. When asked if he bit her, touched her anywhere else he said, “I think I bit her on the tits.” He later said, question 158: “I didn’t bite her to bite her nipples off, I’m not talking like that.” Question 160: He said, “I mean, I bit her on the tits.” He was asked if it was in her vagina that he penetrated, he said to the police, “How else do you have sex?” When told that the definition of “sex” (sic) was wide “according to legislation”, he said: “I’m an old bastard hey listen I’m an old bastard and I do it originally.” He was asked how long this went on for he said in answer to question 167, “I’m not sure.” He said, “Because we was both on the ice” (to question 168). He did not know whether he touched himself, he “honestly” did not know et cetera.
He gave further answers about what had happened in relation to how he felt. He said that he felt “horny” because of the ice that he had taken (question 177). He said the ice “made me feel like my body was going 100 mile an hour (question 190). He also said that he had been “drinking all day” and that the ice had “sort of sobered me up, if you get what I mean” (193).
Then there is another series of questions, between question s 197 and 208, where he said amongst other things, “I turned around and said to her, “I’ll shout you a shot if we can go and have a root.”” He said, “It was a mutually agreed thing”. She brought up the idea of “exchanging ice for sex” said in answer to question 203: that she said, “Do you want to shout me a shot and I’ll have sex with ya?” He said they both discussed and agreed to have sex et cetera.
He also said that in the interview that he did not speak to anyone else at the scene and he was definite about that. He said that he had seen her since at the Poya Inn, the day he got kicked out, which accords with the evidence of the police officer. He went on to say that in the interview that where they had had sex was at a park near where Russell Crowe kept his boat “Oscar”, which I take to mean the Finger Wharf at Woolloomooloo, but he later agreed that it was possible that he was wrong in relation to that particular recollection (cf Q101-102).
There can be no doubt turning back to the totality of the evidence that by the time the complainant and the accused arrived at the park where they were to sleep the night the complainant particularly was adversely affected by a combination of prescribed drugs or drugs that were prescription drugs that she had taken illegally. And I am satisfied that she was difficult to understand and was very drowsy.
There is no doubt that the evidence established the accused lay down with her under the blankets and I am satisfied on the evidence that he endeavoured to engage in sexual activity with her which included touching her breasts. There is no doubt that the accused removed part of her clothing, the extent to which he was assisted by the complainant is difficult to identify. I do not exclude the reasonable possibility that she may assisted him in that regard although she was substantially affected by those substances she had ingested.
As far as I understand the matter, and I have taken into account everything that has been said by the accused in his interview about this aspect of the case, on the totality of the evidence I am satisfied ultimately that the complainant was in no condition to consciously or voluntarily consent to sexual activity whilst she was laying down in the park. Although I accept that she may have suggested to the accused that they go down to the park to sleep.
Ultimately, I have reached the conclusion, however, particularly bearing in mind the confirmatory nature of the scientific testing, that is specifically the development of the DNA profile or a partial DNA profile of the accused from the swab taken from the right breast of the complainant, that the accused touched the complainant’s breast in some manner consistent with what is conceded in submissions to be sexual activity undertaken by the accused with the complainant in some form. I do not regard the accused’s admission of penile penetration of the complainant’s vagina as reliable or even truthful even though it is a significant representation against interest by him. I earlier referred to the observations I made about the issue of reliability, the use that might be made of the admission and the general assessment of it in the course of the judgment relating to the admissibility of the record-of-interview. I concluded ultimately that the condition of the accused at the time of the interview did not affect the reliability of the representations that he made to the police in the course of the interview. This was a decision made in the context of assessing the probative value of the evidence, not an assessment made of the ultimate decision that needs to be made by a tribunal of fact. I concluded that it was fair for the interview to be admitted and that the Crown had satisfied the test arising under s 85(2) Evidence Act 1995, because it was quite clear to me that the accused was alert and astute to the extent that he was able to answer questions asked by the investigating police and construct answers that he thought suited his cause. He certainly remembered the complainant at the time of the interview.
They certainly knew each other from meeting at the Haymarket Centre and he had contact with her subsequently at the Poya Inn. This is an unusual situation for the accused, the alleged rapist as it must fairly be described, being in the company of the complainant in circumstances where there appears on the evidence of the complainant, the account given by the accused in the interview and the observations of the police, there was no complaint by the complainant about being in the accused’s presence. That shows to me that either neither person had any memory of the alleged events at the park, reflecting upon the intoxication of the two of them, or neither person or one of the people present, either the accused or the complainant, had no concern about what had happened. It is to be fairly said, bearing in mind both people have been living on the streets and in various shelters in the Kings Cross and the City area over a number of years before 2012, were known to each other in a number of ways. The accused, himself, was an habitué it would seem of the Crest Hotel in Darlinghurst Road and from what I understand of the complainant’s evidence, and particularly the evidence of Mr Waters, the complainant regularly occupied a seat at a bus stop on Darlinghurst Road not too far away from the Crest Hotel.
As I observed in the earlier judgment, it is clear that the accused’s understanding of the character of the allegation brought against him, having known the complainant for a range of reasons and having some memory of having slept in a park with her, sought to deflect the police inquiry by asserting that sexual activity had taken place and that it was consensual. He obviously made a clear admission of penal penetration of the vagina but there is no objective evidence to support either the fact of penetration and/or the fact of ejaculation which he initially claimed with some confidence to have occurred, without the use of any protection. Although he accepted the possibility that it did not occur. Of course, whilst we have no scientific or medical evidence in relation to such matters but it is the case of which I can take judicial notice of the fact that a feeling of ejaculation by a male person does not constitute a requisite condition of the deposit of semen in the vagina. Semen can be projected into the vagina during the course of penile penetration without the accused claiming to have been able to experience ejaculation. Evidence of this character has been given in my presence a number of occasions before.

It is to be borne in mind, when dealing with the prisoner’s account, noting the matters raised in submission on his behalf pointing to errors of detail that was supplied by him, that the accused was not a reliable historian in this respect or even a truthful historian in this respect, as he was not a reliable historian when spoken to by police or medical staff.
As it transpired it has been demonstrated to my mind that particular admissions made by the accused in the course of the interview were either completely untrue or completely unreliable. Those admissions included the circumstances in which he met the complainant on 10 May, the place at which he met her, the provision to her of “ice” and the use of ice by him, the fact that he claimed that he was “horny” because he had taken ice, the fact that he claimed that after he woke up in the morning he was with her for a period of time before he walked back to the Cross. All of these matters are not true. The fact that his claim of ejaculation, admittedly qualified by his later answers, has not been established from scientific evidence and, of course, the fact that his claim of biting her on the tits, admittedly not “to bite her tit off”, was not confirmed by any relevant injury observed upon her are other matters to take into account.
The admission of penile penetration and the biting of the nipple was a conscious admission by him, as I found in the earlier judgment, but it was also a conscious admission designed by the accused to deflect the police investigation. In fact, ultimately it had the opposite effect, giving a proper reason for the police to have him charged and, as it turned out, for him to be refused bail for the period of time between his arrest and the current trial.
It is quite clear when one watches the interview that the accused thought by making the admissions he made, that he would be released and he would be able to go off and drink some more alcohol to address the withdrawal symptoms that he started to exhibit in the course of the interview and which subsequently required him to receive medical treatment and hospitalisation. At least that is a reasonable possibility.
As I just said a moment ago, when I admitted the evidence, whilst I am satisfied the prosecution had satisfied the requirements of s 85(2) of the Evidence Act and I am satisfied that it was not unfair to admit the interview, that did not mean that I had conclude that the accused was sober, was an accurate historian or was a reliable storyteller. The very detail he gave and the character of the intercourse that he described having with the complainant, had characteristics of exaggeration both as to this performance when performing the intercourse and her reaction to it.
In assessing the accused’s admissions, his condition at the time of the interview and what in my view can be seen to be his motives in cooperating with the interviewers and continuing with the interview, even though they gave him opportunities to say that he did not want to continue in the interview, it is also to be noted in relation to this matter that in recalling the relevant events he was being asked, having been a regular drinker of alcohol in the manner that the evidence reveals in the period of time between 10 May and 4 March just short of 10 months later, that he may have had a real memory of some of the relevant events in relation to basic matters, but there is a real question mark about his capacity to remember details of an event that occurred 10 months before. An event about which he thought so little it would seem that he would find himself in a small room at the Poya Inn with the same complainant not concerned with sexual activity, but apparently concerned with what I understand to be drinking alcohol. He gave the interview in circumstances where up until the time of the interview for a number of years he had on a daily basis been drinking copious quantities of alcohol with hospitalisations for treatment for injuries and illness. The contemporaneous records reflecting upon a history of sporadic use of medications. It seems to me with respect that the histories he gave to the hospital in the medical records, which are an exhibit in this trial, could not be regarded as ex post facto reconstructions as I viewed the statements the accused made about what he would do if he had been told that he could get legal advice. As fate would have it, having regard to the version he gave, the objective scientific and other investigations revealed nothing to confirm the truth of what he said about penile penetration or biting the complainant on the breast. The civilian evidence so far as it goes in terms of its reliability and accuracy does confirm that contact with the accused was had with the breast of the complainant, in the course of engaging in sexual activity or attempted “sexual” activity, the precise detail of which cannot be established such as to establish the fact of intercourse.
I note one piece of evidence, that of Ms Cargill, that the accused appeared to be masturbating himself at a time when the complainant was dishevelled and he was fondling her breast. This may, as a reasonable possibility, reflect upon the state of his intoxication and his lack of capacity to have sexual intercourse of the character to which he admitted in the interview.
Thus, in all, these circumstances I conclude that even though he may have had penile penetration of the complainant at some point during the night that he slept with her, it is at least reasonably possible that his critical admission of penile penetration of the complainant’s vagina was not true. Likewise, it is reasonably possible that his claim of biting the complainant’s breast in the character of an exaggeration was not true. However, considering the observations of the accused and his activity with the complainant under the blanket and the other observations of Ms Cargill and Ms Murray, I am satisfied beyond reasonable doubt that in the context of wishing to engage in the sexual activity with the complainant in circumstances where she had no capacity to consent he indecently assaulted her by touching her on the breast at least once in circumstances where he knew she was not consenting. In my view, because he had no reasonable grounds for the belief that the complainant was in fact consenting in accordance with the direction of law that I had given myself in respect of that particular matter. Thus in the circumstances of the case I have concluded, as I foreshadowed, that I should acquit the accused in relation to count 1a and count 2 but find him guilty in relation to count 1b. Can you stand up please, Mr Pocknell?
Mr Kevin Anthony Pocknell, in relation to count 1a, the count alleging that you on 10 May 2012 or 11 May 2012 at Woolloomooloo in the State of New South Wales did have sexual intercourse with CS without the consent of CS knowing she was not consenting, I find you ‘not guilty’.
In relation to the alternative count that you, on 10 May or 11 May 2012 at Woolloomooloo in the State of New South Wales, did assault CS and that you at the time of such assault did commit an act of indecency upon her, I find you ‘guilty’.
In respect of count 2, the count alleging that you on 10 May 2012 or 11 May 2012 at Woolloomooloo in the State of New South Wales did assault CS and that you at the time of such assault did commit an act of indecency upon her, I find you ‘not guilty’.

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Decision last updated: 19 August 2015

Medium Neutral Citation:	R v Pocknell [2015] NSWDC 175
Hearing dates:	24-26,30, 31/03/2015
Decision date:	01 April 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Count 1b - Guilty
Catchwords:	Criminal – trial by judge, sexual assault
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	Fleming v R [1998] 197 CLR 250
Category:	Principal judgment
Parties:	Director of Public Prosecutions Kevin Anthony Pocknell - Accused
Representation:	Counsel: Ms Seeto - Crown Mr Conwell - Accused Solicitors: Director of Public Prosecutions Nyman Gibson Miralis Lawyers - Accused
File Number(s):	2013/66506