R v Sutton - [2021] ACTSC 37

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sutton
Citation:	[2021] ACTSC 37
Hearing Dates:	22-25 and 28-29 September 2020
Decision Date:	29 September 2020
Reasons Date:	17 March 2021
Before:	Loukas-Karlsson J
Decision:	The accused is not guilty on all counts.
Catchwords:	CRIMINAL LAW – JURISDCITION, PRACTICE AND PROCEDURE – Trial – Trial by judge alone – Sexual intercourse
without consent
Legislation Cited:	Crimes Act 1900 (ACT) s 54 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 57, 72, 80B, 80C, and 80D Evidence Act 2011 (ACT) s 66 Supreme Court Act 1933 (ACT) ss 68B and 68C
Cases Cited:	Banditt v The Queen [2005] HCA 80; 224 CLR 262 Casey v The Queen [2020] NSWCCA 177 De Silva v The Queen [2019] HCA 48; 375 ALR 1 Edwards v The Queen (1993) 178 CLR 193 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Liberato v The Queen (1995) 159 CLR 507; 59 ALJR 792 MZ v The Queen [2020] ACTCA 41 Pereira v Director of Public Prosecutions (1988) 63 ALJR 1; 35 A Crim R 382 R v Connors (No 2) [2016] ACTSC 333 R v DM [2010] ACTSC 137 R v Droudis (No 14) [2016] NSWSC 1550 R v Jovanovic (1997) 42 NSWLR 520; 98 A Crim R 1 R v Lopez-Alonso (1996) 86 A Crim R 270 R v Markuleski (2001) 52 NSWLR 82; 125 A Crim R 186 R v Masina (No 3) [2020] ACTSC 154 R v Mulcahy [2010] ACTSC 98 R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 R v Pikula [2020] ACTSC 265 R v Song (No 2) [2017] ACTSC 148 R v Stevens (No 2) [2017] ACTSC 296 R v Storey (1978) 140 CLR 364; 22 ALR 47 R v Sutton (1986) 5 NSWLR 697 R v Tang [2019] ACTSC 4 Scott Fell v Lloyd (1911) 13 CLR 230 WGC v The Queen [2007] HCA 58; 233 CLR 66 Zoneff v The Queen [2000] HCA 28; 200 CLR 234
Parties:	The Queen (Crown)
Patrick Sutton (Defendant)
Representation:	Counsel
S Janackovic (Crown) H Selby (Defendant)
Solicitors
ACT Director of Public Prosecutions (Crown)
File Number:	SCC 120 of 2019
LOUKAS-KARLSSON J:
Introduction

1. This is a judge-alone re-trial conducted pursuant to s 68B of the Supreme Court Act 1933 (ACT) (Supreme Court Act). Mr Patrick Sutton (the accused) signed an election to be tried by judge alone on 8 May 2020.
2. The accused was tried by jury before Elkaim J in December 2019. He was found not guilty on three counts and no verdict was returned on the remaining five counts. The prosecution has proceeded to re-try the accused on the remaining five charges.
3. The accused was charged with five counts of sexual intercourse without consent, contrary to s 54 of the Crimes Act 1900 (ACT) (Crimes Act), on an indictment dated 3 February 2020. The particulars of the offences are as follows:

(a)

Count 1: The accused is charged that, on a day unknown between 1 January 2017 and 31 December 2017, at Canberra in the ACT, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting.

(b)

Count 2: The accused is charged that, on a day unknown between 1 July 2017 and 1 January 2019 in Canberra, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting.

(c)

Count 3: The accused is charged that, on a day unknown between 1 July 2017 and 1 January 2019 in Canberra, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting.

(d)

Count 4: The accused is charged that, on 15 March 2019 or 16 March 2019 in Canberra, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting.

(e)

Count 5: The accused is charged that, on 15 March 2019 or 16 March 2019 in Canberra, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting.
4. On 22 September 2020, the accused was arraigned and pleaded not guilty to all charges. On 29 September 2020, I found the accused not guilty on all counts and indicated that my reasons would be published at a later date. The reasons follow.

Directions

5. Section 68C(2) of the Supreme Court Act requires that the judgment in a judge-alone trial include the principles of law applied and the findings of fact on which the Court has relied. Section 68C(3) requires that where a warning or direction is required by a Territory law to be given, or a comment to be made, to a jury in proceedings, the Court in a judge-alone trial must take the warning, direction or comment into account when considering the verdict. I approach these statutory obligations in accordance with the statements made in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [6] and [52].
6. I adopt the following directions, set out by Nield AJ in R v Mulcahy [2010] ACTSC 98 (Mulcahy), in relation to my role in the present case. The directions have been adopted by Refshauge J in R v DM [2010] ACTSC 137 and Mossop J in R v Song (No 2) [2017] ACTSC 148; see also R v Connors (No 2) [2016] ACTSC 333 at [6]-[18] and R v Droudis (No 14) [2016] NSWSC 1550 (Droudis). I have also discussed relevant directions in R v Tang [2019] ACTSC 4 (Tang) and R v Pikula [2020] ACTSC 265. The relevant directions as set out in Mulcahy and Droudis are as follows.

Onus & Standard of Proof

7.       A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law: see Mulcahy at [13]. The fundamental rules which govern a criminal trial are these.
8.       The prosecution bears the onus, burden, or obligation, to use three interchangeable words, to prove the guilt of the accused. The prosecution has asserted that the accused has committed a criminal offence, therefore the prosecution must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence: see Mulcahy at [14] and Droudis at [24].
9.       The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt: see Mulcahy at [15] and Droudis at [25].
10.     The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty: see Mulcahy at [16] and Droudis at [23].

Judge of Facts & Law

11. In addition to the fundamental rules which govern a criminal trial, the following rules have been developed. As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will: see Mulcahy at [18].

General Directions on Witnesses

12.     I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence: see Mulcahy at [19].
13.     I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally. I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses: see Mulcahy at [20]-[21].
14.     I am not required by any rule of law, logic, or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance: see Mulcahy at [22].
15.     I adopt the foregoing directions in the present case.

Elements of the Offences

16. Section 54 of the Crimes Act relevantly provides as follows:
54 Sexual intercourse without consent

(1) A person who engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.
(2) A person who, acting in company with any other person, engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 14 years.
(3) For this section, proof of knowledge or recklessness is sufficient to establish the element
of recklessness.
17.     In a criminal trial, the prosecution must prove the essential elements of the charge beyond reasonable doubt.
18.     The elements of the offence are:

(a) the accused engaged in sexual intercourse with another person;
(b) the accused intended to engage in sexual intercourse with another person;
(c) the other person did not consent to the sexual intercourse; and
(d) the accused was reckless as to whether the other person was consenting.
19.    At common law, a person can be reckless as to another person’s consent in
circumstances where a person realised the risk that the other person was not consenting and proceeded anyway (advertent recklessness), or where a person failed to consider whether the person consented (inadvertent recklessness). Both forms of recklessness are encompassed within s 54: see, for example, R v Masina (No 3) [2020] ACTSC 154 at [31], citing Banditt v The Queen [2005] HCA 80; 224 CLR 262 (Banditt) and R v Stevens (No 2) [2017] ACTSC 296.
20.     Dates in charges are not material unless a date is “an essential part of the alleged
offence”: WGC v The Queen [2007] HCA 58; 233 CLR 66 at [155]-[157].

The Prosecution Case

21.     It was agreed that the accused and the complainant entered into a relationship around 2015, when the accused and the complainant were 17 and 16 years of age respectively.
For the next 3-4 years, the relationship was “on again and off again”. The relationship

came to an end in October 2018, but they remained in contact and continued to see
each other.
22.     During the course of the relationship (that is, between 2015 and 2018), the complainant
would often stay over at the accused’s house and they would engage in consensual
sexual activity.
23.     The prosecution case was that, on three separate occasions, the complainant was asleep and woke up to find the accused engaging in sexual intercourse with her.

Count 1

24. Count 1 reflects the first-in-time incident which occurred on an occasion in 2017. The complainant believed it occurred around the middle of 2017. The complainant alleged
that, on one day in 2017, she had been sleeping at the accused’s house and went to
sleep with the accused in his bedroom. She later woke, on her side, to find the accused penetrating her vagina with his penis from behind. The complainant asked the accused what he was doing, and he responded that they were having sex. The complainant felt confused, said nothing, and lay limp until the sex ceased. The complainant stated that, several days later, she confronted the accused about this sexual encounter. The accused told her that he had sex with her whilst she was asleep, but he thought she was awake; he apologised to her and promised that it would never happen again.

Counts 2 and 3

25. Counts 2 and 3 reflect the second-in-time incident which occurred on an occasion between 1 July 2017 and 1 January 2019. The complainant gave evidence that she
and the accused went to the accused’s house and fell asleep in his bed. The
complainant alleged that she later work, on her side, to the accused penetrating her vagina with his penis from behind (Count 2). The complainant pretended to be asleep and began to quietly cry. She eventually pretended to roll over in her sleep onto her back to try and disengage the accused from her body. The accused then placed his
hands around the complainant’s throat (this action was the subject of an acquittal at
the first trial). The complainant then rolled back onto her side and the accused
reinserted his penis into the complainant’s vagina and continued to penetrate her; the
complainant pretended to be asleep (Count 3).

Counts 4 and 5

26. Counts 4 and 5 reflect the last-in-time incident, which occurred on 15 or 16 March 2019.
After a night out with some colleagues, the complainant went over to the accused’s
house. They went to the accused’s bedroom and the complainant fell asleep. The
complainant later woke, on her side, to the accused digitally penetrating her vagina with
his fingers from behind. The accused then penetrated the complainant’s vagina with
his penis. The accused swapped between engaging in digital vaginal intercourse (Count 4) and engaging in penile vaginal intercourse (Count 5) for approximately half an hour. The complainant pretended to be asleep and was scared.

Principal Issues

27. It was accepted by the accused that the complainant and the accused had an ongoing sexual relationship, and it was not challenged that the sexual incidents occurred. It was
the accused’s position, however, that all of the sexual intercourse between the accused
and the complainant was “wholly consensual and known by both of [them] to be so” (T
23.15-19).

Applications to Lead & Exclude Evidence

28. There were three applications:

(a) The prosecution sought to lead evidence of an act of choking, which was the subject of an acquittal at the first trial, for limited purposes.
(b) Defence counsel made an application to exclude the accused’s record of
interview.

(c) Defence counsel made an application to exclude the pre-text phone call between the accused and the complainant.
29. The application by the prosecution is discussed below. The applications at (b) and (c) were withdrawn by defence counsel on the final day of trial, and the pre-text phone call and record of interview became part of the evidence in the trial.

Evidence of Choking

30. In relation to the first application, I admitted the evidence in relation to the act of choking in between the occurrence of Counts 2 and 3 and provided ex tempore reasons for my decision. This evidence was admitted for two limited purposes:

(a) firstly, to delineate between Counts 2 and 3; and
(b) secondly, to maintain consistency between the disclosure to the complainant’s
father and Count 2 for the purposes of the complaint direction.

31. Also relevant to this application was that the prosecutor, Ms Janackovic, gave an undertaking not to cross-examine the accused in relation to the choking incident that was the subject of an acquittal.

Tendency Evidence

32. The prosecution relied on tendency evidence that:

(a) the accused had a tendency to have a sexual interest in the complainant; and

(b)

the accused had a tendency to act upon that sexual interest by engaging in sexual intercourse with her while she was asleep or appeared to be asleep.

The Pre-text Phone Call

33.     On 21 March 2019, the complainant attended Winchester Police Station where she made a phone call to the accused that was recorded by police.
34.     In the phone call, the accused states that he is at work and outside for a short break.
The complainant says she wants to talk about “Saturday night” (actually Friday night
and Saturday morning) and asks the accused what he remembers happening. He
states that he was “just a little bit touchy”. The following exchange then takes place:
C: What do you mean by “touchy”?
A: That’s what I remember. Oh, I was just like, when I was giving you a back massage, I
remember, like, touching your butt and [I] stopped myself. It was a little bit too much.
C: Is that all?
A: Mm-hmm.
C: Are you sure?
A: Yeah, why is that?
C: I’m just wondering ‘cause I’m a bit confused.
A: Okay. Um, is there anything else you want to talk about?
C: Um, I just feel like you did more than that.
A: Oh, really?
C: Is that all you remember?
A: Yeah. Yeah, ‘cause I fell straight asleep after. I was that tired. And then I woke up at, like, three o’clock. And I was a bit, like, fucking weird when I woke up. I don’t know, just felt a bit
uncomfortable because I thought I was fucking dreaming and shit.
C: Dreaming about what?
A: Oh, I just thought I was dreaming I was having sex with you, and I woke up and I felt really
fucking weird. It was like – oh, I don’t know. It was like – almost like a lucid fucking dream,
and woke up and I was like – I, like, felt real sick. And then that was about it. Why is that?
C: I’m just wondering. I’m just confused.
A: Okay. Is everything all right?
C: Yeah.
A: Not really. I can tell you feel – did I do something else? ‘Cause I remember I used to like – sometimes in my sleep, I would hump you and stuff beforehand, which is a bit
uncomfortable.
C: Yeah.
A: What’s wrong?
C: Nothing.
A: No, no, no. If I’ve done something wrong, tell me, man.
C: I don’t know. I’ve just been thinking about the times before when you’ve –
A: What I’ve – oh. Like, what do you mean, like, rape you?
C: Pardon.
A: Like, what, like, are you thinking, like, I raped you or something?
C: I don’t know. I just thought that might have happened again.
35.     The complainant goes on to say that she remembers the evening differently and tells the accused that she remembers him touching her. The accused states that he
remembers “touching her butt” and says he thinks he touched her vagina once. He then
says he remembers touching her once and then stopping himself. The complainant states that she feels the accused is not telling the truth. The accused reiterates that
that’s what he remembers but states, “well, if you feel like I’ve done something else,
then I may have.”
36.     The complainant tells the accused she has taken the day off work and he asks her a number of times if she is alright. He also asks if he can see her that night, and she
responds, “possibly”. She states that she wants him to stop texting her and she says
she doesn’t know if she still wants to see him.

The complainant states that she doesn’t think he is telling the whole story. The accused
responds:
That’s not true. I’m just trying to think, sorry. It’s Thursday now and I’m at work thinking. Well,
if I’ve done something wrong then I’ve done something wrong. I just don’t think I have, and
if I have, it’s an extreme worry because I don’t remember doing something fucking wrong –
then that’s not okay, like, seriously.

38. The accused goes on to say:
Well – ‘cause I remember, like – ‘cause I literally thought – ‘cause I woke up and I’m like, “Did we have sex last night?” and you’re like, “Mm-hmm”. ‘Cause I literally thought, like, we
were having sex, ‘cause then – ‘cause I woke up with an erection and stuff, and I saw, like,
your skirt was open – ‘cause I couldn’t go back to sleep after that ‘cause I was just thinking,

like, “Something just happened”.
39.     The conversation continues, and the complainant agrees that she thinks the accused had sex with her when she was at his house. The following exchange then occurs:
A: Fuck. Ah, not this shit again, man. Oh, for fuck’s sake. Mm-hmm. I think I’m gonna have
a nervous breakdown. Fuck. Have I done it again?
C: Done what again?
A: Raped you?
C: Well, I was asleep.
A: Mm-hmm. Fuck me. What the fuck did I do, …? Are you okay?
C: Yeah.
40.     The conversation continues with the accused asking if he can still have contact with the complainant and where they go to from there. He also asks what she will do about her car registration and states he has money for her. The complainant says she is unsure if she still wants to see him and needs time to think about things; she also tells him not to worry about the money for the car.
41.     The complainant then states she needs to go, and the phone call is ended.

Oral Evidence

Evidence in Chief Interview of the Complainant – 20 March 2019

42.     A record of the evidence in chief interview between the complainant and First Constable Joel Kirby on 20 March 2019 was tendered and became Exhibit 1.
43.     In the interview, the complainant stated that she was sexually assaulted by her ex- boyfriend (the accused) on early Saturday morning (16 March 2019). She stated that she had been out drinking with some co-workers on Friday night and decided to go to
the accused’s house because she didn’t have a key to her place. She further stated
that she took a taxi to his house and arrived at approximately 12.30am.
44.     The complainant stated that, after arriving at the accused’s house, they hung out for a
bit and then the accused asked her if she wanted him to sleep on the couch or in the
bed with her, and she replied, “in the bed with me”. She went to sleep and woke up

around 2am to find that the accused was penetrating her vagina with his fingers. He
then penetrated her vagina with his penis.

The complainant stated that she didn’t say anything because she was too scared, and
then she fell back to sleep. In the morning, she stated that the accused acted like
nothing had happened, and she didn’t want to say that she knew what happened, so

she acted as if everything was fine. She stated that the accused brought her breakfast
and then she went home.
46.     The complainant gave further details about her night out and stated that, by around 10.30pm, she had not had any contact with the accused that night. She stated that she
realised she didn’t have her key “probably halfway through the night” and was trying to

think of where she could stay. She stated that this was when she messaged the
accused and asked if she could stay, and he said yes.
47.     The complainant stated that her parents and her brother were at her house, but she was too scared to wake them up.
48.     In relation to the assault, the complainant stated that she was lying on her side and
woke up to find the accused’s fingers inside her vagina. She stated that he then put his

penis inside her vagina and continued doing that for about half an hour. She stated that
she pretended to be asleep because she was scared.
49.     The complainant stated that she felt scared, helpless, and sick, and that the penetration hurt. She stated that he continued swapping between his penis and his fingers, and he
continued until he ejaculated inside her. The complainant stated: “I wanted to tell him I
knew that he had done that, but I just couldn’t bring myself to say anything”.
50.     The next morning, the complainant went outside to have a cigarette and the accused
woke up and decided to join her. He asked her: “Did we hook up last night?” The

complainant felt as though he was trying to see if she knew what had happened the
night before.
51.     The complainant stated that this was not the only time the accused had had non- consensual sex with her since their relationship ended in late-2018. She stated that, approximately one month after their breakup, she went over to his house to hang out and decided to stay over. She woke up during the night to find his penis in her vagina. She stated that the accused then proceeded to choke her. The choking allegation, as mentioned earlier, is the subject of an acquittal at the earlier trial before the jury.
52.     On this occasion, she stated that she didn’t open her eyes, but she started to cry. She

stated she could feel his stomach on her back and his hand on her leg. She stated that
she had felt scared, vulnerable, and sick.
53.     The complainant stated that she felt as though she didn’t have any control over the
situation because she thought he would have hurt her if she tried to stop him. She stated that she thought the accused realised she was crying and then stopped. She also stated that she rolled onto her back and that stopped the accused from continuing.
54.     The complainant stated that, while she was on her back, the accused choked her (as discussed above), and she was struggling to breathe. She stated that she began crying harder, and the accused stopped. She stated that she was crying quietly. She then rolled back onto her side and the accused began penetrating her vagina with his penis again.
55.     The complainant stated that, on this occasion, she had changed into her pyjamas before she went to bed. When she woke up during the night, her underwear and pants were around her knees. She was unsure whether the accused ejaculated on this occasion.
56.     Following this event, the complainant told her parents and her best friend, HW. She
stated that her parents didn’t believe her, but her dad did tell her to go to the police,
and she told him she didn’t want to.
57.     The complainant stated that there had been one other occasion on which the accused had initiated sexual intercourse with her while she was asleep. She stated that she
didn’t remember much, but that is was probably in 2017. She stated that that occasion
had been the first time it occurred.
58.     On this occasion (the 2017 occasion), the complainant stated that she was staying at
the accused’s house and woke up to find his penis inside her vagina. She opened her
eyes and asked what he was doing, and he said they were having sex. She stated that
she was confused and didn’t remember saying anything to him in response. She stated
that she “just let him continue”. On that occasion, the complainant stated that the

accused continued until he ejaculated. She then went back to sleep and she thinks he
went outside for a cigarette.
59.    The complainant stated that, following the first occasion in 2017, she had a conversation with the accused about what had taken place. He stated that this was probably a couple of days after the incident. She stated that the accused looked
surprised and “kind of shocked”. She stated that she asked the accused if he had had

sex with her while she was sleeping and he said that he had, that he thought she was
awake, that he was so sorry, and that he promised not to do it again.
60.    The complainant stated that she confronted the accused again after the second
incident. On that occasion, the accused stated that he was sorry, that it wouldn’t happen
again, and that he loved the complainant.
61.     The complainant stated that she and the accused had one further conversation about this topic, approximately one month after the second incident. During that conversation,
she told the accused that he can’t be doing that to people (that is, having sex with them while they are asleep) and he responded saying that he understood and that he wasn’t
going to do it again.
62.    The complainant further stated that she takes the contraceptive pill, as well as antipsychotic medication and medication for obsessive compulsive disorder (OCD).
She stated that the antipsychotic medication makes her “very drowsy and sleepy”.
63.     The complainant stated that, on one occasion when she spoke to the accused about having sex with her while she was asleep, he said that, if she ever went to the police,
they wouldn’t believe her because she has schizophrenia. The complainant stated: “so
it was the last time I confronted him about having sex with me while I was sleeping. I
just kind of mentioned that – like, “What if I go to the police with this?” and he just said that they wouldn’t believe me because of my mental illnesses and that he could just
say that I was making it up or that I was having a delusion.”
64.     She further stated that the accused had told her that he has friends who would bash
her if she went to the police. She stated that this made her feel like she didn’t have
anyone to go to.

Complainant’s Evidence (Jury Trial) – 3-5 December 2019

Examination in Chief (Jury Trial)

65.     At the first trial, the complainant’s evidence proceeded over the course of three days.
During this time, both of her evidence in chief interviews with police were played in court. The second evidence in chief interview, recorded in August 2019, was not tendered in the re-trial, as the subject of the interview was the conduct that was the subject of the acquittals in the first trial.
66.     During the re-trial, the complainant’s in-Court evidence in chief was played in court.
67.     In relation to Counts 4 and 5 (March 2019), the complainant gave evidence that she did not intend to have sex with the accused when she went to his house. She gave evidence that, when she came home on the Saturday morning, she did not tell anyone
what had happened at the accused’s house because she didn’t want to upset her
family.
68.     On Monday 18 March 2019, the complainant went to the hospital and was examined by Dr Brogan. On Tuesday 19 March 2019, the complainant went to the Belconnen
police station to make a complaint. She gave evidence that she didn’t want the same
thing to happen to anyone else, so she felt it was the right thing to do.
69.     In evidence in chief, the complainant was asked about her relationship with her friend, HW. The complainant gave evidence that she told HW about each of the incidents
“pretty soon after they happened”. She gave evidence that she “just told her [HW] that
he [the accused] had sexually assaulted me, and that was about as far as it went”. She stated that she did not provide further details to HW because she didn’t want to upset
her.
70.     The complainant gave evidence that, following the first time the accused had allegedly sexually assaulted her, she spoke to her father about the assault while at her friend
HW’s house. When asked to explain the circumstances behind this complaint, the
complainant stated the following:
We were at my house – well, [HW] and I went to my house and Patrick was there doing some
chores for my father and I was overwhelmed that everyone was there, including Patrick. And so I remember my mum asking me if what she had heard was true, that Patrick had sexually
assaulted me, and I didn’t want to answer because I was uncomfortable, so I decided to
leave and so I left. My parents asked [HW] to leave and they asked Patrick to follow me to
make sure I was okay. And then I walked to the O’Connor shops and I went into the public
bathroom and I was crying, and Patrick was there, and I called [HW] to come and pick me
up. And so then she came and picked me up, and by that time [HW’s mum] had rang [HW]
asking if we could go to [HW’s mum’s] house.
…
My father came and [HW] and [HW’s mum] went into a different room and my father and I
spoke about what had happened. He asked me if Patrick had sexually assaulted me and I
told him that he had.

The complainant stated that she couldn’t remember what exact words her father had
used, but she got the impression that he didn’t believe her.

72.     In evidence in chief, the complainant was asked about her response to each of the incidents. In relation to the first incident in 2017, the complainant gave evidence that
she didn’t go to police because she was “scared about the whole process” and she
“didn’t feel ready emotionally”.
73.    When asked why she slept in the accused’s bed on the second occasion
(approximately one month after their breakup), the complainant stated that she felt she should be able to share a bed with a friend and be respected. She stated that, on that
occasion, she also didn’t feel “ready emotionally” to go through with the process of
reporting to police.
74.     In relation to the third occasion in March 2019, the complainant gave evidence that she
went to the accused’s house because she did not want to wake up her family. She
stated that, once again, she felt she should be able to “share a bed with a friend and
not have them violate you”. When asked why she went to the police following this
occasion, the complainant state: “I think I just had enough”.
75.    The complainant was asked questions in evidence in chief about text messages between herself and her friend, HW, in relation to the March 2019 incident (see [320]- [323]). In these messages, HW asked the complainant if the complainant had told her new partner about what had happened with the accused. The complainant responded:
“No, I’m scared to tell her because she fucking hates him and would probably break up
with me if she found out I went to his”.

When asked why she didn’t go to her new partner’s place on the Friday night, rather
than going to the accused’s house, the complainant stated: “Because she was in
Gungahlin and it was a fair way from the city”.

77.     The complainant was asked questions about her diagnosis of schizophrenia. She gave evidence that she was diagnosed with schizophrenia in 2015, when she was in Year 11, and she had been seeing a psychiatrist for many years. Prior to the diagnosis of schizophrenia, the complainant saw a psychiatrist in relation to depression and OCD.
78.     The complainant stated that (as at 2019) she had been taking antipsychotic medication for four years. When asked how the antipsychotic medication has helped in terms of
her mental health, the complainant stated: “I think that it’s helped me a lot. I don’t have
delusions anymore and I don’t see things or hear things”.
79.     The complainant stated that she has been taking medication for OCD and depression since Year 8.
80.     The complainant confirmed in her evidence that, on all of the occasions alleged in the charges, she had not given consent to the accused to penetrate her.

Cross-Examination (Jury Trial)

81.     The complainant was cross-examined by defence counsel on a number of topics.
82. I interpolate here to note that the cross-examination was recorded at the previous jury trial and the recording was played before me. I note that I raised certain aspects of the cross-examination with defence counsel as they were, in my view, inappropriate (T 61 23/09/2020): see s 41 Evidence Act 2011 (ACT) (Evidence Act).
83.     The complainant was asked about messages she sent to her mother and HW about the accused giving her chlamydia. The complainant was asked whether, to her knowledge, the accused had any other sexual partners from the beginning of his
relationship with the complainant to March 2019. The complainant stated: “I’m not sure
if he did or not”. The complainant agreed that she used to check the accused’s mobile
phone.
84.     The complainant stated that she had reason to believe the accused gave her chlamydia because, when she was examined at the hospital in March 2019, she was advised she needed treatment for chlamydia. The complainant agreed that she was in another relationship from December 2018 and she could have acquired chlamydia through that relationship.
85.     Defence counsel then asked the complainant questions in relation to the layout of the
accused’s house and the complainant’s relationship with the accused’s mother. The

complainant agreed that, between late-2015 and the end of 2018, she frequently had
sex with the accused in his bedroom.
86.    The complainant agreed that the accused’s mother had been supportive of the
accused’s relationship with the complainant. She further agreed that, following a
conversation with the accused’s mother over Facebook after her 2017 complaint, the
complainant “cut her off”. The complainant agreed that, following the incident in March
2019, she spoke to the accused’s mother while the accused was out getting the
complainant breakfast; she agreed that she did not tell the accused’s mother what had happened. The complainant agreed that, earlier in the relationship, the accused’s
mother had asked her and the accused to keep the noise down when they were in the
accused’s room.
87.     The complainant was asked a number of questions in relation to the day in 2017 when
she became upset and walked to the O’Connor shops. It was put to the complainant
that, on that day outside the O’Connor shops was the first time the accused learnt of

the accusation that he had sexually assaulted the complainant. The complainant
disagreed that this was the case.

It was further put to the complainant that she was “making this up … from start to finish”.
The complainant disagreed.

89.     The complainant was cross-examined in relation to her sexual relationship with the accused. It was put to her that, at any point during the relationship, she could have ended contact with the accused.
90.     Defence counsel put to the complainant that, following the 2017 allegation of sexual assault, the complainant and the accused met in a park and had a conversation where
the complainant apologised for making the allegations and said: “I’m not sure what
happened”. The complainant agreed that she met with the accused but denied saying
those things.
91.     The complainant was asked questions about the beginning of her relationship with the accused. She stated that she did not recall the first time they had sexual intercourse.
92.     In the course of cross-examination, defence counsel tendered a note written by the complainant to the defendant. The note became Exhibit 6 in the re-trial.
93.    It was suggested to the complainant that the note was written in November or December 2018. The complainant disagreed and stated that she believed the note was written in the middle of 2018. It was agreed that the note was written at a time when the complainant was helping the accused to improve his writing.
94.     Defence counsel tendered a photograph of the complainant with the words “Pat owns” and a love heart (Exhibit 7 in the re-trial). The complainant stated that she was “not sure” if the words written on the photograph were written by her. It was put to the
complainant that the photograph was taken after September 2018; the complainant responded that she believed it was taken in the middle of 2018. It was further put to the complainant that the accused never made her scared; she disagreed.
95.     A further photograph was tendered by defence counsel (Exhibit 8 in the re-trial). The
photograph was taken in the accused’s bedroom by the accused. The complainant
posted it on social media on 14 December 2017.
96.     It was suggested to the complainant that, at December 2017, the complainant and the accused were actively sexually engaged. She stated that she did not recall.
97.     The complainant was asked a number of questions about the March 2019 incident and what she could remember about the events on the Saturday, when she left the
accused’s house.
98.     It was accepted that the complainant had been in a relationship with a new partner since December 2018, and that the relationship was ongoing at the time of the trial in December 2019.
99.     Defence counsel noted that the complainant had told police in March 2019 that she told the accused she had not slept with anyone since their breakup. The complainant responded in cross-examination that the accused knew she had slept with her new partner.

100.   The complainant was cross-examined about events in late-2018 and early 2019. It was put to the complainant that, on her birthday in December 2018, the accused arranged to take her out to dinner, and she stood him up. She stated that she did not recall that occurring. The complainant gave evidence that she spent the night of her birthday with her new partner.
101.  The complainant agreed that the accused tried to arrange relationship counselling for them in January and February 2019. When it was put to her that she never turned up, the complainant stated that the accused had never let her know it was happening.
102.  Defence counsel tendered a screenshot of messages from the accused to the complainant on 8 January 2019 confirming an appointment date later in January. When
it was put to her that she did know about the appointment, the complainant stated: “He

never sked me if I wanted to go beforehand. He just said, ‘We have it on this date’, and
I couldn’t go”.
103.  The complainant agreed that the accused made a further appointment that she did not turn up to. The complainant stated that she did not attend the second appointment

because she had work. It was put to her that she had not told the accused she wouldn’t
be coming, and she said she could not recall and wasn’t sure.
104.  Defence counsel asked the complainant a number of questions about her financial situation. She gave evidence that she worked in a dental clinic earlier in 2019 and had been receiving a disability pension during the time she and the accused were in a relationship.
105.  The complainant agreed that, during the relationship, the accused gave her gifts from time to time and he would occasionally purchase things at her request.
106.  There was cross-examination in relation to items purchased by the accused for the complainant and also in relation to her inheritance.
107.  Defence counsel tendered a two-page document that includes a handwritten table with three columns: purchase description, date, and price. The document became Exhibit

10 in the re-trial. At the end of the table, the document says: “Total owing debts of [the
complainant]” and “=3,572.36”.
108.  When questioned about the document, the complainant stated that she believed all of
the items on the list were gifts from the accused, except for “art supplies”, which she
stated she had paid him back for.
109.  The complainant agreed that she was not “sleeping with” the accused in January or
February 2019, when a particular handbag was purchased; she maintained that her understanding was that the bag was a gift.
110.  Defence counsel raised the fact that the complainant told police she went to the
accused’s house in March 2019 because she didn’t have her key to her house. The

complainant stated that she remembered telling police that and disagreed that it had
been a lie.
111.  It was put to the complainant that she had contacted the accused around one week before, on about 9 March 2019, and asked if she could stay at his place on the evening
of Friday 15 March. The complainant responded: “I don’t recall”. The complainant

disagreed with the statement that there was an outdoor key at her house that she could
have used.
112.  The complainant agreed that, on Friday 15 March 2019, the accused offered to sleep
on the lounge, but she said, ‘Come and sleep in the bed with me’. She stated that this
was not a sexual invitation.
113.  Defence counsel put to the complainant that, when they went to bed on that night, the accused gave her a back massage. The complainant stated that she did not recall. The complainant was asked if she remembered kissing between herself and the accused,
and she responded, “no”. She further stated that she did not remember telling Dr
Brogan that there had been kissing between them.
114.  It was then put to the complainant that, following the kissing, the accused put his penis
into her vagina for a short period of time, while she was “very much awake”. The
complainant disagreed with this.
115.  It was put to the complainant that her current partner was staying in Braddon with another friend in March 2019. The complainant agreed that that was the case, however, the complainant stated that she understood that her partner was in Moncrieff on the night in question.
116.  The complainant agreed that she stayed at the accused’s house on the morning of 16 March 2019 while he went to get her breakfast from McDonald’s Dickson. She agreed
that she could have rung home and asked for someone to pick her up.
117.  There was cross-examination in relation to alleged money owed to the accused by the complainant.
118.  The final subject of cross-examination was the fact that the complainant had alleged
that the accused had threatened to have her “bashed” if she told the police about the
sexual assault, and that he had told her the police wouldn’t believe her if she reported
it.
119.  The complainant disagreed that she moved her own underwear for the purpose of having sex with the accused.
120.   Finally, it was put to the complainant that, on 5 March 2019, she “set up the visit” to the accused’s house “with the deliberate intention of trying to entrap” him. The complainant
disagreed with this statement.
121.  It was put to the complainant a number of times that all of the sex between herself and the accused was consensual; she disagreed with this statement on each occasion.

Re-examination

122. In re-examination, the complainant was asked about when she takes her medication. She stated that she takes her antipsychotic medication at dinner time, and she did so on Friday 15 March 2019. She further stated that she takes her OCD medication and the contraceptive pill in the morning around breakfast, which she did after returning home on Saturday 16 March 2019.
123. The complainant gave evidence that, in relation to the list of items presented to her in cross-examination (Exhibit 10 in the re-trial), she recognised the handwriting as belonging to the accused. She stated that she was unaware that a list had been prepared; that she had never discussed the list with the accused; and that she had never seen the list prior to coming to court to give evidence.

Record of Interview with the Accused (22 March 2019)

124.  On 22 March 2019, the accused took part in a record of interview with First Constable Joel Kirby and Senior Constable Justin Mesman at the Belconnen Police Station. The record of interview was played in both the first trial and the re-trial.
125.   At the beginning of the interview, the accused was informed that the police were making inquiries in relation to allegations that in mid-2017 the accused engaged in sexual intercourse with the complainant without her consent, as well as allegations that, in late-2018 and again on 16 March 2019, the accused engaged in sexual intercourse with the complainant without her consent.
126.  Prior to commencing the interview, the accused was cautioned. He was asked if he would like to communicate with a family or friend. He responded that he would, but there was no way he could contact anyone at that point, as his Mum was at work and he was unsure what his sister was doing. When asked if he would like to attempt to
contact his Mum and put the interview on hold, the accused replied: “Um, I will be right,
I would just prefer to get the interview done. Am I able to call my mother after the
interview?”. First Constable Kirby responded “Yeah, hundred per cent”.
127.  The accused was also offered the opportunity to contact a legal practitioner and declined. He was advised that he would be able to do so if he changed his mind later.

Background to the Relationship & Alleged Sexual Assault on 16 March 2019 (Counts 4 and 5)

128.  When asked what occurred on Saturday 16 March, the accused stated that the complainant had gone out drinking for the night, and she had asked to stay at his house.
He stated that he and the complainant had been “on and off again” after being together
for four years and friends for eight or nine years.
129.  The accused stated that he and the complainant were “very close” and she asked to come and sleep over because she didn’t want to go home, and he had said that was

fine. He stated that the complainant arrived at his house at about 10pm. When asked,
what happened following her arrival, the accused stated:
Um, so when she came over, we were just hanging out. We had a couple of cigarettes. She
was telling me about her night. I was talking to her about her mental health and how she’s
going with everything because she suffers from schizophrenia and a couple of other
disorders. … So we were talking about that and then it was getting quite late, so we decided
to go to bed, so we went to sleep in my room. Um, when we were going to bed, I was giving
her a back massage and just trying to make her feel a little bit comfortable because it’s, like, the person I love. And then we talked. We kissed before “goodnight”. Yeah. I said,
“Goodnight”. I gave her a kiss, and then we’ve both gone to sleep. … And then I remember
waking up the next morning around – I’m gonna say nine thirty, and we went out for a cigarette. I had gone to buy her breakfast at about ten – ten am, and then she’d gone home about twelve …
130.   The accused stated that he had spoken to the complainant the day before the interview
(21 March 2019) on the phone; however, they hadn’t been able to hang out because
they were both busy with work.
131.  When asked about the nature of his relationship with the complainant, the accused
stated that they had be “on and off” for about four years. He stated that they had taken

a break when things became too much for the complainant with her mental health, but
that he had always been there for her as a friend because he really cares for her.
132.   The accused stated that, up until December 2018, he had been seeing the complainant pretty well every day. At that time, he was having some difficulties at his home and workplace, and it was too much for her, so they decided to break up.
133.  When asked about the sexual nature of the relationship, the accused stated that he
hadn’t had sex with the complainant “for a couple of months”. He stated that the last
time he had sex with her “would probably be January [2019]”. When asked what had
been different since January 2019, the accused stated that there had been problems
and they hadn’t been seeing each other; he was struggling with family difficulties and
she was changing medications and had been struggling with self-confidence. When asked to elaborate on the family difficulties, the accused stated that his Mum had been struggling with alcoholism, his sister had been experiencing domestic violence from her partner, and he was having communication difficulties with his father (who had not previously been involved in his life) and his brother.
134.  The accused stated that the complainant’s mental health conditions had impacted on
their relationship because she wasn’t able to support him, and he wasn’t able to support
her when he was dealing with his own challenges. He stated that he had not been
diagnosed with any mental health conditions because he doesn’t have a psychologist,

but his doctor had told him he likely suffered from severe depression. When asked how
that made him feel, the accused stated:
It just makes me feel very uncomfortable at, like, certain times, like even like coming here
today, it makes me, like, really overthink, it gives me, like really clouded judgement. … Best way to describe it: say if there’s like a fist coming through your stomach, it just makes you
feel sick. You know, just sad, unwanted feelings.
135.  The accused stated that he had recently started speaking to a counsellor. He stated
that he currently doesn’t deal with his feelings well and sometimes finds himself getting
quite angry, which is particularly a problem in his relationship with his mother.
136.  Returning to the 16 March, the accused stated that it was not unusual for the complainant to stay at his house and that he was happy that she had asked to come over. He estimated that she had asked to stay over at about 7pm that night. The police asked the accused to tell them everything that happened after the complainant arrived at his house that night. He responded:
I was on my Xbox, basically, playing some games. She was on her phone. We discussed,
like, what she [had] done that night, how was work for her – because seeing she has these mental illnesses with this new job, like it’s – it was for me, I want to make her try and feel as
comfortable as possible and just, you know, make her happier because she’s been very
unhappy with her life for a while. So we were just talking. Um, I asked if she was hungry, if
she wanted food. She said she was all right and then – because she was basically falling asleep, I said, you know, “Do you want to go to bed now?” and she said, “Yes”. And I asked,
“Do you want me to sleep on the couch?” because we weren’t together. And then she said,
“Oh, no, it should be fine”, so we slept in the same bed. So yep, it was about, I’m going to
say, approximately twelve thirty pm I was, like, just in bed with her giving her a back massage,
which I asked if it was all right because I didn’t want to touch her inappropriately. … So I was
giving a back massage and she seemed a bit more happier, and she was falling asleep, and I asked if I could kiss her, and she said yes, and I gave her a kiss, and I said goodnight, and
then we went to bed, and then it was – the next thing I remember was nine thirty the next
day.
137.  The accused stated that, prior to going to bed, the complainant had asked him for a
shoulder massage and had “basically fallen asleep on [him]” while on the couch in the
living room. He further stated that, when she arrived, she seemed quite drunk, was
slurring her words and seemed a bit “wobbly”.
138.   The accused stated that this was the first time the complainant had stayed at his house since their relationship ended. He stated that he asked the complainant if it was ok for him to sleep in his underwear, and also asked her if she would like a back massage before bed, and she said yes to both.
139.  The accused gave further details of the back massage and stated that this was normal for him to do when the complainant came over. He stated that the complainant was wearing a crop top, skirt, and jumper, and the jumper was removed when he gave her the massage. He estimated that he was giving her a massage for about 45 minutes; he then noticed she had fallen asleep, so he decided to stop and go to sleep.
140.  The accused stated that his Mum was at the house during the night but was in her bedroom. He stated that his Mum and the complainant had a conversation in the morning.
141.  When asked if he had woken up during the night, he stated that he went outside to
have a cigarette at approximately 3am. He stated that he does this “sometimes …
depending how [he’s] feeling”. He stated that he also “probably” went to the toilet about

4am. He stated that these were the only two times he got up during the night. He stated
that he did not notice the complainant getting up at all during the night.
142.   The accused stated that he did not have sex with the complainant that night. He stated that the physical contact between the was limited to the back massage, the shoulder
massage, and a “peck” on the lips to say goodnight.
143.  The next morning, the accused stated that he was having a cigarette outside with the complainant and he asked her how she slept, what she was doing that day, and if she would like some breakfast. She said yes to breakfast, so he walked to McDonalds to
purchase food for her. He stated that she then stayed at his house for “another hour or
two” and then she went home. When asked if the complainant seemed any different in
the morning, the accused stated, “not particularly”.
144.  Later in the interview, the accused was asked specific questions in relation to the events on the Friday night. The accused stated that he did not ejaculate at all; he did
not at any point put his fingers inside the complainant’s vagina; and he did not put his
penis inside the complainant’s vagina at any point. When asked if there was anything
else about the night that he hadn’t told the police, the accused responded, “no”.

The 2017 Allegation (Count 1)

145. The accused stated that he remembered the 2017 incident, where the complainant alleged that he had sexual intercourse with her while she was asleep.
146. When asked about the 2017 incident, the accused stated that he couldn’t remember
much of the night, but he remembered touching the complainant, kissing her, and massaging her back. He stated that the next day there was an incident and he received
a phone call from the complainant’s father. According to the accused, the complainant’s
father told him: “Look, [the complainant’s] basically said that you sexually assaulted
her. We don’t believe that at all, but we would like you to stay away from [her]”.

The accused stated that, following the incident, he didn’t see the complainant for “about
three months”. He stated that they eventually started seeing each other again and that
he was told by the complainant that her friend, HW, really didn’t like the accused and

the complainant felt she was under a lot of pressure and had told people that the
accused had assaulted her in order to get him out of her life.
148.  The accused stated the following: “I asked if we wanted to go to the police about this
and she said it’s fine, and from there, it basically just came to everything being resolved,

agreed that nothing had happened and … [we] continued our relationship – not being
together but being on and off between that”.
149.  When asked for further details about the 2017 incident, the accused stated that, in the morning following the night in question, he had been fingering the complainant, but there was no penetration with his penis.
150.  There was some confusion about the timeline of the 2017 incident. When asked specifically about the timeline, the accused stated that he and the complainant had a
“blow up” where she brought up the incident, which she had said happened three or
four months prior. He then stated that two days after the “blow up” he spoke to the
complainant’s father over the phone.

The 2018 Allegation (Counts 2 and 3)

151. The accused stated that he had “no recollection” of an incident in late-2018.

The Accused’s Response to the Allegations Generally

152. The accused stated that there had not been any time that he felt he had sex with the complainant or put his fingers inside her vagina while she was asleep. When asked
why the complainant would allege something like that, the accused responded: “Look,
I have talked to her parents, and this is what they basically told me: when [the complainant] starts to have something going on in her life which she cannot deal with,
she brings up the issue – like, she makes lies about things to get herself out of the problem.” He stated that this is what he believed she was doing in making the

allegations, because she was going through some problems with her car and her
mental health and she was under stress after starting a new job.
153. The accused also told police that he was conceived as a result of his father raping his mother, and therefore, when the complainant first accused him of sexual assault in
2017, it “really affected” him. He also stated there have been further issues in his family in relation to sexual abuse and stated that “it really has been hard”. He stated that he

had told the complainant about this history.
154. When speaking in the police interview about being accused of sexual assault, the accused spoke about experiencing suicidal thoughts. He also apologised for getting teary.

The Pre-Text Phone Call

155. The accused stated that, since the night the complainant stayed at his house, they had

been talking a bit over text. He stated that the complainant had been avoiding him “a
little bit” so he had just been asking her if everything is alright and how she is.
156. The accused was asked whether something could have happened whilst he was sleeping in relation to him and the complainant. The accused replied:
Look, sometimes – I will admit this – in the past, I – I can get a little bit too sexual, as in, like,
I remember, like, there as one time I woke up and I was, like, sort of like grinding on her, and that really made for me like a bit scary.

When asked if he had any dreams that night, the accused stated: “Um, I had one weird

sort of dream – not about that. It was just about things that were going on in my life,
because sometimes I just have dreams because … I’m always stressed out”.
158. The accused told the police that he spoke with the complainant the day before his police interview. When asked to tell the police about the phone call, the accused responded:
Yeah, so she called me and I asked how she was and how I was … because she’s going to
the coast, I believe it was today after work, and just talking about her dog and, you know,
like how her dog is, and just things like that, and just me asking, like, how – like – like, “What’s going on between us” and she just said she’s not mentally feeling very well at the moment. You know, and I said, “Do you need a bit of space for everything” because sometimes –
because I do care a bit too much, I get myself involved too much, so it was just me trying to,
like, take a step back, if you know what I mean. It’s – not trying to make her feel
uncomfortable at the end of the day because, you know, I still love her to pieces, you know.
159. The accused denied that he and the complainant talked about the March incident during the phone call. He later stated that he did mention it in the context of asking her if she
was ok because he thought she had been “a bit weird” since he saw her on Saturday.

160. The pre-text phone call was then played for the accused.

161.  When asked, after hearing the recording, if there was anything the accused wanted to say, he stated:
Um, yes. I will say, so during that conversation, what we had discussed, not all of it – it was – I wasn’t really thinking too clear because I was coming out of doing all this work, so I wasn’t
realistically thinking of what I was saying during the phone recording, which I had no idea what was going on. That was me agreeing with her for things, as in I was following what
she’s saying because of the past of the mental illness. Some like – I would just agree with
what she was saying for certain things.
162.  The police asked the accused, “after hearing that recording, do you think that did
happen?” in relation to the alleged assault. The accused responded:
It’s a bit of a scary thing because I honestly believe it hasn’t happened, and I was just
agreeing with it at that time because I hadn’t slept, basically, for two proper full days because
of the time that I’ve been getting up and going to work, so I’ve been so out of it. I wasn’t being
too conscious. I was more just verbally agreeing with what she was discussing during the
conversation.
163.   When asked about the dream referred to during the phone call, the accused stated that he still remembered the dream. He stated that, in the dream, he was in the
complainant’s car and they started having sex He stated that he then woke up with a
“little bit of an erection”. He further stated:
Yes. Um, previously before, I had stated that I hadn’t had an erection through the
conversation, we just – before, and that was completely honestly true, but we just – that like – us talking about it now really refreshes my mind because I’ve had, like, a good night’s
sleep. And sometimes, you know, I’ll be honest, I do smoke cannabis – not like, not today –
but sometimes in the past, I have smoked cannabis. Like, that night, we were smoking
cannabis, like, quite a lot of it, which I didn’t mention before, just because I didn’t think to
mention it. So sometimes I do wake up, like, a bit groggy, and it’s to do with stress reasons,
just personal reasons.
164.  When asked why he had lied about the content of the phone call prior to hearing it, the accused stated that he was getting confused, that he had woken up only just before
coming to the police station, and that the timing of the phone call meant he didn’t
completely remember it.
165.  Shortly after the pre-text phone call was played, the accused asked for a break so he could seek legal advice. The accused spoke to someone from Legal Aid on the phone and he was advised to stop the interview. The interview was subsequently stopped.

Accused’s Evidence (Jury Trial) – 9 December 2019

Evidence in Chief (Jury Trial)

166.  The accused gave evidence at the first trial. He gave evidence that he never engaged in sex with the complainant while she was asleep.
167.  When asked about the evidence of the complainant’s father, the accused stated that
he had never had a house key to the complainant’s family house. He stated that he had
been shown by the complainant that there was a house kept on their veranda.
168.  The accused gave evidence that he had never had a sexually transmitted disease, including chlamydia.
169.  The accused gave his account of the 2017 incident at the O’Connor shops. He gave evidence that, while at the O’Connor shops with HW and the complainant, he was
accused of raping the complainant, to which he replied that he hadn’t. Once HW and
the complainant left, he walked back to the complainant’s house, where he spoke with the complainant’s father. The complainant’s father advised the accused that he did not

believe the accused had raped the complainant, but he asked that the accused stay
away from her.
170.  The accused gave evidence that, following this conversation, he left a note for the complainant on her bed and did not contact her. He gave evidence that they next had contact about a week later, when the complainant sent him a message and asked him to meet her to talk.
171.   He gave evidence that he met with the complainant at Black mountain School, and she was there with her dog. The complainant apologised for the whole situation and told him that she never meant for the situation to unfold as it had.
172.  The accused agreed that this conversation took place about November 2017, and that he and the complainant resumed a sexual relationship on 14 December 2017. The accused gave evidence that he knew this because there is a photo of the complainant in his room on that night and he remembers having sex with her on that night.
173.   The accused gave evidence that the relationship then continued until September 2018,
when the complainant told him that the relationship wasn’t working and that she wanted
to break up. The accused gave evidence that, two months later, he and the complainant went to Sydney to get a new tattoo for the complainant. He also gave evidence that, in December 2018, he tried to make arrangements for her birthday, and she refused to contact him.
174.  The accused gave evidence that, two days after the complainant’s birthday, she
contacted him and asked if she could come over. He gave evidence that the complainant came over and they had sex on his lounge. He also stated that she gave him the handwritten note on this day (see [92]).
175.  The accused stated that there was nothing about that event that made him think that
the sexual intercourse was without the complainant’s consent, or that the complainant

was scared. He agreed that the only sex that took place between him and the
complainant in 2019 had been the incident in March.
176.  When asked about the gifts and loans between himself and the complainant, the accused gave evidence that, during the relationship, he gave the complainant numerous gifts, including a tattoo, rings, and jewellery.
177.  The accused agreed that there were a number of things he purchased for the complainant that he expected to be paid back. The accused gave the following evidence:
Q: What was the relationship between the two of you with respect to, first of all, why were you paying for these items?
A: Well, in all honesty, so [the complainant] said she was going to be paying me back for
these gifts and I agreed because I thought I was marrying this woman, so I was giving her –
buying her stuff and that she will be paying me back on a later date.
Q: Did she ever say anything about what kind of later date it might be?
A: Yes, around about when she was 25 because she’s getting a big inheritance.
178.  The accused gave evidence that the complainant owed him a total of $3,742. He also gave evidence that he was going to pay for her car registration in early 2019, because
the complainant was concerned that she wasn’t going to be able to pay it and then wouldn’t be able to get to work. The accused gave evidence that he asked the
complainant to begin repaying him.
179.  In relation to the March incident (Counts 4 and 5), the accused gave evidence that the complainant first contacted him about one week earlier to ask if she could stay at his house the night of Friday 15 march. He stated that she asked him when she came to pick him up from work.
180.  The accused gave his account of the evening of 15 March, including stating that the complainant arrived at his house around midnight and they hung out in the loungeroom, with the accused playing Xbox and the complainant using her phone. The accused
stated that he offered to sleep on the couch, and the complainant replied: “No, don’t
sleep on the lounge. Come to bed with me”.
181.   Once in bed, the accused stated that he asked to give the complainant a back massage and the complainant said yes. He stated that this was very common in their relationship.
182.  The accused gave evidence that he and the complainant had a conversation before they went to sleep. He stated that he raised the question of repayment, telling the complainant that he was moving out and would need money for the bond. He stated
that the complainant replied that she didn’t have money for the bond at the time, and
that she said, “can we just have sex and we’ll talk about it later”.
183.  The accused gave evidence that he and the complainant then had sex for approximately five minutes, before the accused decided he was too tired, so he stopped and went to bed. He stated that he did not ejaculate.
184.  The accused gave evidence that, the following morning, the complainant did not make any complaint to him about the night before. They went outside to have a cigarette together and then the accused went to McDonalds to buy the complainant breakfast.
185.  The accused stated that he did not observe anything in the complainant’s behaviour

that caused him any concern; he gave evidence that when he arrived home from
McDonalds, the complainant was in the loungeroom talking to his mum.
186.  The accused gave evidence that the complainant told him that she hadn’t taken her

medicine the night before, so her brother came and picked her up so she could go
home and take it.
187.  Following the complainant staying at the accused’s house on the Friday night, there
was no contact between the two of them until Wednesday of the following week, when
the complainant sent him a Facebook message saying, “I’m so sorry”. The accused did

not understand this message. The accused gave evidence that, two days later, he was
called to come into the police station to be interviewed.

Cross-Examination

188.   In cross-examination, the accused conceded that he had lied to the police about having
sex with the complainant in March 2019. He stated that this was because he was “very
scared” because he had never been involved in a police interview before. The accused
was taken to a number of questions in his police interview where he denied having sex with the complainant in March 2019. The accused maintained that this was because he was scared and because he did not want to speak about why they had sex that night.
189.  The accused was asked questions in cross-examination about the March incident and about the pre-text phone call. It was put to the accused that, in the morning of 16 March, he asked the complainant if they had sex the night before because he wanted to check if she had been awake when he penetrated her vagina. The accused disagreed with this statement.
190.  In the pre-text phone call, the accused states to the complainant: “I woke up and I’m like, did we have sex last night and you’re like, ‘Mmm’”. When asked if this was a lie to the complainant, the accused stated: “you have to remember when we’re having this phone call, I’m having flashbacks to 2017 where I have also been [accused] of this
incident which has never happened”. The accused further stated that he did not know
what was going on during the pre-text call.
191.  The accused denied touching the complainant’s vagina at any time, despite telling her
that he had during the pre-text phone call.
192.  It was put to the accused that he lied to the police about not having sex with the complainant because he did not want to get into trouble for having sexual intercourse with her while she was asleep. The accused denied this.
193.  It was put to the accused that he had lied about what the complainant’s parents had
told him about the complainant and her behaviour.
194.  In relation to the debt allegedly owed by the complainant to the accused, the accused agreed that his statement that the complainant asked to have sex when he brought up repayment had only been brought up for the first time when he gave evidence in court. He stated that he did not mention this during the police interview because he did not know how to raise it with the police.
195.   It was put to the accused that the claim in relation to the handbag was a recent invention that the accused came up with for the trial. This was denied by the accused. The
accused further stated, “Well, she never wanted to have sex for the handbag. She’s
actually stated when we’re about to have sex, ‘No, we’ll have sex and we’ll talk about
this later’.”
196.   The accused stated that he did not mention that the complainant wanted sex during the pre-text phone call because he was very stressed at work.
197.  The following exchange took place in relation to further details of the pre-text phone call:
Q: In the phone call, it was you who voluntarily mentioned the word ‘rape’. You were the first
one in that phone call to raise the word ‘rape’?
A: Yes, I was because I’ve already stated to the jury that I was having flashbacks to the 2017
incident.
Q: You agree that not once in that phone call [the complainant] mentioned the word ‘rape’ or
accused you of rape?
A: Yes.
You came up with that all by yourself?
A: No, I was actually having flashbacks to the 2017 incident, which has actually made me say this.
Q: Mr Sutton, I put it to you that the reason why you were the one who came up with the
word ‘rape’ and reference to rape in that phone call was because you understood that you
did rape [the complainant] …
A: No
Q: … on that March?
A: No. I have never raped her in my entire lifetime, nor have I ever raped anyone in my entire life, nor will I ever rape someone in my entire life.
Q: Mr Sutton, once you had raised that word about rape in that phone call with [the
complainant], you agree that not once after did you say, ‘Hang on, … I never raped you.
Remember, we had consensual sext You wanted to have sex’?
A: No, I didn’t raise that question because I was thinking of the 2017 incident. I also heard
the person that I love speaking in a very strange tone of voice, so I was unsure what was
going on. I was stressed on that day …
198.  In cross-examination, it was raised that, at the same time the accused alleged to have been asking for money from the complainant for his rental bond, he was also offering to pay for her car registration. The accused stated that he was offering to pay for her car because he was getting his holiday pay from his previous job.
199.   The accused again denied that he had inserted his fingers into the complainant’s vagina
during the March incident.
200.  The accused denied that he had ever had a conversation with the complainant about him having sex with her while she is asleep.
201.  The prosecution drew attention to the exchange in the pre-text phone call where the
accused says, ‘Fuck, have I done it again’. It was put to the accused that he used these
words because he had previously raped the complainant and he had again in March 2019. The accused denied this and stated that, during the pre-text phone call, he had been having flashbacks to the 2017 allegation.
202.   The accused gave evidence that he had never had a conversation with the complainant about him sexually assaulting her, and that the allegation against him in 2017 was
made by the complainant’s friend, HW, and not by the complainant herself.
203.   The accused denied that he was seeking relationship therapy because the complainant had alleged that he sexually assaulted her.
204.   The accused denied that an apology note given by him to the complainant following the 2017 allegation was an apology for sexually assaulting her.
205.  The accused agreed that he had lied to the police about the content of the pre-text phone call. The accused denied that he lied because, if he had told the truth, he would have been implicated in all of the offences.
206.  Finally, the accused denied sexually assaulting the complainant on any of the occasions alleged. In relation to the March 2019 incident, he agreed that he and the complainant had sex, however, he stated that the complainant was awake the whole time.

Crown Tender Bundle

207. A bundle of documents was tendered by consent in the re-trial, on 23 September 2020. The documents included transcripts of evidence given in the first trial, and a statement made by Constable Joshua Hardy dated 16 April 2019.

Evidence of Dr Catherine Brogan (3 December 2019)

208.  Dr Catherine Brogan was called by the prosecution to give evidence on 3 December 2019 in the first trial. Dr Brogan is a medical practitioner at the Canberra Hospital in the area of clinical forensic medicine. One aspect of her role includes working in the field of sexual health and sexual assault.
209.  As a medical officer in the Forensic and Medical Sexual Assault Care Unit of the
Canberra Hospital, Dr Brogan’s duties include examining victims of alleged sexual
assault and collecting forensic specimens from victims.
210.  Dr Brogan gave evidence that, on Monday 18 March 2019, she examined the complainant, who presented to the hospital reporting that she had been sexually assaulted.
211.  In examination in chief, Dr Brogan was asked a number of questions about the
complainant’s reports in relation to taking anti-psychotic medication around the time of
the alleged assault. The complainant’s reports to Dr Brogan were consistent with the
information she gave in evidence.
212.  Dr Brogan gave evidence about the possible consequences of drinking alcohol while taking anti-psychotic medication, noting that sedation is a common consequence, but that the effects vary between different people. Dr Brogan stated that it is difficult to discuss side effects of anti-psychotic medication in a broad sense because it is a broad class of medications.

been a very polite young man and always treats everybody, especially females, with the
utmost respect.

315. Ms Laugher gave evidence that she believes the accused is a very honest person.

316. In cross-examination, Ms Laugher agreed that she had never had a sexual relationship
with the accused and that she does not know what happens “behind closed doors”
when the accused is with other women.

317. I accept the evidence of the witnesses discussed above.

Evidence of Text Messages

318. Screenshots were tendered of the text messages between the complainant and the accused on 15 March 2019. At about 6pm, the complainant sends a message saying,
“Can I stay over tonight”. The accused responds “Yes” at around 8.30pm. There are a
number of further messages in which the accused offers to get the complainant “weed”,
to which the complainant says yes. He then sends a message telling her to have a
good night and saying that he will see her around “12 or something”. There are some further messages, and then the complainant says, “On my way!” at 11.59pm (Exhibits
14 and 17).
319. Police extracted data from the complainant’s phone. Five bundles of text messages
from her phone were tendered and became Exhibit 4.

Messages Between the Complainant & HW (18-20 March 2019)

320.  The first bundle of text messages is dated 18 March 2019 and includes messages between the complainant and her friend, HW. In the messages, the complainant tells HW that she has just gone to hospital to get a rape kit done. When asked what

happened, the complainant sends a message stating, “I got drunk on Friday night and
went to Patrick’s and he raped me again”.
321.   In messages sent on 19 March 2019, the complainant goes on to tell HW that she thinks she will take it to police and HW is supportive of that. The complainant then sends a
message stating, ‘I’m just scared nobody will believe me like last time”. When asked if
she would tell her mother, the complainant said she didn’t know because her mother didn’t believe her last time. She also stated that she did not want to tell her father what
was going on. HW stated that she wants to come to Canberra and “punch on” with the
accused.
322.  In the messages, HW asks the complainant if she has told her girlfriend. The

complainant responded, “Nah I’m too scared to tell her because she fucking hates him
and would probably break up with me if she found out I went to his”.
323.  There are further messaged from June 2019 in which the complainant alleges that the accused gave her chlamydia.

Messages Between the Complainant & DF (19-20 March 2019)

324. The second bundle of messages incudes messages between the complainant and her new partner, DF. On 19 March 2019, DF asks the complainant what she is doing, to which the complainant replies she is at a police station. When asked why she is there,
the complainant responded, “Making a statement against Patrick hahahaha”. She goes
on to say that the statement is about when he raped her.

Other Text Messages

325.  The third bundle includes messages between the complainant and her mother on 19
March 2019. In the messages, the complainant’s mother says that she has heard “things have been bad” for the complainant, sends hers love and asks the complainant
to call her. A further message from the complainant to her mother on 5 June 2019 states that the accused gave her chlamydia and she received treatment at the hospital.
326.  The fourth bundle of messages is an individual message to the complainant advising her she should get a chlamydia test. The message was sent on 5 June 2019.
327.  The final bundle of messages are text messages between the complainant and the accused from March 2019. The messages on 21 March 2019 give context to the pre- text phone call, and arrangements are made for the call to take place during the
accused’s lunch break.

Evidence of the Accused on the Voir Dire

328. The accused was called to give evidence on the voir dire in relation to the circumstances surrounding his interview with police on 22 March 2019.

329. The previously noted applications to exclude evidence were later withdrawn.

Statutory Declarations

330. Defence counsel tendered two statutory declarations as evidence of the accused’s
good character.

Statutory Declaration – KX

331. KX, a high school teacher and the accused’s uncle, provided a statutory declaration
dated 25 November 2019.
332. The declaration states that KX is aware of the charges against the accused and includes the following:
I have known my nephew Patrick Sutton since his birth. His mother is my sister. During
Patrick’s childhood I lived in Canberra in close proximity to his family and I have kept regular
contact with him and other family members up to the present day.
Patrick has impressed me with his empathetic intelligence. An example is that Patrick
developed a close bond with my father, ‘Don’, who passed away about six years ago after a
lengthy battle with cancer and debilitating heart disease. Patrick always displayed a high level of concern and care for Don and would always respond with action when he had a
need. …
Another more recent example is that Patrick has expressed concern for one of my sons,
‘Daniel’, who has been struggling with mental health issues. Unfortunately, Daniel has
estranged himself from our family which is symptomatic of his condition, but Patrick offered to ring Daniel on several occasions in order to reach out and show Daniel is loved and cared for by his family.

Statutory Declaration – Curtis Harvey Cox

333. The second statutory declaration is written by Mr Curtis Harvey Cox, a former schoolfriend and colleague of the accused. At the time of writing the statutory declaration, Mr Cox worked as a bartender in London in the United Kingdom. The declaration is dated 3 December 2019 and includes the following:
During the time I have known Patrick I have seen and heard him interacting with other people who are his family relatives, fellow school students, friends and work mates. At school, I revered Patrick because he was often the mediator within our peers, drawing the line and
stepping in when antics became harmful. Patrick’s virtuousness became apparent to me
through … being consistently unafraid to stand up for others when push came to shove, while
most others, myself included, hesitated to act. During the period that we worked together we would interact daily and would frequently convene after work at his house. I observed that Patrick got on with and looked up a great deal to his female supervisor and mentor. Patrick cherishes his niece and I believe that it is his guiding motivation to act and develop himself as a role model to her. He talks frequently about trying to provide for her and supplement her
upbringing however he can. I have never witnessed any behaviours in Patrick’s behaviour
towards others, especially women that would support the notion that he committed these
accused assaults.
Based on interactions with these people, both male and female, I have observed and I believe that Patrick Sutton has a reputation as a person of good character.

Prosecution Submissions

334. The prosecution submitted that this is a classic “word-on-word” case, where the
outcome “will ultimately turn upon the reliability and the credibility of the complainant
and the accused”.

Consent

335.  The prosecution submitted that consent means real consent which is freely and voluntarily given. Relevantly, a person cannot consent to an act of sexual intercourse if it occurs whilst they are unconscious or asleep.
336.  The prosecution submitted that, on all three occasions in question, the Court would be satisfied that the accused knew, or was reckless, to the complainant not consenting to the sexual intercourse, as it is an obvious and apparent fact whether a person is awake or asleep. In this respect, the prosecution noted that the accused was aware that the complainant was a heavy sleeper who took nightly medication that made her drowsy.
337.  It was submitted that the accused would have known on all three occasions that the complainant was asleep and not consenting.

Acceptance of the Complainant’s Evidence

338. The prosecution submitted that the complainant “was a witness who was measured,
who was fair and who was simply doing her best to recount three traumatic events
which she had experienced in her life despite the limitations of human memory”.
339. The prosecution pointed to the following aspects of the complainant’s evidence that
demonstrate her reliability and credibility:

(a) In the complainant’s evidence in chief interview, she gave “stream-of-
consciousness” answers without hesitation or pause.

(b)

In recounting the most recent sexual assault, the complainant provided innocuous and intricate detail which was suggestive of a lived experience; for example, she gave evidence that she could hear the accused licking his fingers after withdrawing them from her vagina.
(c) The complainant’s evidence was internally consistent, even on details such as
the side on which her skirt had a zip.

(d) The complainant did not give evidence where she was uncertain, which
demonstrated the “careful way in which she approached the task of giving
evidence”.

(e) The complainant gave evidence which did not necessarily reflect positively on her, such as admitting that the accused asked her if she wanted him to sleep on the couch and her saying it was ok for him to sleep in the bed with her (in relation to the March 2019 incident).
(f) In relation to the first and second in time incidents, the complainant gave evidence about precisely the things one would expect to remain in the memory, while providing less detail about the surrounding circumstances, such as the timing. It was submitted that her confusion around the timing of the incidents is
to be expected “within a protracted and disordered relationship”.

(g) The complainant was “unfailingly courteous, polite and measured” in cross-
examination, and she maintained the same version of events across her
evidence.
(h) The complainant was not a defensive witness and made appropriate concessions. For example, she conceded that she could have contracted chlamydia from her new partner and that she had been too quick to blame the accused.
(i) The complainant was “softly spoken, subdued and stoic” in her evidence and
did not volunteer information to the police or to Court to “unnecessarily
demonise the accused”.

Criticisms of the Complainant’s Evidence

340.  The prosecution responded to a number of the criticisms levelled at the complainant’s
evidence by defence counsel.
341.  The prosecution submitted that, contrary to the defence’s position, the evidence
supported the fact that the complainant did not have the “upper hand” in the relationship
and was not controlling of the accused.
342.  In relation to the defence submissions that the complainant could have ended her
contact with the accused or “driven away”, the prosecution submitted that “this Court
knows about the complexities of human nature and the complexities of relationships
which involve abuse”, and noted that it is not “novel” for victims to remain in sexual
relationships with their abusers.
343.  It was submitted that the issue around the spare key at the complainant’s house in March 2019 should be resolved in the complainant’s favour as both she and her father

gave evidence that there was no longer a spare key outside the house at the relevant
time.
344.  Defence suggested that the complainant lied about why she went to the accused’s
house in March 2019 and when she made the plans to stay over. The prosecution noted
that, in cross-examination, the complainant stated, “It had been brought up, I believe, but there were not arrangements”. This was submitted to be consistent with the text
message evidence and the evidence of the accused.
345.  The complainant was criticised by defence counsel for lying to the accused about her sexual history following her breakup with the accused. The prosecution submitted that

this is irrelevant to the complainant’s credibility, as she was under no obligation to “tell
the truth to her ex-boyfriend who was seeking intrusive details about her private life”.
346.   It was implicitly suggested by defence that the complainant could have and would have
immediately disclosed the complaint of the March 2019 assault to the accused’s mother
or her parents. It was submitted that, in accordance with s 80B of the Evidence
(Miscellaneous Provisions) Act 1991 (ACT), there are “good reasons” why sexual

assault victims do not immediately complain, and there are good reasons why this
complainant in particular did not immediately complain.
347.  The prosecution submitted that the absence of the accused’s DNA on the underwear,
swabs and smears is neutral.
348.  The prosecution submitted there are a number of alternate explanations for why some of the messages between the accused and the complainant did not appear when police
conducted the extraction of the complainant’s phone. It was submitted that, in the

absence of further information, the Court cannot draw an adverse inference from the
deleted text messages.

Complaint Evidence

349. The prosecution submitted that the Court’s confidence in the complainant’s evidence
would be reinforced by the complaint evidence. There is evidence of a complaint to the
complainant’s friend, HW, in general terms, in relation to the first and second incidents.
There is further evidence about a complaint to the complainant’s parents following the
second incident. The prosecution submitted that the Court would attach significance to the timing of this particular complaint, as it came at a time when the complainant had no intention of bringing the matter to the attention of police.
350. The complainant noted that, in relation to the third incident in March 2019, there was
complaint evidence in relation to Dr Brogan, HW, the complainant’s mother and father,
and Constable Joshua Hardy. The prosecution submitted that there is significant
consistency between these disclosures and the complainant’s account of the March
2019 incident.

Corroboration

351. The prosecution submitted that the evidence of other witnesses corroborates and
reinforces the complainant’s evidence.

352. The prosecution pointed to the following points of corroboration:

(a) The complainant said the accused had previously told her that, if she went to police, he would tell them she had schizophrenia and that she was making it up.
It was submitted that this is corroborated by the accused’s record of interview.

(b)

The complainant described waking up with her skirt unzipped. This was corroborated by the accused in the pre-text phone call, when he stated that he remembered seeing her skirt open.
(c) The complainant’s description of a conversation in which she asked the accused
if they had had sex on 15 March was corroborated by the accused in the pre-
text phone call.
353. The prosecution submitted that the accused attempted to distance himself from what
he said in the pre-text phone call, providing a “litany of excuses”, including that he had

not had enough sleep, he was agitated, he was busy at work, and he was having
flashbacks to the 2017 incident.
354. It was submitted that these excuses should be rejected as the accused was an active participant in the phone conversation; his tone was normal throughout the phone call; it was illogical for the accused to falsely admit to sexual misconduct in order to make her feel happier and more relaxed; and the accused was not verbally agreeing with the complainant, he was offering a full account of his recollection in his own words. It was further submitted that the flashback excuse was a recent invention at the first trial.

355. Further, the prosecution submitted the following:

It is submitted that this Court would reject the accused’s attempts to backpedal on what he
said in the pre-text phone call and this Court would find that the admissions, by the accused
during the pre-text phone call, corroborate the complainant’s version of events and support
each of the five counts.

Rejection of the Accused’s Evidence

356.  It was submitted that the accused was a “most unimpressive witness” who “gave
conflicting and, at times, nonsensical evidence”. It was submitted that his evidence
should be rejected on the basis that:

(a) he has told a number of lies;
(b) his version of events in March 2019 is implausible;
(c) his accounts are internally inconsistent; and
(d) his manner of giving evidence was unreliable.
357.   The accused provided a number of irreconcilable accounts of the events in March 2019, the first being that they did not have sex; the second being that he thought they may
have had sex during a “lucid dream” he had; and third, that they had consensual sex
after a discussion about repayment for the handbag.
358.  It was submitted that the accused’s reasons for providing a different account to police
were implausible, and that the accused’s actions prior to the interview do not reflect
someone who is “terrified”. It was further submitted that it is illogical to withhold

innocent, but embarrassing, information from police in the face of serious criminal
allegations.
359.  The prosecution submitted that this Court would not accept the accused lied to police because he was too embarrassed to tell them about the reason why the complainant and himself had sex that night.
360.  The prosecution submitted that, additionally, the accused lied about the extent of the massage on 15 March 2019; he lied about the contents of his dream; he lied about the

content of the pre-text phone call; and he lied about what the complainant’s parents
had said to him about the complainant’s mental health.
361.  The prosecution noted that, during the pre-text phone call, the accused made no mention of consensual sex taking place. There was also no mention of consensual sex in the police interview.
362.  It was submitted that the defence case emphasised the alleged conversation about a debt owed by the complainant to the accused for the handbag. The prosecution submitted that the prospect of the accused asking for money for a rental bond was implausible in a situation where, only a few days later, he tells the complainant he has money for her to pay her car registration. The prosecution pointed to further
inconsistencies in the accused’s evidence.
363.  Finally, the prosecution submitted that the accused was combative and unwilling to make concessions when giving evidence. His answers were at times hyperbolic; he attempted to paint himself in an overly favourable light; and he was at pains to
emphasise the complainant’s supposed mental instability.

364. In summary, the prosecution submitted the following:

… the accused has given version after version, has told lie after lie, has given unpalatable
and unconvincing explanations for those lies, has given extraordinary and nonsensical and inconsistent evidence, has tried to paint himself in an unduly favourable light and to paint the complainant as mentally unstable, and has been an overall poor witness. It is submitted that
this Court cannot rely on the word of this accused and this Court would reject the accused’s
evidence unless it is consistent with the evidence of other witnesses.
365. The prosecution submitted, therefore, that the Court should find all five of the charges proven beyond reasonable doubt.

Defence Submissions

366. Defence counsel submitted that the prosecution had not proven the offences to the requisite standard of beyond reasonable doubt.

367.  It was submitted that the “vagueness” in relation to the timing of the first and second

incidents should not be expected in circumstances where the complainant is a young
adult complaining of recent, traumatic events.
368.  Defence counsel took issue with the complainant’s explanation that she stayed at the
accused’s house because she couldn’t get into her own house on 15 March 2019. It
was submitted that the complainant fabricated the offences and repeatedly lied to police and the Court. Defence counsel placed heavy reliance on the deletion of text messages in making this submission.
369.  It was submitted that, had the complainant been scared of the accused or his mother,
she would not have continued the relationship, and she could have left the accused’s
place whenever she pleased.
370.  Defence counsel made a number of further submissions that were not, in my view, forensically useful. It therefore serves no legal purpose to summarise the further submissions here.

Consideration

Additional Directions

371.  There are a number of further legal directions that I must give myself as the Court hearing this matter. I direct myself as a matter of law in the following matters in coming to a reasoned conclusion on the verdicts.
372.  I direct myself that the prosecution must prove the essential elements of the charge beyond a reasonable doubt. The prosecution, however, is not required to prove everything about which evidence has been given beyond a reasonable doubt.
373.  I direct myself that the accused gave evidence on oath and his evidence is to be considered in the same way as other witnesses in the trial. By giving evidence, he does not assume any burden, onus, or obligation to prove his innocence.
374. I direct myself pursuant to the Evidence (Miscellaneous Provisions) Act 1991 (ACT). I give myself the following directions:

• A direction pursuant to s 57 that no adverse inference is to be drawn against
the accused because an audio-visual recording of the complainant’s police

interview was used in evidence and the evidence is not to be given more or less
weight because the evidence was given that way.
• A direction pursuant to s 72 that no adverse inference is to be drawn against the accused because the complainant gave evidence by audio-visual link.
• A direction about delay in complaint pursuant to s 80B that the Court would bear in mind that any delay in making a complaint does not necessarily indicate that the allegation was false and that there may be good reasons why a victim of a sexual offence may not make, or may hesitate in making, a complaint about the offence.
• A direction about implied consent pursuant to s 80C that the Court would bear in mind that the complainant is not regarded as having consented to a sexual act because she did not say or do anything to indicate that she did not consent, or because she did not protest or physically resist, or because she did not sustain a physical injury, or because on an earlier occasion she had previously consented to sexual activity with the accused.
• A direction in relation to mistaken belief that the complainant was consenting pursuant to s 80D. Section 80D provides as follows:
In a sexual offence proceeding, the judge must, in a relevant case, direct the jury that, in deciding whether the accused person was under a mistaken belief that a person consented to a sexual act, the jury may consider whether the belief was reasonable in the circumstances.

375.  A jury or a judge-alone fact-finder should not proceed on the basis that the test is what a reasonable person would have known or believed in the circumstances: R v Lopez- Alonso (1996) 86 A Crim R 270 at 273, Pereira v Director of Public Prosecutions (1988) 63 ALJR 1; 35 A Crim R 382 at 219-220, and MZ v The Queen [2020] ACTCA 41.
376. I direct myself in relation to recklessness in relation to s 54(3) of the Crimes Act 1900. I direct myself as to advertent and non-advertent recklessness: see Banditt.
377.  I also direct myself in relation to complaint evidence and the way in which it may be used (s 66 of the Evidence Act).There was generalised complaint made to HW about the first-in-time and second-in-time incidents, there was a complaint made to SI about the second-in-time incident, and there were complaints made to Dr Catherine Brogan, HW, SI, KD and Constable Joshua Hardy about the third-in-time incidents. I accept the evidence of the complaint witnesses.
378. I further direct myself in accordance with Liberato v The Queen (1995) 159 CLR 507; 59 ALJR 792 at 515 (Liberato). I direct myself in the following terms:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
379.  I also have regard to the recent High Court decision concerning the Liberato direction, De Silva v The Queen [2019] HCA 48; 375 ALR 1.
380.   I additionally direct myself in relation to good character. I must take the accused’s good character into account in his favour in two ways. Firstly, I must take the accused’s good
character and reputation into account in his favour on the question of whether or not the prosecution has proved his guilt beyond reasonable doubt. Secondly, I must take
the accused’s good character and reputation into account in his favour on the question
of whether or not to accept what the accused has said about the prosecution’s allegation against him. The accused’s good character and reputation does not provide
him with a defence. People of good character and reputation do commit criminal offences. Every offender has committed a first offence and, before doing so, was a person of good character and reputation. The fact that the accused is a person of good character and reputation cannot prevail over, or provide a defence to, evidence of guilt, if the prosecution has proved beyond reasonable doubt that the accused is guilty of the offence.

A direction in relation to lies is appropriate in accordance with Edwards v The Queen
(1993) 178 CLR 193 (Edwards) in relation to the accused’s denial, during his record of
interview on 22 March 2019, of engaging in any sexual intercourse with the complainant on 15/16 March 2019: see Tang at [139]-[148]. In Edwards at 210-211, it was stated that:
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because
of "a realization of guilt and a fear of the truth”.
(Footnotes omitted).

382. Reliance on lies is fraught with the risk of miscarriage: R v Sutton (1986) 5 NSWLR 697. The fact that a person tells lies does not necessarily mean that the opposite of what the person says is true: Scott Fell v Lloyd (1911) 13 CLR 230.
383.   Further, I direct myself in relation to lies in accordance with Zoneff v The Queen [2000] HCA 28; 200 CLR 234 (Zoneff) with respect to other lies and their use to assess the credibility of the accused. The High Court suggested in Zoneff that such a direction be in the following terms:
You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.
384.   I direct myself in relation to the use of expert evidence in relation to the evidence of Ms Jennifer Stone and Dr Catherine Brogan: see Tang at [135], [137]-[138]. I accept the evidence of the expert witnesses.
385.  I direct myself in relation to tendency evidence. The prosecution has been permitted to lead evidence that the accused has a tendency to have a sexual interest in the complainant and has a tendency to act upon that sexual interest by engaging in sexual intercourse with her whilst she was asleep or appeared to be asleep. For the Court to use evidence of tendency, the Court must be satisfied beyond a reasonable doubt that one of the counts occurred. If the Court is so satisfied, then it is to consider if it can infer the alleged tendency from that act. If the Court is so satisfied, then the Court can use the fact of the tendency in considering whether the accused committed the remaining counts on the indictment.
386. I direct myself in accordance with R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315.
I direct myself that the complainant’s evidence should be scrutinised with care.
387. I direct myself in accordance with R v Jovanovic (1997) 42 NSWLR 520; 98 A Crim R 1 at 521-522.
388. I direct myself in accordance with R v Markuleski (2001) 52 NSWLR 82; 125 A Crim R 186 (Markuleski). I direct myself that, if I have any reasonable doubt about the evidence on a count on the indictment, I must ask whether that doubt causes me to have reasonable doubt about evidence on the other counts.
389. Finally, I direct myself in accordance with R v Storey (1978) 140 CLR 364; 22 ALR 47 to the effect that:

• This Court is to use the evidence of the choking (which was the subject of an
acquittal) for the limited purposes of marrying up the complainant’s disclosure
to SI to the second-in-time incident (Counts 2 and 3), to provide a fuller context
to the complainant’s account of the second-in-time incident and to delineate
Count 2 from Count 3;

•

This Court must accept the fact of the earlier acquittal and must not use the evidence in any way to reconsider the guilty of the accused for the earlier offence of choking; and

•

This Court must not accept a view of the facts which are inconsistent with the acquittal.
• Whilst this Court is aware that the present matter is a re-trial, the Court would
have no regard to the jury’s previous acquittals at the first trial: Casey v The
Queen [2020] NSWCCA 177 at [74]-[75].

Elements & Findings of Fact

390.   In relation to Counts 1 to 5, I am satisfied of the following elements beyond reasonable doubt:

(a) The accused engaged in sexual intercourse with the complainant on each occasion.
(b) The accused intended to engage in sexual intercourse with the complainant on each occasion.
(c) The complainant did not consent to sexual intercourse on each occasion.
391.  For the purposes of assessing the evidence in this case, I make it clear that the
presence or otherwise of a diagnosis of schizophrenia plays no part in the Court’s
reasoning process; it plays no part in my reasoning process in this case. People suffering from schizophrenia are entitled to be believed. Each case must be determined on the basis of the evidence in each individual case. This case, as in any case of this nature before the Court, must be dealt with on the basis of evidence and the evidence
alone. I underline that I accept the complainant’s evidence in relation to lack of consent

beyond reasonable doubt. Her evidence, in relation to her lack of consent, is, in my
view, credible and reliable.
392.  Defence counsel addressed me in relation to inconsistencies. While I accept that there
were inconsistencies in relation to the complainant’s evidence, in particular concerning
the complainant’s explanation for attending the accused’s residence on the night in
question in March 2019 and the deletion of texts by the complainant from the night in
question, nevertheless, I underline that I accept the complainant’s evidence in relation
to her lack of consent on all counts.
393.   It is important when assessing evidence concerning an allegation of sexual assault that judgments are not based on stereotypes about women or stereotypes about men. A judgment in each individual case must be based on the evidence and not on assumed stereotypes.
394.  In my view, the critical issue in this case is whether the fourth element is established. That is, whether the accused was reckless as to whether the complainant was consenting.

Conclusion on the Fourth Element – Recklessness as to complainant’s consent

395.   The presumption of innocence is the principle that a person is presumed to be innocent until the prosecution proves guilt beyond reasonable doubt. In a criminal case, the prosecution is required to prove the case beyond reasonable doubt and, if there is reasonable doubt, the accused cannot be convicted. The prosecution is not required to
prove the guilt of the accused “beyond any possible doubt” but beyond reasonable
doubt.
396.  Suspicion must play no part in my function as a judge of the facts. If a fact-finder feels that the accused may be guilty and even if a fact-finder feels that the accused probably
is guilty, as long as the fact-finder has a reasonable doubt about the accused’s guilt on

a particular charge, that fact-finder, be it a jury or a judge, must return a verdict of not
guilty on that charge, according to law.
397.  It is important that the onus and standard of proof is not reversed. The question is not whether the accused has established a reasonable possibility that his account is correct. Rather, it is more properly expressed as whether the prosecution has negatived the reasonable possibility.
398.   It is important to underline that the criminal standard of proof is not on the civil standard of proof of the balance of probability. Having considered all the evidence, I have a reasonable doubt in relation to the fourth element of Counts 4 and 5. That is, I am not satisfied beyond reasonable doubt that the accused was reckless as to whether there was consent. Directing myself in accordance with Markuleski, that doubt causes me to have a reasonable doubt about the evidence in relation to the evidence concerning counts 1-3. After assessing all of the evidence, in my view, the criminal standard of beyond reasonable doubt is not met in relation to the relevant fourth element on counts 1-5.
399.  Were the standard of proof the balance of probabilities, the prosecution may arguably have succeeded; I am not called upon to make that determination. The criminal standard of proof beyond reasonable doubt is a higher standard. The prosecution bears the burden of proving the case against the accused to the criminal standard. The prosecution has not.
400.  Having considered the entirety of the evidence, the relevant legal directions and principles, and all of the submissions made by the parties, I am not satisfied beyond reasonable doubt, on the charges before the Court. Therefore, on 29 September 2020, I returned verdicts of not guilty on all counts on the indictment.

Orders

401. On 29 September 2020, I returned the following verdicts:

(a)

The accused is not guilty of the charge of sexual intercourse without consent (CC 19/3501).

(b)

The accused is not guilty of the charge of sexual intercourse without consent (CC 19/3502).

(c)

The accused is not guilty of the charge of sexual intercourse without consent (SCCAN 19/3724).

(d)

The accused is not guilty of the charge of sexual intercourse without consent (CC 19/3505).

(e)

The accused is not guilty of the charge of sexual intercourse without consent (CC 19/3506).
I certify that the preceding four hundred and one [401]
numbered paragraphs are a true copy of the Reasons
for Judgment of her Honour Justice Loukas-Karlsson.
Associate: Lauren Skinner
Date: 17 March 2021

(a)	Count 1: The accused is charged that, on a day unknown between 1 January 2017 and 31 December 2017, at Canberra in the ACT, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting.
(b)	Count 2: The accused is charged that, on a day unknown between 1 July 2017 and 1 January 2019 in Canberra, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting.
(c)	Count 3: The accused is charged that, on a day unknown between 1 July 2017 and 1 January 2019 in Canberra, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting.
(d)	Count 4: The accused is charged that, on 15 March 2019 or 16 March 2019 in Canberra, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting.
(e)	Count 5: The accused is charged that, on 15 March 2019 or 16 March 2019 in Canberra, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting.

(a)	the accused engaged in sexual intercourse with another person;
(b)	the accused intended to engage in sexual intercourse with another person;
(c)	the other person did not consent to the sexual intercourse; and
(d)	the accused was reckless as to whether the other person was consenting.

(a)	The prosecution sought to lead evidence of an act of choking, which was the subject of an acquittal at the first trial, for limited purposes.
(b)	Defence counsel made an application to exclude the accused’s record of

(a)	firstly, to delineate between Counts 2 and 3; and
(b)	secondly, to maintain consistency between the disclosure to the complainant’s

(a)	the accused had a tendency to have a sexual interest in the complainant; and
(b)	the accused had a tendency to act upon that sexual interest by engaging in sexual intercourse with her while she was asleep or appeared to be asleep.

(b)	In recounting the most recent sexual assault, the complainant provided innocuous and intricate detail which was suggestive of a lived experience; for example, she gave evidence that she could hear the accused licking his fingers after withdrawing them from her vagina.
(c)	The complainant’s evidence was internally consistent, even on details such as

(e)	The complainant gave evidence which did not necessarily reflect positively on her, such as admitting that the accused asked her if she wanted him to sleep on the couch and her saying it was ok for him to sleep in the bed with her (in relation to the March 2019 incident).
(f)	In relation to the first and second in time incidents, the complainant gave evidence about precisely the things one would expect to remain in the memory, while providing less detail about the surrounding circumstances, such as the timing. It was submitted that her confusion around the timing of the incidents is

(g)	The complainant was “unfailingly courteous, polite and measured” in cross-
examination, and she maintained the same version of events across her evidence.
(h)	The complainant was not a defensive witness and made appropriate concessions. For example, she conceded that she could have contracted chlamydia from her new partner and that she had been too quick to blame the accused.

(b)	The complainant described waking up with her skirt unzipped. This was corroborated by the accused in the pre-text phone call, when he stated that he remembered seeing her skirt open.
(c)	The complainant’s description of a conversation in which she asked the accused
if they had had sex on 15 March was corroborated by the accused in the pre- text phone call.

(a)	he has told a number of lies;
(b)	his version of events in March 2019 is implausible;
(c)	his accounts are internally inconsistent; and
(d)	his manner of giving evidence was unreliable.

interview was used in evidence and the evidence is not to be given more or less weight because the evidence was given that way.
•	A direction pursuant to s 72 that no adverse inference is to be drawn against the accused because the complainant gave evidence by audio-visual link.
•	A direction about delay in complaint pursuant to s 80B that the Court would bear in mind that any delay in making a complaint does not necessarily indicate that the allegation was false and that there may be good reasons why a victim of a sexual offence may not make, or may hesitate in making, a complaint about the offence.
•	A direction about implied consent pursuant to s 80C that the Court would bear in mind that the complainant is not regarded as having consented to a sexual act because she did not say or do anything to indicate that she did not consent, or because she did not protest or physically resist, or because she did not sustain a physical injury, or because on an earlier occasion she had previously consented to sexual activity with the accused.
•	A direction in relation to mistaken belief that the complainant was consenting pursuant to s 80D. Section 80D provides as follows:

•	This Court must accept the fact of the earlier acquittal and must not use the evidence in any way to reconsider the guilty of the accused for the earlier offence of choking; and
•	This Court must not accept a view of the facts which are inconsistent with the acquittal.
•	Whilst this Court is aware that the present matter is a re-trial, the Court would

(a)	The accused engaged in sexual intercourse with the complainant on each occasion.
(b)	The accused intended to engage in sexual intercourse with the complainant on each occasion.
(c)	The complainant did not consent to sexual intercourse on each occasion.

(a)	The accused is not guilty of the charge of sexual intercourse without consent (CC 19/3501).
(b)	The accused is not guilty of the charge of sexual intercourse without consent (CC 19/3502).
(c)	The accused is not guilty of the charge of sexual intercourse without consent (SCCAN 19/3724).
(d)	The accused is not guilty of the charge of sexual intercourse without consent (CC 19/3505).
(e)	The accused is not guilty of the charge of sexual intercourse without consent (CC 19/3506).