R v WM (No 2) - [2019] NSWDC 861

District Court

New South Wales

Medium Neutral Citation: R v WM (No 2) [2019] NSWDC 861
Hearing dates: 30 April; 1, 2, 3, 6 May; 18, 19, 20, 21, 22, 25, 26 November 2019
Date of orders: 09 December 2019
Decision date: 09 December 2019
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
Warren Murray is found not guilty of counts 1 and 2 on the indictment, and not guilty in respect of the alternative offence of attempted sexual intercourse without consent.

Catchwords: CRIMINAL PROCEDURE - special hearing - sexual intercourse without consent – mental illness – burden of proof – attempted sexual intercourse without consent
Legislation Cited: Crimes Act 1900, s 61HA, s 61HE, s 578A
Criminal Procedure Act 1986, s 162
Evidence Act 1995, s 165
Mental Health (Forensic Provisions) Act 1990, s 10, s 14, s 15, s 16, s 19, s 21, s 21A, s 22, s 23
Cases Cited: Anderson v The Queen [2010] VSCA 108
R v Randall (1991) 53 A Crim R 380
Category: Principal judgment
Parties: Regina
WM (Accused)
Representation:
Counsel:
Mr T Abdulhak (Crown)
Mr B Robinson (Accused)
Solicitors:
Office of Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2015/260022
Publication restriction: S 578A of the Crimes Act 1900 (NSW) applies. A person shall not publish any matter which identifies the complainant in the proceedings or any matter which is likely to lead to the identification of the complainant. As such, pseudonyms have been used in the published judgment for all persons except for police officers and expert witnesses.

Judgment

A. Introduction

Warren Murray*[1] is charged with engaging in two counts of sexual intercourse with Sarah Martin* without her consent. In addition to denying the offences, and the statutory alternative offences of attempted sexual intercourse without consent, Mr Murray has raised, as an alternative, the defence of not guilty by reason of mental illness via a special hearing.
1. S 578A of the Crimes Act 1900 (NSW) applies. A person shall not publish any matter which identifies the complainant in the proceedings or any matter which is likely to lead to the identification of the complainant. As such, pseudonyms have been used in the published judgment for all persons except for police officers and expert witnesses. * Denotes a pseudonym.

B. A special hearing

Following an inquiry under s 10 of the Mental Health (Forensic Provisions) Act 1990 (MH(FP) Act), Mr Murray was on 19 July 2017 found unfit to be tried for the offences under s 14 of the Act. That unfitness is presumed to persist until or unless the contrary is proved, under s 15.
In accordance with s 14 of the MH(FP) Act, Mr Murray was referred to the Mental Health Review Tribunal, who in January 2018 found that Mr Murray "will not become fit to be tried for the offences with which he has been charged within 12 months of the Court's finding of unfitness", in accordance with s 16 of the Act. As a consequence, by reason of s 19, the Court is to conduct a special hearing. That hearing is by judge alone, unless there is an election under s 21A of that Act, which at the commencement of the hearing was expressly not made.
A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings, pursuant to s 21 of the MH(FP) Act. The question of whether the accused has committed the offences charged, or any alternative offence, is to be determined by the judge, according to s 21A. The verdicts available to the Court include, according to s 22:

not guilty of the offence charged;

not guilty by reason of mental illness;

on the limited evidence available, the accused committed the offence charged; or

on the limited evidence available, the accused committed an alternative available offence.

Presumably, given the reference to alternative offences in s 21A(1) and s 22(1)(d) and the "inclusive" nature of the available verdicts, the Court could also find the accused not guilty of an alternative offence.
Some of the consequences of a finding of an offence proven are set out in s 22(3), s 23 and subsequent provisions of the MH(FP) Act.
Section 21(4) obliges any jury to be aware of certain matters during a special hearing. The Court must itself be aware of these matters. The Court must bear in mind that this accused is unfit to be tried on the present charges in the normal way because in one or more respects Mr Murray does not have the mental capacity to meet all of the basic requirements of a fair and just trial. That is why the charges are dealt with at a special hearing.
Unfitness for trial is an inability on the part of an accused person to meet a minimum standard of mental capacity to be tried fairly, and may arise for any one or more of several reasons. Mr Murray may not understand the nature of the charges against him, or be able to decide whether he has a defence to them. He may not be able to make a rational decision whether he is guilty or not guilty, or how to plead to the charges. He may not be able to understand generally the nature of the criminal proceedings and what their course and outcome may mean to him. The unfitness may be an unfitness to give his lawyers instructions, that is to tell them adequately what his defence is, and in what respects the prosecution evidence is erroneous, or should be questioned and tested, or an inability to apply himself to the proceedings in an informed or constructive way. These are things that the law insists that an accused must have the mental capacity to do. The Court must accept that Mr Murray is unfit mentally in one or more of these respects so that he cannot be tried in a normal way.
One purpose of a special hearing is to see that justice is done, as best as it can be in the circumstances, to Mr Murray and the prosecution. He is put on trial so that a determination can be made of the case against him. The community has an interest in seeing that justice be done. A special hearing gives an accused person an opportunity of being found not guilty, in which event the charges will cease to hang over his head, and if he requires further treatment, it may be given to him outside the criminal justice system.
If Mr Murray is found not guilty, then that will be the end of the matter. He will be free and subject to no further criminal processes of any kind in respect of the events giving rise to the charge. If, however, on the limited evidence available the Court finds that Mr Murray did commit the offence or offences charged, the Court will need to decide whether, had he been fit to be tried in a normal way, and been convicted, he would have been subjected to a term of imprisonment, and if so, what term would have been appropriate. If the Court takes the view that a term of imprisonment would not have been appropriate, it may impose another penalty just as it might in the case of a person fit to be tried, such as a fine, an intensive correction order or other penalties.
In the event that the Court were to nominate as appropriate a term of imprisonment, it would then be for a special tribunal, the Mental Health Review Tribunal, to decide whether Mr Murray is still suffering from a mental illness and whether he should be detained in a mental health facility for treatment. His case would then come back to the Court to decide whether an order should be made for his detention in a mental health facility or otherwise. It is also possible that Mr Murray could be tried in a normal way for the offence if he should become fit to be so tried before the expiration of any nominated term of imprisonment.

C. Issues

The first count in the indictment involves an allegation of penile-oral sexual intercourse without consent. The issues in that count are:

(1) whether Mr Murray engaged in oral sexual intercourse with Ms Martin; and

(2) whether Mr Murray had knowledge of the lack of consent.

The other element of the offence, that Ms Martin did not consent to the sexual misconduct, was not challenged by Mr Murray, but was expressly conceded in submissions in the event the "sexual acts [were] carried out". [2]
2. 26/11/19, T536/25.
The second count in the indictment involves an allegation of penile-vaginal sexual intercourse, and, again, the issues are:

(3) whether Mr Murray engaged in sexual intercourse with Ms Martin, and, in particular, whether penetration occurred; and

(4) whether Mr Murray had knowledge, in the relevant sense, of a lack of consent.

The same comment applies about the unchallenged additional element of a lack of consent and the concession in the event of sexual acts.
Section 162 of the Criminal Procedure Act 1986 provides that:

“If, on the trial of a person for any indictable offence, the jury is not satisfied that the person is guilty of the offence, but is satisfied that he … is guilty of—
(a) an attempt to commit the offence, or
(b) an assault with intent to commit the offence,
it may acquit the person of the offence charged and find the person guilty of the attempt or assault…”

The Crown made no submissions in respect of paragraph (b) - assault with intent - and I do not propose to consider it. In respect of paragraph (a), the Crown has expressly disavowed any alternative case to count 1 of Mr Murray attempting to have penile-oral sexual intercourse. But attempted penile-vaginal sexual intercourse without consent as an alternative to count 2 was a live issue at the trial, and requires consideration in the event that the Crown has failed to prove the offences in the indictment.
Although s 162 applies to a "trial of a person" and "jury", both parties submitted that it was applicable to a special hearing by reason of s 21(1) of the MH(FP) Act. In any event, ss 22(1)(d) and 23(1) of that Act make clear the availability of the alternative offence of attempt.
The available alternative offence of attempt raises additional issues, namely:

(5) whether Mr Murray intended to commit the physical act of penile-vaginal sexual intercourse knowing that Ms Martin was not consenting; and

(6) whether Mr Murray did some act towards having sexual intercourse without consent, which was immediately connected with that crime, and which cannot have any reasonable purpose other than the commission of that crime, an act that is more than mere preparation to commit the offence, but involves embarking on the commission of the crime.

In addition, Mr Murray has raised an alternative defence, in respect of any offence otherwise established, namely that he was not guilty by reason of mental illness. That defence involves proof by Mr Murray, on the balance of probabilities, of the following elements:

(7) whether Mr Murray at the time of the alleged offence had a disease of the mind;

(8) which produced a defect of reason;

(9) so that Mr Murray either did not understand the nature and quality of the acts, or he did not know that what he was doing was wrong.

I note that the numbering that I have given these issues is not reflective of the elements in any particular offence or defence.
These nine listed matters are the issues in this special hearing relevant to one offence, or another, or the defence raised by Mr Murray. Some of these issues involve other matters in dispute, such as issues of credit and matters of detail.

D. Burden and standard of proof, and verdicts

In relation to each of the elements of the offences, the burden of proof remains at all times on the Crown, and the criminal standard of proof, beyond reasonable doubt, is applicable. Mr Murray is entitled to a verdict of not guilty unless every element of an offence is proved by the Crown beyond reasonable doubt.
The burden of proving the defence raised by Mr Murray of not guilty by reason of mental illness is upon him, but only to the civil standard. If the Crown proves all the elements of an offence charged or an available alternative offence beyond reasonable doubt, and the Court is satisfied on the balance of probabilities that at the relevant time Mr Murray had a disease of the mind producing a defect of reason that resulted in him not knowing the nature and quality of his acts or that they were wrong, then he is entitled to a verdict of not guilty by reason of mental illness.
If the Crown proves all the elements of the offence to the criminal standard, beyond reasonable doubt, and the Court is not satisfied on the balance of probabilities that Mr Murray has established the elements of the defence of not guilty by reason of mental illness, then the appropriate verdict is that on the limited evidence available the accused committed that offence.

E. Count 1 - Sexual intercourse without consent

As indicated above, the Crown must prove beyond reasonable doubt:

that at about 11pm on 28 May 2015 at Beames Avenue, Mount Druitt, Mr Murray had penile-oral sexual intercourse with Sarah Martin;

without Sarah Martin’s consent;

knowing that Sarah Martin did not consent.

The first element involves proof by the Crown of penile-oral sexual intercourse. Adopting the definition in s 61HA of the Crimes Act 1900, it requires "sexual connection occasioned by the introduction of any part of the penis of" Mr Murray "into the mouth of" Ms Martin.
Direct evidence of this sexual assault was given by Ms Martin.
Ms Martin gave evidence of how she was walking on the footpath and "it felt something from the sky just went bang…bang, I didn't see it, just bang, I hit the ground so hard and fast". She continued, "I looked and a black man was laying on top of me, he pinned me, pinned me down so I couldn't move". She accepted that the man had black skin. She said she was facing up. She said, "He pushed his weight on top of me, he pinned…held me down tight on the ground. I could not move". She said her left arm was over her head. She said, "He pulled my track pants down and he kept saying, 'I love you, I love you, I love you' and 'you know you want it, you know you want it'".
Ms Martin denied an ability to estimate the man's age, but when pressed to provide an age of the man, Ms Martin said, "I would say maybe late 30s, 40s, I couldn't say apart from that". She had never seen the man before, nor had he spoken to her before she fell to the ground. She stated that, "He...put his penis into me so hard and fast". She said that he was wearing, "Beige trousers and I think it was a top he wore and a jacket, it was a jacket like this", and that, "He had his pants down too…After he took mine down, just after". Then she said:

“he put his penis into my stomach, my vagina. And pushed and pushed and pushed and pushed… Then he started to get a little bit agitated, got up straight to, then he pulls my head up to his penis and forced me to suck it off, so to say so it hard to get hard - so to keep. And he was hurting me.”

When asked whether “[t]hat first time, did [his] penis enter your vagina that first time”, Ms Martin said, “half way…he got it half way in”.
This evidence where Ms Martin testifies "he forced me to suck it off" forms the basis of count 1. Ms Martin, in respect of this event, said in answer to when it occurred, "Was he sitting, standing?", she said, "No laying, laying on top of me still. He kept pinning me down so I couldn't move still". She said the occasion when he put his penis into her vagina described earlier lasted five minutes, and this incident, "when he placed his penis in [my] mouth” lasted “A couple of minutes definitely then when he put it, shoved it down like that" and "about five minutes". She was asked, "[A]fter the penis was in your mouth, what happened after that?" and she said, "It went out and have, he couldn't get it to harden up still so he put his fist up towards my face like this".
Thereafter, Ms Martin described further conduct which forms the basis of the second count in the indictment, to which I shall return.
This account of non‑consensual oral sex was challenged by Mr Murray.
The primary challenge was that the event differed substantially from earlier accounts given by Ms Martin about the events of that night.
Ms Martin answered some questions asked by a then police officer, Constable Laura Smyth, on the night of the incident. Officer Smyth's notebook account was in evidence. Officer Smyth gave no evidence of any complaint of penile-oral sex, and her notebook records no such complaint.
Another police officer who attended, Sergeant Hadfield, gave evidence that Ms Martin was heavily intoxicated and complained of the man trying to rape her. Ms Martin said the same thing to Detective Senior Constable Hannah Taylor, according to Officer Taylor's evidence. Neither recorded any complaint concerning oral sex.
Ms Martin accepted that the instance of oral sex came back to her memory very recently. A series of questions and answers were given, the effect of which is not altogether clear, at least in respect of this count; namely:

“Q. …I want to suggest that you were not assaulted; what do you say about that, no-one had sex with you?
A. I answered that, no.
Q. And no-one put their penis in your mouth?
A. No.
Q. You say they did?
A. Right, yeah. Okay, to that assault that night--
Q. All right?
A. --no-one touched me.
Q. Yes, I’m asking you about that night, when you say that you were assaulted only?
A. Yes, yes.
Q. Are you sure that you were assaulted that night?
A. Yes.”

In re‑examination, Ms Martin was asked:

“Q. Now are you able to recall how many days, weeks, or months, or years after you spoke to Dr Kent you first recalled the part of the incident where the penis was in your mouth?
A. Two months - months.
…
A. It come to me, and I was thinking at home, during some evening…”

Ms Martin gave evidence that she visited a medical practitioner named Dr Kent* on 29 May 2015, the day following the incident. She told Dr Kent, she testified, "Everything that needed to be told to him" and "Everything". Initially in her evidence, Ms Martin repeatedly asserted that she told Dr Kent that the black man had forced her to suck his penis. She subsequently accepted, in respect of telling Dr Kent of the man forcing her head onto his penis, that, "I didn't tell him no, everything he asked me, that came later". She twice accepted that the "part where he pulls my head onto his penis" came to her "[j]ust recently".
Ms Martin accepted that she gave a statement at the Mount Druitt Police Station on 1 June 2015 where she told them, "All, everything", and that there was nothing in the statement about the man forcing her mouth onto his penis. She said, "That came later, that just come to me and I said that came recently in that statement". She accepted it came to her recently, that it was something that she had "recently remembered", although she resisted the suggestion that she had imagined it.
Evidence was also given by one of Ms Martin’s friends, Samuel Bramble*, and, by a statement from another friend, Darren Henderson*, who is deceased. Neither Mr Bramble nor Mr Henderson's statement gave evidence of an assault involving penile-oral sex.
Further, there was evidence from some six young people who attended the scene at, or shortly after, the time of the incident, who gave evidence of hearing something spoken by Mr Murray and Ms Martin. None of the evidence from those six young people, whether by oral testimony or a statement, referred to penile-oral sex.
The Crown accepted that no statement recording an allegation of oral sex was made until April 2019. The explanation for this recent memory is no more or less than that it came to Ms Martin very recently.
Thus, Ms Martin’s complaints cannot be evidence of a penile-oral sexual assault because they make no reference to it. Nor do these complaints support Ms Martin’s evidence of this form of sexual assault, again because they make no reference to it. On the contrary, the continued absence of such a complaint militates against the reliability of Ms Martin’s evidence, at least on this matter of a penile-oral sexual assault.

There are other matters relied upon by Mr Murray to challenge Ms Martin’s credit. I do not propose to deal with them at this stage of the judgment as they do not serve to strengthen Ms Martin’s account of the penile-oral sex about which she gave evidence.
Ms Martin’s account in the witness box, recently remembered, is the only evidence to support the allegation of a penile-oral sexual assault. She spoke to her doctor, three police officers, several youths and two friends shortly after, or in the days following, the incident, and at no time mentioned the sexual intercourse alleged in count 1. She did not recount it for some years, but it came to her recently. Inconsistently, she also said it came to her some few months after the incident. In all these circumstances, I am not convinced beyond reasonable doubt that the sexual intercourse alleged in count 1 occurred.
Accordingly, I would enter a verdict of not guilty in respect of count 1.

F. Count 2 - Sexual intercourse without consent

Count 2 concerns an allegation of penile-vaginal sexual intercourse that occurred after the occasion of the penile-oral sexual intercourse asserted by Ms Martin. This count is not concerned with the events earlier recounted in this judgment, where Ms Martin said Mr Murray, "he put his penis into my stomach, my vagina" and "he got it half way in", which Ms Martin asserted occurred before the oral sex allegation that I have dismissed. That is a matter that was not the subject of any charge, as I understood the Crown's explanation, because it was not contained in any account by Ms Martin prior to her testimony in the witness box.
Sexual intercourse is defined in s 61HA of the Crimes Act 1900 as:

“(a) sexual connection occasioned by the penetration to any extent of the genitalia … of a female person … by—
(i) any part of the body of another person”.

Thus, the element raises a question of whether there was "penetration to any extent" of the "genitalia" of Ms Martin by Mr Murray's penis. It is sufficient that there be penetration to any extent, even if only slight or fleeting,[3] but it is not sufficient if there be only touching. [4]
3. Cf R v Randall (1991) 53 A Crim R 380, although the legislation was slightly different.
4. See Anderson v The Queen [2010] VSCA 108, note the slightly different wording.
Ms Martin gave evidence that "after the penis was in [her] mouth", she said, "It went out and have, he couldn't get it to harden up still so he put his fist up towards my face like this", and she held a clenched fist next to her face near her cheekbone.
Ms Martin was then asked, "And now did his penis go into your vagina at any time after the mouth?" She had not given earlier evidence to this effect. She answered, "Yes."
The evidence continued:

“Q. And--
A. So I, it wasn’t - still half.
Q. Still half way?
A. Yes.
Q. Were you saying anything while this was occurring?
A. Yes - all I yelled out so quiet, so, ‘Please help.’
Q. You said, ‘Help.’?
A. Yes. But I had to say it quiet so because he had his fist like this.
Q. Because he had his fist next to your face?
A. Yes. What did you say? What did you say?
Q. And are those words he said, ‘What did you say?’?
A. Nothing. I was too frightened, too pinned down and too frightened. I froze. I absolutely froze.”

Ms Martin was subsequently asked:

“Q. Now the second time that the man had his penis in your vagina, how long did that last? Seconds or minutes?
A. Minutes.
Q. Yes. And just how many minutes approximately?
A. Five, he just kept going at that like a pump, so he.
Q. And what happened after that?
A. Just because he couldn’t make it—”

There was then a short adjournment at the request of the Crown, and the final question quoted was not asked again.
Thus, in evidence‑in‑chief, Ms Martin’s evidence on this count concerning the man's penis penetrating her vagina resulted from a leading question, and her evidence as to the sexual intercourse ending was incomplete and in that respect somewhat unsatisfactory.
As I indicated earlier, a number of persons gave evidence of the complaints Ms Martin made at or shortly after the incident.
Six youths approached Ms Martin and the man during or shortly after the incident. None gave evidence of a complaint by Ms Martin that asserted sexual penetration, or gave evidence that could establish penetration.
Ms Martin was spoken to by Constable Smyth at the scene of the incident. The officer's notebook records Ms Martin saying, "He took my clothes off and he tried but he didn't". And, "He tried to penetrate me but he couldn't". Both of these complaints deny penetration. She also said, "He forced himself, I thought if I didn't obey his wishes he would punch me". I do not regard this, at least in the context of the other two quoted statements in the notebook, as a complaint involving sexual penetration.
Ms Martin also gave evidence that she told Dr Kent and Mr Henderson what had happened. As I said, Mr Henderson is deceased. In a statement given a year after the incident, he said Ms Martin told him, "I got raped", but later Mr Henderson's statement records:

“Q. …did she tell you what he tried to do to her?
A. Yeah.
Q. What did she say?
A. She said he, he tried to pull her knickers down.
Q. OK.
A. And then, uh, he didn’t penetrate her.
Q. Uh-huh.
A. But he got close.
Q. Got close…”

Dr Kent gave evidence that Ms Martin saw him on 29 May 2015, and he wrote down the details of what she told him. The doctor's notes record:

“A black man ? african allegedly tried to sexually assault her last night…her pants was ripped off…assailant unable to penetrate…got punched, she was pinned down n tore her pants away. took his penis out n attemptedto penetrate”. [5]
5. Exhibit G.

Dr Kent’s notes also record that there was "no evidence of soft tissue injuries to vaginal perineum n inguinal regions".
Samuel Bramble, a friend of Ms Martin, also gave evidence that Ms Martin told him that the man “threw her to the ground and raped her or assaulted her", and that, "he dragged her in there, and, ripped her clothes off, and attempted to rape her. Or attempted to have sex with her".
Part of a statement of Mr Bramble dated 31 May 2016 was admitted. In that exhibit, Mr Bramble is recorded as asserting that he was told by Ms Martin that, "she was approached by a Sudanese man...He then grabbed her...threw her to the ground, proceeded to try and rip her clothes off...he tried to rape her...tried to have sex with her". [6]
6. Exhibit L, As to Q9-Q11.
Accordingly, there is no clear complaint involving penetration. Rather, Constable Smyth, Mr Henderson by a statement, Mr Bramble and Dr Kent all give evidence of a complaint of attempted sexual penetration.
In cross‑examination, Ms Martin gave evidence of the man putting his penis back in her vagina. Ms Martin asserted at first that she did tell Constable Smyth of the oral sex and the sexual intercourse. Then she said, "I just told her was raped, what he did to me. It's very confusing that night. I couldn't talk much at all to anyone at the time". She accepted that she told a male police officer, "The black man tried to rape me". She denied telling Mr Henderson, "He did not penetrate me", but she accepted that she told Dr Kent, "I said he tried to penetrate me but he couldn't".
Ms Martin also accepted that she signed a statement on 1 June 2015 where she said, "He tried to put his penis into my vagina but he couldn't" and "The tip of his penis touched the outside of my vagina", but, "He tried to force it inside my vagina but it couldn't go in. My body just closed up". I do not regard her evidence that the tip of his penis touched the outside of her vagina as evidence of penetration, even of the external genitalia, without some further evidence, detail or explanation.
Accordingly, Ms Martin’s initial statement gives an account of attempted sexual intercourse, and asserts that there was no penetration.
It may be that in the period after the incident when she asserted that there was no penetration, Ms Martin has adopted a meaning of "penetration" different from the minimal, fleeting penetration of the external genitalia sufficient to constitute penetration for the purpose of the offence of sexual intercourse without consent. But there was no evidence of this. Her account in the witness box of penetration is not supported by any complaint at or about the time of the incident, and the content of her complaints in several instances tends to disprove penetration.
Again, there are other matters on which Ms Martin’s credit was challenged. But they do not support her evidence, nor explain the repeated complaints inconsistent with penetration.
In these circumstances, I am not convinced beyond a reasonable doubt that sexual intercourse occurred. Mr Murray is entitled to a verdict of not guilty on count 2.
Before I turn to the statutory alternative offence of attempt, I propose to deal first with the defence of mental illness. Evidence relevant to the defence includes evidence about Mr Murray's mental condition at the time of the offence, a matter that may be relevant to the events that transpired on that night. But the defence is only applicable if I do find the attempt proven to the criminal standard, a matter to which I will subsequently return.

G. Defence of not guilty by reason of mental illness

A mental illness defence requires the Court to consider whether at the time Mr Murray committed the acts alleged by the Crown, he was mentally ill so as not to be responsible according to law.
The onus on this issue is on the accused. However, the standard of proof is not so high as that required of the Crown, and it is sufficient if the accused establishes on the balance of probabilities, or more likely than not, that he was mentally ill at the time of the doing of the acts constituting the alleged offence. If so, then Mr Murray is entitled to a verdict of "not guilty by reason of mental illness".
The relevant time to be considered is the time when the Crown alleges that the act constituting the offence was done, which was approximately 11pm on 28 May 2015. The Court is not concerned, directly, with the mental state of the accused before or after that time, except insofar as it assists in determining what the accused's mental state was likely to have been at the time of the alleged offence.
To establish that the accused was mentally ill so as not to be responsible according to law for his acts, the accused must show that, as a result of a defect of reason from a disease of the mind, he did not appreciate the nature and quality of the alleged physical act, or that he did not know that the act was wrong. The alleged physical act would be attempting to have sexual intercourse without consent.
What then is meant by "disease of the mind" which produces such a defect of reason? The accused's state of mind must have been one of disease, disorder or disturbance arising from some condition which may be temporary or longstanding, whether curable or incurable. Such a condition may have been caused by some physical deterioration of the brain cells, but need not necessarily be so caused. It may arise from some mental malfunction with no apparent organic basis or where the cause of the disease may be unknown, provided in all cases that it results in the function of the reason, memory or understanding being thrown into a state of derangement or disorder. The distinction to be drawn is between a defect of reason from an underlying mental illness as distinct from the reaction of a healthy mind to some extraordinary external factor which is transient, that is, passing and not prone to recur.
A defect of reasoning, memory or understanding involves a disorder of the capacity to reason such as one that prevented the accused from knowing what he was doing in that he did not know the physical nature or quality of the act, or did not know that the act was wrong according to the ordinary standards of reasonable people in the community.
As to whether the accused did not know the act to be wrong, the question the Court should ask itself is whether the accused could be said to know in the sense of appreciating or understanding that his act was wrong, if through a disease, disorder or disturbance of the mind he could not think rationally of the reasons which to ordinary people would make that act right or wrong.
Thus, the defence has the following elements:

disease of the mind;

producing a defect of reason;

such that Mr Murray did not appreciate the nature and quality of the attempted sexual intercourse without consent, or that he did not know the act was wrong.

Two psychiatrists gave evidence in respect of this issue: Dr Jonathon Adams and Dr Gerald Chew.

(a) Disease of the mind

In his report dated 4 April 2019, Dr Adams wrote:

“in my view it is reasonable to suggest that Mr Murray might have been suffering from symptoms of schizophrenia at the material time of the alleged offence hence it could be argued that he was suffering with a ‘disease of the mind’…during this period”.

Dr Chew was more adamant. He said that:

“At the time of the index event Mr Murray was almost certainly suffering from a ‘Disease of the Mind’ namely Schizophrenia. I base this opinion on the evidence that he had developed a psychotic disorder from at least 2014”. [7]
7. 11/8/18, p12 of 14, [36].

Dr Chew later referred to the history Mr Murray gave him that he:

“Attributes the loss of his grandmother and job in 2014 as the beginning of his symptoms and illness. He said that he started developing paranoia and hearing voices from this time. He reported that people talked about him and that he received specific special messages from the television at that time.” [8]
8. 22/11/18, p 5 of 9, [15].

And stated:

“There is evidence of contact with mental health services from at least 2015. Chronic psychotic illness generally presents in early 20’s so it is likely he has been developing and suffering from this condition at this time.” [9]
9. 22/11/18, p 7 of 9, [25].

Dr Adams’ acknowledgment that Mr Murray "might" have been suffering from symptoms of schizophrenia leaves open the question of whether, on the balance of probabilities, he was so suffering. In Dr Adams’ evidence, the following exchange occurred:

“Q. With the depressed mood, are we looking here at this emergence of this psychotic illness at this point, do you think?
A. With hindsight. Yes. I would agree that it is reasonable to say that it’s possible but this is where Mr Murray’s schizophrenic illness dates back to. Yes. But based upon those entries there of depressed mood, anxious, suicidal thoughts. If we go back to that point in time, you could not make a diagnosis of schizophrenia…”

I interpolate that, of course, the Court is not concerned with whether a diagnosis could then have been made, but whether a disease of the mind existed, and all the evidence at the trial, even evidence after the event the subject of the charge, can be used.
Dr Adams continued:

“Q. Would you make a diagnosis at this stage that he was at the stage of prodromal schizophrenia at this point?
A. Only with the benefit of hindsight. You couldn’t then. So then and there at the point of that assessment. It’s a clinical possibility but there were no clear features then upon which to make a diagnosis of schizophrenia or indeed a prodrome of schizophrenia and that’s why, for example, in my view, my interpretation of the entries. Again, it’s, it’s important to state that we’re interpreting historical entries here. We weren’t the clinicians assessing him. This is my formulation. My view would be that he was thought to be depressed, he was treated for depression and that diagnosis changed over time which is entirely plausible.
Q. You cannot rule out the possibility that as of 24 April 2015 that Mr Murray was in the prodromal stage of - that is the development stage of schizophrenia?
A. I apologise if I’m confusing the court. Now? Here and now, today?
Q. Yes.
A. And when I wrote my reports I agree that it’s most likely that he was in a prodromal phase of his onset of schizophrenia, yes.” [10]
10. T283/42-284/10.

Dr Adams later gave evidence:

“Q. You agree that the prodromal stage, that is the developing stage of schizophrenia, is a disease of the mind?
A. In general terms, yes.” [11]
11. T291.

Dr Chew gave evidence that, "I’m almost certain that he was suffering from psychotic disorder at the time, or at the very least a prodrome of a psychotic disorder".
Accordingly, the psychiatrists agree that it was likely that Mr Murray was at least suffering at the prodromal stage of a psychosis, and that this was a disease of mind.
Accordingly, I am satisfied of this element on the balance of probabilities.

(b) Defect of reasoning

Dr Adams initially reported that:

“there is insufficient information upon which to base any informed comments regarding [Mr Murray’s] mental state, and how aspects of his mental state might have impacted upon his alleged behaviour at the material time. Consequently I am not able to offer an informed opinion as to whether Mr Murray was suffering from a ‘defect of reason’ at the material time”.

Dr Adams prepared a subsequent report replying to Dr Chew's report and referring to other aspects of the evidence and medical records, and concluded that his opinion had not changed. He said:

“there was no specific references to features consistent with a diagnosis of schizophrenia. There was no reference to Mr Murray’s thought processes being disintegrated or his response style being difficult to follow, consistent with a thought disorder. There was no reference to Mr Murray’s behaviour being disorganised, disturbed, hostile, aggressive or sexually inappropriate.”

Dr Adams refers to Sergeant Hind-Spiteri noting that Mr Murray was able, shortly after the incident, to follow a line of questioning and provide a "consistent and detailed narrative regarding the robbery" during which he appeared "lucid and alert". Dr Adams said:

“in my view there are no clear grounds to conclude that at the material time of the alleged offence, Mr Murray’s decision making and judgment and rational thinking were impaired by symptoms of schizophrenia”.

Dr Chew reported that:

“I think that it is likely that he was suffering from a ‘defect of reason’ at the time of the event – namely active psychosis being auditory hallucinations and paranoid delusions. I base this on information that he was probably not compliant with treatment. Mr Murray has a high chance of relapse with non-compliance.” [12]
12. 11/8/18, p 12 of 14, [37].

There was no evidence that Mr Murray was "probably not compliant with treatment". The closest the evidence reaches in the period proximate to this incident is that Mr Murray appears to have run out of medication on 24 January 2016, because two days later [13] he reported this to an ambulance he called. Also, he missed one appointment with Dr Green* in about June 2015.
13. Exhibit H, p 85.
Dr Chew, in a later report, referred to the history that Mr Murray provided in 2018 about the effect of the loss of his grandmother, hearing voices, paranoia and receiving specific messages from the television in a passage quoted earlier. None of these matters are indicated in the contemporaneous documents.
Thus, to accept the conclusion of Dr Chew is to accept the untested history of Mr Murray, a patient with a psychosis, and to accept matters, including the dates provided by the patient, in relation to delusionary events said to have occurred four years previous, when the contemporaneous documents provide no support. Mr Murray, at that earlier time, was regularly attending doctors, but made no complaint of any delusional behaviour until January 2016. Because of the contrary contemporaneous records, I do not accept Mr Murray's 2018 history that he gave to Dr Chew as accurate, and thus conclude that Dr Chew's opinion based upon that history is flawed.

In his final report, Dr Chew conceded that the documentary history did not reveal features of psychosis. He reported:

“Medical records in the month leading up to the event show that he was presenting to his GP for mental health issues. While there is no documentation at that time of overt psychosis, I think it is likely given the longitudinal history of his illness that he was likely psychotic at the time. He was not taken any antipsychotic medication at the time. Further, observations by police on the day of the event are suspicious for instability of his mental state.” [14]
14. 3/5/19, p 4 of 6, [11].

Thereafter, Dr Chew repeated his earlier conclusion. He added, "[H]owever on balance I think that it is likely that active psychosis would have caused him difficulty in reasoning about his actions".
It is true that Mr Murray was not taking antipsychotic medication at the time of the event, but there is no evidence that merely being in the prodromal stage warranted such medication. The features of Mr Murray at the time of the incident revealed by the contemporaneous records were that in April 2015 he was of depressed mood, anxious and had suicidal thoughts but not suicidal attempts, and that he was prescribed Lexapro, an antidepressant medication. Thereafter, steps were undertaken to create a mental health care plan for Mr Murray.
On 5 May 2015 a mental state examination found Mr Murray to have depressed mood and "suicidal idea", but nil abnormalities in his "affect", "psychomotor thought" or "judgment" aspects. He visited his doctor on 13 May 2015 because of a vitamin D deficiency and his stuttering problem, and the doctor noted that he was taking antidepressants.
Shortly after the incident on 3 June 2015, Mr Murray sought a referral to see a psychologist but had "no acute medical issues".
Dr Chew referred to observations by the police. This reference appears to relate to two matters, Mr Murray's allegation of a robbery, and his unwillingness to leave the police station without his wallet and phone. But the probative value of these matters to this issue depends substantially on whether Mr Murray's assertion of a robbery was delusional. That it "could have been" (as Dr Chew states), without more, is insufficient. It may, alternatively, have been a reasonably held belief. The allegation of a robbery was forcefully put to Mr Daniel* by Mr Murray's counsel. I will return to matters which might suggest that the claim of a robbery is not entirely without foundation. Another alternative is that the assertion of a robbery was a knowingly false exculpatory statement, a position maintained by the Crown. Neither of these alternatives is consistent with a psychotic episode.
I am not persuaded on the balance of probabilities that Mr Murray's prodromal stage psychosis produced a defect of reason as at 28 May 2015, principally because the medical reports provide no support for it, but tend, on balance, rather to deny it. No reasoning was added by Dr Chew to support the stronger conclusion in his final report about "difficulty in reasoning".

(c) Not knowing the nature and quality of the act, or that it was wrong

For completeness, I turn to the final issue of this defence.
Dr Adams reported that there was "no entries in the collateral information to suggest that [Mr Murray] did not understand the nature and quality of the alleged offending behaviour", and that "there are no sufficient grounds to conclude that Mr Murray did not have the capacity to understand the moral wrongfulness of the alleged incident".
Dr Chew reported that:

“It is difficult to provide an opinion whether this defect of reason [that Dr Chew found] caused [Mr Murray] to not know the nature and quality of his acts or if acts were legally or morally wrong.
Therefore on the balance of probabilities I think he has the mental illness available”.

But the defence is only available if the thing upon which Dr Chew found "difficult to provide an opinion" on is established on the balance of probabilities. The difficulty Dr Chew opined is insufficient to persuade me to this standard.
In his final report, Dr Chew repeated the conclusion in the penultimate sentence quoted and added, as I noted, the thought about "difficulty in reasoning" without additional support.
Difficulty in reasoning about action is not sufficient to establish either alternative limb of the final element: not knowing the nature and quality of his acts or not knowing that they were wrong.
On the night of the incident, Mr Murray answered the allegation of an attempted sexual assault with the assertion of a robbery. There was no suggestion from that answer that he did not know the wrongfulness of a sexual assault. Whether his assertion implies an understanding of the nature and quality of the alleged sexual misconduct might be uncertain, but his onus on this question is not discharged by this uncertainty.
Dr Adams gave evidence that when he examined Mr Murray recently, none of the features of hallucinations, delusions or thought disorder entailed "sexual or sexualised type notions"; that there were "no underlying themes...of a sexual nature and...no sought of further description...of inappropriate sexual behaviour in the context of his schizophrenic illness". These seem to me to be reasons why the disease of the mind - a prodrome of a psychotic disorder - did not lead to an inability to understand the nature and quality of the alleged sexual misconduct or the wrongness of it.
Dr Chew maintained that delusions and hallucinations make it difficult for people to understand actions are right or wrong. That seems a reasonable conclusion, but that does not mean that the defence is established unless those delusions operate on this occasion in respect of the particular conduct alleged. The doctor accepted that it is difficult to know whether a disease of the mind caused Mr Murray to know the nature and quality of the act, but the doctor was ready to "extrapolate" from difficulty and possibilities to reach a conclusion "more likely than not" [15] without any real foundation that I could discern. In a legal context, if not perhaps in a psychiatric one, I preferred the reasoning of Dr Adams, and came to the view that there was insufficient material to satisfy me that the final element was made out.
15. See T300/5-15.
For these reasons, if the allegation of attempted sexual intercourse without consent is established, I would not find the defence proved.

H. Attempt

I turn back to the statutory alternative offence of an attempt to have sexual intercourse without consent.
The elements of the offence of attempted sexual intercourse are:

the accused intended to commit the offence of sexual intercourse without consent, in the sense that he intended to commit all the physical acts which would constitute the crime attempted. In the present case, in order for the offence to be proved, Mr Murray must have intended to have sexual intercourse with Ms Martin knowing that she was not consenting.

Mr Murray, with the above intention, did some act towards committing the intended crime which was immediately connected with the commission of that crime and which cannot have any other reasonable purpose other than the commission of the intended crime. The act must be more than mere preparation to commit the offence. Mr Murray must have actually embarked upon the commission of the offence he intended to commit.

As stated earlier, Mr Murray conceded that Ms Martin did not consent to any sexual acts that are proved to have occurred.
Thus, the issues that arise in the offence of attempted sexual intercourse are:

did Mr Murray intended to have sexual intercourse without consent;

did Mr Murray do some act towards committing the crime which was immediately connected with the commission of the crime and not mere preparation; and

did Mr Murray know that Ms Martin did not consent.

(a) Background

Ms Martin gave evidence of how at about 10pm she commenced walking home from the residence of her friend, Darren Henderson, after spending the day with him. She walked along Beames Avenue towards Mount Druitt Railway Station. There, the incident occurred, as was recounted earlier. Ms Martin said some "Samoan young men" came to her assistance.
Vincent Daniel* came from custody to give evidence. He said that he was walking with his former girlfriend, Michelle Paisa*, on the night in 2015. He was then 15. He recounted:

“Like, I, I was, I was walking. I was walking with my girlfriend, my ex girlfriend. And seen that, seem him, like, seen him on top of, that old lady. So I walked over to them. And, my ex missus was telling me, like, she was telling me like, maybe, maybe it's just, they're just having, like, you know? Having the, like, thingy, but it didn't look right, cause here they all fucking, like, is on the side of the road, on the side of the footpath. Like in, like, doing that, that stuff, you know. So I walked up to him, and my ex walked, she ran down to Mount Druitt station, and she went and got couple, a couple of my mates. They ran down, and I, I smacked him a couple of times. And then I smacked him with a trolley. And I told him, like, ‘Why the fuck would you do that to an old lady’, you know? And then, he was trying to offer me money. I said, ‘No, I don't want your fucking money. You fucking’.” [16]
16. 3/5/19, T203/40-204/1.

Mr Daniel said the man "was dark. He had, one leg was, one leg was skinny. And one leg was big. And...he had no pants". He said he punched him a few times and smacked him around with a trolley. He said the man was in his 30s; that he was "[a]bout the same height" as Mr Daniel, which was "probably like five. I don't know. Yeah, four, something like that". Mr Daniel said it was dark, that "He was a black person. He had, he had a small leg". That the man's pants were down when he was on top of the woman, and that "as he was pulling his pants up, I think I smacked him then".
Of Ms Martin, Mr Daniel said she was "wearing a skirt or something. Like her skirt was up", and that "she was, like scared, traumatised".

“Yeah, he was on top of, he was on top of her, and, like, it was like a, like a, fuck, like, he was on top of her, you know?
Q. Was he doing anything with his body?
A. Yeah. He, he was like, moving his body. Like, shit the grown people do, you know. I don't want to talk about it, you know.
…
A. Like, like having sex, like normally, you know.”

Mr Daniel said his mates ran down, including his "girl mates", and he "heard the cops come, so I went". He said he left because "I thought I was going to go, get in trouble. But I was on the missing list, as well. But I thought I was going to get in trouble, yeah". Mr Daniel said that his mates were "Ricky" "Tediki", who was older than him, "like 16, 17" and "Tarna", a little younger, and "Shanti".
Mr Daniel said his ethnic background is Samoan. Mr Daniel denied any drinking. He made a statement dated 8 March 2017. He said he was 3 metres away when he first saw something, a black man on top of a lady, and appeared to accept that the man was a black African man. He said he knocked him out. He denied taking the African man's pants off saying, "His pants was already off. What do you mean?" He said the man pulled his underwear and pants up, "and then I, launched at him". He said the man offered him money, but he did not see the money and said, "No, I don't want your fucking money". Mr Daniel denied that he left because he had robbed the black man. He said, "I was reported missing".
Mr Daniel's answers indicate that he felt justified in assaulting the black man, although he gives no evidence that Ms Martin was not consenting to the sexual conduct, save for the place where he found them, and that he subsequently observed her to be scared and traumatised.
When asked if Mr Murray had a wallet with him, Mr Daniel answered, "I seen his wallet, but never, like, seen anything in it" raising a question about whether he looked inside the wallet. His statement was given two years after the events, and I was uncertain whether his recollection was accurate on matters of detail.
There was evidence before the Court that Ms Martin "suffers from dystonia which affects her speech", and the Court observed this of Ms Martin’s testimony. It made the impact of her answers less clear. The condition may have impacted on Mr Daniel's view or recollection of her being traumatised.
It was submitted, and I accept, that I need to bear in mind that Mr Daniel's evidence may be unreliable because he might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings under s 165(1)(d) of the Evidence Act 1995, at least because of the extent of the assault he described, if not because of an alleged robbery. It is not suggested that Mr Daniel was an accomplice of Mr Murray in the alleged offences, but s 165 seems to extend beyond accomplices.
The reliability of Mr Daniel's evidence may also be adversely affected by the two-year delay before he was asked to give a statement. It may also be affected by his possible state of intoxication, a matter to which I will return. Mr Daniel's demeanour did not indicate to me a lack in the genuineness of his evidence, but demeanour is not always of great value in assessing credibility.
Michelle Paisa did not give evidence. An audio recording of a record of interview conducted almost two years after the incident was admitted. Ms Paisa was 16 at the time of the interview. She said at about 8pm, "we caught the man with the lady" where "she was on the bottom he was on top...like face to face sort of thing". She "went and got" her friends. Her friends were Julia Palmer*, Thomas Taalo*, and Vincent Daniel, her ex‑boyfriend. She said the man was really skinny with "something wrong with his leg", and, "he looks African". Initially she "just looked and looked away". Then her ex‑partner, Vincent Daniel, approached them and asked what they were doing and "I think he just hit him straight away". She said the man "said that the lady had stolen his money or something, or his wallet".
Ms Paisa said she was about 2 metres away. She saw the lady start crying. When she stood up, she looked scared, and “her pants and that, both the outer layer of clothing and the inner” were down “all the way to her ankles". She has seen and spoken to the lady a lot thereafter in Mount Druitt. She said the lady was old and light skinned. The man was wearing "brown pants...A hat, black jacket". His "pants was down but then when...we went closer he had pulled them up and stood up”. His pants had been down “[p]robably up to his knees".
Ms Paisa in her interview stated that Mr Daniel "just physically hit him with his hand and threw the trolley towards him saying 'Why would you do that'". She said they left, and then heard the police arrive.
Two young persons, Tim Pago* aged 15 at the time and Stephanie Efu* aged 17, gave statements later in the evening to the police. Those statements were admitted into evidence, although neither person gave oral evidence. Mr Pago's statement that he was called to the scene by his "mates misses", and that he saw "that the African guy" and "the old lady" and that both had no pants on. He said to the old lady, "Are you alright?" She said, "I was walking home and this guy had his pants down and he pulled my pants down".
Ms Efu's statement recorded that, "one of the mates we were meeting...came running up to us and told us to run down quickly and help Carl". Mr Daniel's middle name is Carl*. Ms Efu says she saw Carl "fighting with a male" who had no pants or underwear on, and she saw an old lady with her pants off:

“I immediately w[e]nt over to the old lady. She was sitting on the ground with her pants off crying. I don’t know if she had underwear on. She was trying to get up off the ground. She said, ‘All I was doing was walking home. The African guy pulled his pants down and pulled my pants down and made me lie on the floor.’”

All of these items of evidence are hearsay because none of Ms Paisa, Mr Pago or Ms Efu gave evidence. Because of the hearsay evidence, and because none of the accounts of these witnesses have been tested by cross‑examination, the evidence may be unreliable. In addition, Ms Paisa's statement was given two years after the incident. Since Mr Pago's statement recorded him asserting "pushing down the man" twice, he may, on one view, also be criminally concerned in the events giving rise to the proceedings. These matters raise the application of s 165 of the Evidence Act. Since I have been requested by Mr Murray under s 165(2), I notionally warn myself of these matters that they might make the evidence unreliable, and that there is a need for caution in accepting this evidence and deciding what weight it should be given.
Julia Palmer, another of the young people, did not give evidence. A transcript of a call she made to triple‑0 is in evidence. She described "the old lady" as "really old...like, in her 60s at least". "[S]he looks like in pain" and was "just in shock really bad”, “she was on the ground, pulling her pants up". She said of the man, "They're not letting him go". She said the man looked like “20’s, 20’s". He was "African, I think", a "little" guy. She said he was wearing "shorts and, like, a flanno shirt". No direction under s 165(2) was sought in respect of Ms Palmer.
Thomas Taalo gave evidence. He was 16 at the time of the incident. He was 5 foot 11. He was called to the incident by Ms Paisa. He saw his mate, "Vincent".
Mr Taalo said in evidence:

"And what I saw when I got there, was my mate, and the guy, arguing. Arguing, and, like physically and verbally, arguing. And he [the other guy] had no pants on. No undies. And yeah, that's all I remember."

The man was "African", that the incident happened under "like, a big bush", and that his mate "hit the African man". He saw the lady "sitting on the floor in tears". When the police arrived, Vincent "he wasn't there". He accepted that prior to the incident, he had been at a party, drinking Jim Beam. He said Ms Paisa alone of the group was not drinking, and as to whether Mr Daniel was also drinking, he answered, "Yeah, he was wasted". He said he saw no wallet or phone on the ground.

The next persons to arrive at the scene were the police officers. Laura Smyth, then a police constable, gave evidence. She attended Beames Avenue in response to a radio broadcast. She arrived within about three minutes with another officer. On arrival, she saw three Islanders, Ms Martin, and a Sudanese man in a flannelette shirt. Everyone seemed agitated. She pulled the Islanders away to the other side of the street. She took the names of the Islanders, Thomas Taalo, Julia Palmer and Carl Vincent, although she later accepted that she did not record the name "Carl Vincent" on the night. She thought they were all aged "between 18 to 20 roughly". She thought they were all about the same height as her, about 175 centimetres. She obtained a version of the event from Mr Taalo. She also thought that the Sudanese man was about 175 centimetres, and that he was of "skinny build". She did not recall anything of his hair or clothing. She said Ms Martin was "completely hysterical, crying, shaking". She went with Ms Martin to Nepean Hospital in the back of the ambulance for the purpose of having a sexual assault investigation kit administered, but Ms Martin refused the test. She took notes of Ms Martin’s account as I have earlier recounted.
Sergeant Ben Hadfield gave evidence. He said he attended Beames Avenue at about 11.23pm and observed a short Islander male restraining an African male, Mr Murray. Mr Murray was wearing a flannel style long sleeved jumper, but no pants or underwear, although there was a pair of black pants on the footpath. He observed Ms Martin to be crying uncontrollably and saying in effect, "He tried to rape me, why did he try to rape me". Sergeant Hadfield believed Ms Martin was heavily intoxicated because she had "dishevelled clothing, slurred speech. A smell of intoxication liquor, alcohol, coming from her breath. Just her general demeanour…Slouchy, sluggish behaviour". He said she was "heavily intoxicated, not mildly. Like, quite intoxicated".

Sergeant Hind-Spiteri arrived after the general duties police. He described Mr Murray as "in his early 30’s...a little bit shorter than me so around 165 or 170 centimetres, he was thin build, he appeared to have some sort of disability with one of his legs, he had short dark hair". When asked about clothing, the Sergeant said, "At the time he didn't have pants on, he had some sort of top on…he didn't have shoes on". He also gave evidence that Mr Murray "appeared to smell of intoxicating liquor". Sergeant Hind-Spiteri felt that "he may be under the influence of alcohol" because "he did have somewhat of a stutter and could be difficult to understand and there was a slur in his speech".
Sergeant Hind-Spiteri gave evidence that he had a conversation with Mr Murray who said:

"I was walking with the lady, walking and talking with the lady, they came over they punched me they knocked me over, they took my pants, my wallet and my phone".

Mr Murray confirmed to the Sergeant that he was saying that they robbed him of his pants and phone, and left those things on the ground. [17] He denied that he had tried to rape Ms Martin saying, "No they tried to rob me".

17. T313.

Sergeant Hind-Spiteri said Mr Murray was arrested and taken to the police station. He was not interviewed because he was thought to be under the influence of alcohol, and also because the Sergeant had no witnesses who saw the incident, nor a complainant who had undertaken a "sexual assault investigation kit" or SAIK. He said:

“We made that decision at that point in time because the victim, Sarah Martin refused to participate in a SAIK in the hospital on that night and refused to give a statement on that night. The three statements that we'd obtained were people that had come down later on so hadn't actually witnessed any of the alleged offence. So, at that stage, we didn't have any material evidence of the offence, therefore we released him without charge pending further investigation.” [18]
18. T316/18-24.

When released, Mr Murray did not depart immediately but remained saying, "I want my phone and wallet back, give me my phone and wallet back". Sergeant Hind-Spiteri said the police did not have his phone and wallet, and that the people at the scene had been searched and "none of them had your phone and wallet". Mr Murray said he had $450 in the wallet. The Sergeant eventually took a report of the robbery, and Mr Murray left. Mr Murray apparently later returned saying he had found his phone.
Whilst at the scene, Constable Taylor and Sergeant Hind-Spiteri took some photographs of objects on the ground, including photos of predominantly black boxer shorts, some bags, a cooked chicken, a shopping trolley, a black and grey cap, a shoe and some dark, mainly black or charcoal coloured pants.
Hannah Taylor, a Detective Senior Constable at the time, was working with Sergeant Hind-Spiteri. She responded at around 11pm and "saw a African male, sitting on the ground on the footpath by a fence and he had handcuffs on him". He was "naked from the waist down" with an abrasion on his head. She saw the "black satin boxer shorts" which "belong to [Murray]", she said because she overheard a conversation between Mr Murray and Sergeant Hind-Spiteri, where Mr Murray said the pants "on the floor" were his. She gave evidence of taking photographs of the black shoes and black cap next to the trolley on the footpath. She had a conversation with Ms Martin who said, referring to Mr Murray, "he tried to rape me". Mr Murray denied he sexually assaulted Ms Martin and said he was robbed. He agreed when asked if he was robbed of his pants and underwear, and accepted that the pants and underwear in the photographs were his. She also gave evidence of interviewing Darren Henderson and Samuel Bramble. She denied that Mr Bramble said anything indicating any fabrication of evidence.
Mr Murray did not give evidence. As Mr Murray has a right to silence, I can draw no adverse inference from him exercising that right. Moreover, in the present case, Mr Murray has been diagnosed with a mental illness and found unfit to be tried. That condition may preclude him from giving evidence.
Mr Murray is also a person of good character. He has not previously been convicted of any criminal offence. His good character is a matter I should take into account in his favour on the question of whether the Crown has proved that he has committed the offence of attempted sexual intercourse without consent, because a person of good character might be unlikely to have committed the offence. His good character is also relevant to support the credibility of his account to Sergeant Hind-Spiteri, including his denial to the police and the youths that he committed the offence, and his assertion that rather than having committed the offence, he was robbed. These are matters I take into account.

I. Complaint

In respect of complaint evidence, the Crown relied upon what Ms Martin said to a number of persons about the alleged assault by the accused upon her as evidence of such an assault occurred.
The Court must decide whether the complaint was made and what its contents were.
If the Court finds that the complaint was made substantially to the effect that the accused assaulted the complainant and had attempted to have sexual intercourse with her on 28 May 2015 in Beames Avenue, Mount Druitt, then it can use evidence of what was said in the complaint as some evidence that such an assault did occur independent of her evidence in the witness box. Because of the circumstances in which the complaint was made, the Court is entitled to use what was said in that complaint as evidence of the truth of what Ms Martin alleged. The Court is entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation was less likely to have been fabricated by Ms Martin and more likely to be accurate. The Court may take into account other matters, such as whether the complainant was in a distressed condition at the time of the making of the complaint.
It is a matter for the Court as to whether it draws that conclusion in this case, and so treats the complaint as evidence of the alleged assault by the accused in addition to the evidence that has been given during this special hearing. If the Court does use it as some evidence of this sexual assault, what weight is given to it is a matter for the Court.
Secondly, the Crown asserts that the evidence of complaint also has another purpose. The Crown contends the fact that Ms Martin raised the allegation at the time and in the manner she did would leave the Court to accept the evidence she gave in the witness box. In other words, it may make her evidence more believable than if she had not raised the allegation as she did.
It is for the Court to decide whether this complaint was made, but if the Court is satisfied that it was, then the question arises did the complainant act in the way expected if she had been assaulted as she said she was? If so, that may support the Crown case because the Court may find that there is a consistency between the complainant's conduct and the allegation that she makes.
On the other hand, if Ms Martin has not acted in the way the Court would have expected someone to act after being assaulted as she described, then that may indicate that the allegation is false.
The Court bears in mind when considering this issue that there may be good reasons why the complainant did not raise the allegation immediately following the alleged assault, although that does not seem to be applicable here. A failure not to do so immediately does not mean that the allegation must be false.
I have recorded various evidence of contemporaneous or near contemporaneous complaints made by Ms Martin to each of Mr Pago, Ms Efu, Sergeant Hadfield and Constable Taylor, and complaints in the succeeding days to Dr Kent, Mr Henderson and Mr Bramble. I have found that no complaint included an allegation of sexual intercourse, but rather alleged attempted sexual intercourse. The complaint of attempted sexual intercourse was consistently made. It may serve as evidence of an attempted sexual assault. But the complaint is different from the evidence Ms Martin gave in court.
A complaint of sexual assault could support the credibility of Ms Martin that a sexual assault occurred. Because the nature and content of the complaint of assault is different from, and arguably significantly less than, the evidence given orally in the witness box by Ms Martin of repeated non‑consensual but penile-vaginal sexual intercourse, and forced oral sex, in my view, her complaints do not support her evidence that those events she described in the witness box occurred.
It seems to me to be clear that Mr Murray was the African male described in the various accounts of the witnesses. No other black African male was mentioned in any evidence, or suggested in any question or submission.
Further, it was the African male who assaulted Ms Martin, according to her account, that was seen by Mr Daniel and Ms Paisa on top of her whilst both the African male and Ms Martin were naked from the waist down, that was assaulted by Mr Daniel, and that was found restrained by Mr Pago and Mr Taalo when the police arrived. This African male, who was observed with facial abrasions, identified himself to the police as Mr Murray. In addition, the accounts of Ms Martin, Mr Daniel, Ms Paisa, Mr Pago, Mr Taalo, Ms Efu and Officer Hind-Spiteri and the medical reports consistently gave evidence of Mr Murray's disabled leg, and Ms Paisa gave evidence of the flannelette shirt on Mr Murray and later recorded by Officer Taylor.
I am in no doubt that if a black African male committed offences against Ms Martin on Beames Avenue on the night of 28 May 2015 at around 11pm, then it was Mr Murray.
The evidence of the assault was variously described. Ms Martin gave evidence of three sexual assaults: two involving penile-vaginal sexual intercourse and one involving fellatio. Yet none of her complaints to various people at the scene and the days thereafter spoke of non‑consensual oral sex or sexual intercourse, but rather complained of attempted sexual intercourse.
Mr Daniel and Ms Paisa were first on the scene. They saw Mr Murray naked from the waist down, on top and facing Ms Martin, who was in a similar state of undress. Mr Murray was moving up and down on top of her. Other than Ms Martin’s subsequent crying, and perhaps the location of the incident being on a regularly frequented suburban street near a train station, there was nothing either witness identified that indicated non‑consensual intercourse. But there was no contest about the question of a lack of consent, it being expressly conceded by Mr Murray in the event that sexual acts occurred. Sexual conduct of some nature would be established if the accounts of Ms Paisa and Mr Daniel were accepted.
The accounts of Ms Paisa and Mr Daniel were criticised. I have given reasons why they might be unreliable. In addition, there was evidence of Mr Murray's assertions that he was robbed by Ms Martin, or Mr Daniel, or both. Mr Murray complained about his lost wallet, which he said contained $450. There was no evidence that his wallet was recovered, although Mr Daniel saw it. Ms Paisa, Sergeant Hind-Spiteri and Mr Pago recorded a complaint from the outset by Mr Murray that he was robbed of his money or wallet, and the Sergeant recorded the complaint that his wallet contained $450. Also, Officer Hadfield and Officer Taylor both mention Mr Murray saying he was robbed. Mr Daniel gave no such evidence, but said that Mr Murray offered him money. He also said he saw no money in Mr Murray’s wallet, which may indicate that he looked inside it.
If a robbery did occur, it may be a more persuasive explanation as to why Mr Daniel and Ms Paisa departed the scene before the police arrived than Mr Daniel's assertion that he was a missing person. But the existence of a robbery does not disprove, and is not inconsistent with, an earlier sexual assault. Yet being involved in a robbery may diminish the credit of Mr Daniel in giving evidence about the conduct of Mr Murray.
Mr Taalo, Ms Efu and Mr Pago, in their statements, and Sergeant Hind-Spiteri, Constable Taylor and Sergeant Hadfield (but not Laura Smyth) observed Mr Murray to have no pants on, and that his pants were on the side of the roadway. Whilst Mr Murray was literally caught with his pants down, the metaphor may be inappropriate. Ms Paisa and Mr Daniel both repeatedly said that Mr Murray pulled his pants up when he first stood up. Ms Paisa said the man's pants had been down “[p]robably up to his knees", and Ms Martin said his pants were "down", not taken off.
So if the three witnesses to the asserted sexual misconduct - Ms Martin, Mr Daniel and Ms Paisa - are correct, that Mr Murray had his pants down, and pulled them up when Mr Daniel approached him, then Mr Murray, being found naked later, is not evidence of any earlier sexual conduct because he was observed, after the asserted sexual conduct and before the other youths and police arrived, to have pulled his pants up. Once he has pulled his pants up, his subsequent nakedness is not at all probative of the alleged offence. It might be explained by someone, perhaps Mr Daniel or another of the group of youths, pulling his pants and shoes off, perhaps to rob him of his wallet. In any event, it follows that the evidence by the police and the other young people of Mr Murray's nakedness is not probative of guilt because he had earlier, after the alleged sexual assault, pulled his pants up. Of course Mr Daniel and Ms Paisa could be mistaken in repeatedly asserting that Mr Murray pulled his pants up. But that action might be expected if Mr Murray was confronted with his pants down, and it is stated repeatedly by both witnesses. It is not evidence I would readily dismiss. This means that apart from hearing Ms Martin’s complaints, the later police and youths' evidence is not helpful in establishing what occurred, a circumstance Sergeant Hind-Spiteri apparently recognised when he released Mr Murray from police custody on the night of the events.
That would leave Ms Martin, Mr Daniel and Ms Paisa alone as the relevant witnesses to the incident. The evidence of each included that Mr Murray was lying on top of Ms Martin when both were partly naked; and in that event, the act, if such it was, of Mr Murray trying to put his penis into her vagina was not merely preparatory to the offence, but it would be an attempt to commit it.
There are difficulties with the evidence of each of Ms Martin, Mr Daniel and Ms Paisa.
Ms Martin was, according to Sergeant Hadfield, heavily intoxicated, having accepted that that day she had shared a 4 litre cask of wine with her male friend, and drunken eight cans of bourbon and perhaps some beer. She is a small lady, less than five feet tall. Her description, apart from identifying a black man with a disabled leg, is invariably wrong. Mr Murray was not "six foot" tall, and a "big man", "big and heavy" as she said in evidence, but about five and a half feet tall, or 165 to 170 centimetres of thin build. He had short, but not curly, hair. Her description of the oral sex where he "pulls my head up to his penis” whilst he was “laying on top of me still" and "pinning me down" seems physically unlikely, although, in any event, as indicated earlier, I have not been satisfied that this form of assault occurred. She described him as wearing beige trousers, when they were black or charcoal, and a thick hooded winter jacket. There was no other persuasive evidence of this.
Ms Martin substantially misdescribed the incident involving two occasions of penile-vaginal sexual intercourse and one of penile-oral sex when all her complaints at the time and the days thereafter were of attempted sexual intercourse. She said it took five Samoan young men to "wrench" Mr Murray off her, whereas there were only ever three young men, and Mr Murray was off her when Mr Daniel attacked him at a time when he was the only young man present. Further, the evidence of what she told others in the day following the incident was inconsistent, and accepted by her in evidence to be partly wrong.
Some of these mistakes may be errors of detail, but it is apparent that Ms Martin’s recollection in the witness box is substantially different from what occurred in the days after the incident, on matters of real importance: the size of her attacker, the nature of the attacks and the way the event ended. Her misdescription of Mr Murray's size may be explained by her intoxicated condition, and her own size and frailty, but that merely serves to demonstrate that her evidence is not now a reliable guide to precisely what occurred.
Mr Daniel did not appear as an articulate man. His description of the incident left unexplained what caused him to assault Mr Murray, whether to save Ms Martin from sexual assault, or because he may understandably have been offended by seeing adult nakedness and sexual conduct beside a roadway, or for some other reason. That the event was unusual and serious might be expected to cause him to remember it, although the details would not be assisted by him not providing a statement for two years.
Mr Daniel’s description of what he saw of the wallet was curious, and suggested he may have troubled himself to examine it, if not more. He was not asked about, and gave no explanation of, how Mr Murray had his pants down when Mr Daniel's friends arrived, although Mr Murray had pulled them up earlier when he stood up on Mr Daniel's approach. And I found his reason for fleeing the scene before the police arrived less than convincing. So also was his account that Mr Murray offered to pay him money in the context when no‑one else heard this. I accept that this could have occurred when Ms Martin was the only other person present.
Mr Daniel gave evidence that he had not been drinking, but his friend, Mr Taalo, gave evidence that only Ms Paisa was sober, and that Mr Daniel had been drinking and that "he was wasted", which may have played a role in his violent response to seeing Mr Murray and Ms Martin by the roadway.
Ms Paisa did not give evidence. Her account was in a statement two years after the event. I must be cautious in accepting an untested account given two years after the event. She also was not asked and gave no explanation for, if it was the case, how if Mr Murray pulled his pants up when she arrived he was subsequently found entirely naked from his waist down with his pants, underwear and shoes near the footpath beside the roadway. She like others recounted Mr Murray's assertions of being robbed.
I must weigh the accounts of these three witnesses against Mr Murray’s, a man of good character, who is unable to give evidence of what occurred. Mr Murray's account at the time of the incident was consistently of being robbed. That explanation would explain his later nakedness if Mr Daniel's evidence and Ms Paisa's account of him pulling his pants up are accepted.
I accept that Ms Martin was walking home late at night after a day with her friend, and that she was seen on the roadway where something untoward has occurred. I see force in the likelihood that Ms Martin may have been the subject of an attempted sexual intercourse without her consent. But it is not enough that, despite the shortcomings of the evidence, that conclusion may seem likely.
The matters I have identified have left me with a doubt, which I consider reasonable, about whether Mr Murray committed the offence alleged, including whether attempted sexual intercourse has been proved, and whether Mr Murray knew, was reckless about, or had no reasonable grounds for believing that there was no consent to sexual acts, within the expanded meaning of knowledge in s 61HE(3) of the Crimes Act 1900.

J. Conclusion

It follows from my findings that Mr Murray is entitled to a verdict of not guilty in respect of the two offences charged (counts 1 and 2 on the indictment), and in respect of the alternative offence of attempted sexual intercourse without consent. In respect of each of the offences, I return a verdict of not guilty.

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Endnotes

Decision last updated: 27 March 2020

Medium Neutral Citation:	R v WM (No 2) [2019] NSWDC 861
Hearing dates:	30 April; 1, 2, 3, 6 May; 18, 19, 20, 21, 22, 25, 26 November 2019
Date of orders:	09 December 2019
Decision date:	09 December 2019
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	Warren Murray is found not guilty of counts 1 and 2 on the indictment, and not guilty in respect of the alternative offence of attempted sexual intercourse without consent.
Catchwords:	CRIMINAL PROCEDURE - special hearing - sexual intercourse without consent – mental illness – burden of proof – attempted sexual intercourse without consent
Legislation Cited:	Crimes Act 1900, s 61HA, s 61HE, s 578A Criminal Procedure Act 1986, s 162 Evidence Act 1995, s 165 Mental Health (Forensic Provisions) Act 1990, s 10, s 14, s 15, s 16, s 19, s 21, s 21A, s 22, s 23
Cases Cited:	Anderson v The Queen [2010] VSCA 108 R v Randall (1991) 53 A Crim R 380
Category:	Principal judgment
Parties:	Regina WM (Accused)
Representation:	Counsel: Mr T Abdulhak (Crown) Mr B Robinson (Accused) Solicitors: Office of Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2015/260022
Publication restriction:	S 578A of the Crimes Act 1900 (NSW) applies. A person shall not publish any matter which identifies the complainant in the proceedings or any matter which is likely to lead to the identification of the complainant. As such, pseudonyms have been used in the published judgment for all persons except for police officers and expert witnesses.