Rossi v R

[2024] NSWCCA 17

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Rossi v R [2024] NSWCCA 17

Hearing dates:

17 November 2023

Date of orders:

21 February 2024

Decision date:

21 February 2024

Before:

Mitchelmore JA at [1];
Cavanagh J at [142];
Weinstein J at [148]

Decision:

(1)   Time be extended to 16 June 2023 for the applicant to file the notice of appeal.

(2)   Grant leave to appeal.

(3)   Dismiss the appeal.

Catchwords:

CRIME — appeals — appeal against conviction — 16 counts of assault with an act of indecency — 1 count of common assault— three complainants — unreasonable verdict — verdict unsupported by evidence — evidence cross-admissible for tendency purpose — whether deficiencies and inconsistencies in evidence sufficient to give rise to reasonable doubt

Legislation Cited:

Crimes Act 1900 (NSW), ss 61L, 578A

Criminal Appeal Act 1912 (NSW), s 5

Criminal Procedure Act 1986 (NSW), s 166

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases Cited:

AJ v R [2022] NSWCCA 136

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 2

Hawi v R [2014] NSWCCA 83

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Z (a pseudonym) v R [2022] NSWCCA 8

Category:

Principal judgment

Parties:

Gilbert Rossi (Applicant)
The Crown (Respondent)

Representation:

Counsel:
S Buchen SC / S Pararajasingham (Applicant)
G Wright SC (Respondent)

Solicitors:
Murphy’s Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2017/32859

Publication restriction:

Pursuant to section 578A of the Crimes Act 1900, publication of any matter which could identify the victims is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

21 April 2021

Before:

Flannery DCJ

File Number(s):

2017/32859

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 21 April 2021, following a jury trial in the District Court of NSW, the applicant was convicted on 16 counts of assault with an act of indecency contrary to s 61L of the Crimes Act 1900 (NSW). The applicant was a professional photographer. The offences involved three complainants, CN, YL and VL, who separately attended photoshoots with the applicant during which he engaged in the offending conduct. Counts 1 and 2 related to CN and were alleged to have occurred at two photoshoots in January and February 2012. Counts 3 to 15 related to YL and were alleged to have occurred at three photoshoots in April 2012. Count 16 related to VL and was alleged to have occurred at a photoshoot in December 2016. On 29 October 2021, the trial judge also found the applicant guilty of a charge of common assault pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) involving VL and not guilty on another charge of common assault involving YL.

The applicant seeks leave to appeal against his convictions pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the ground that the verdicts are unreasonable and unsupported by the evidence. The principal evidence was the complainants’ evidence that was cross-admissible for a tendency purpose on the counts involving the other complainants. The Crown also relied on evidence from other witnesses that was said to be corroborative of aspects of their respective accounts.

In relation to CN, the applicant submitted that when CN’s evidence was considered in the context of other evidence, the Court would have reasonable doubt. The applicant relied on CN’s encouragement of a friend to attend a photoshoot with the applicant, CN’s untruthful evidence that she had never participated in lingerie shoots and CN’s cousin not giving evidence that CN had told her about the applicant’s conduct.

In relation to VL, the applicant submitted that there were a number of deficiencies in her evidence that would give rise to reasonable doubt, including her lack of recollection, inconsistencies between the sequence of photographs and her evidence and inconsistencies between her evidence and that of her boyfriend the time.

In relation to YL, the applicant raised issues that could be categorised into six broad areas: inconsistencies in the evidence of YL and her friend Olivia; inconsistencies or areas of implausibility arising from contemporaneous documents; the photographs from the photoshoots, many with a risqué element indicating a degree of agency on YL’s behalf; the implausibility of YL’s version of events, including that she returned to the studio on various occasions for further photoshoots; the timing of YL’s complaint to the police with the advice received from Fair Trading, that she could take her claim that she had not received her portfolio to a tribunal; and the manner in which YL gave her evidence.

The Court (Mitchelmore JA, Cavanagh J and Weinstein J agreeing), dismissing the appeal, held:

Per Mitchelmore JA (Cavanagh J and Weinstein J agreeing):

1. On counts 1 and 2, the matters on which the applicant relies to impugn CN’s credibility do not give rise to a reasonable doubt: [40]. CN’s encouragement of her friend to shoot with the applicant needs to be considered in the context of CN’s inexperience as a model and the applicant’s status as a well-known photographer: [41]. The absence of reference to the conduct with regards to CN’s cousin does not relevantly affect CN’s credibility: [42]. Considering CN stated that she remembered the lingerie as a swimsuit and her evidence that she had participated in a topless photoshoot, her denial that she withheld information from the jury was not so implausible as to adversely impact her credibility. The jury had a distinct advantage over this Court in seeing the manner in which CN reacted to being shown this evidence: [45].

2. On count 16 and the common assault conviction, the applicant’s submissions do not give rise to reasonable doubt: [63]. VL’s evidence that she could not remember the exact sequence of events but remembered that the incident occurred after she got out of the water due to its shocking nature was credible: [63]. In light of the immediacy of YL’s complaint to her then boyfriend and the consistency in their evidence, the difference in language between their evidence is not so different as to affect her credibility: [64].

3. On counts 3-15, the applicant’s submissions do not give rise to reasonable doubt. It does not follow from the difference in YL and Olivia’s evidence that the jury could not accept YL’s evidence as reliable and credible: [127]. The Court accepts that the contemporaneous documents could be explained by YL wanting to stay on the applicant’s good side. YL was consistent in her evidence that she was an aspiring model who believed the applicant would make her famous: [132]. That YL maintained her composure in the photographs from the photoshoots and her return to the studio for further photoshoots is also consistent with the same evidence and does not give rise to reasonable doubt: [135]-[136]. The submission that YL had a motive to lie as she had previously withdrawn an application for an apprehended violence order following receipt of photographs in 2012 is weakened by the fact that she has maintained her account of what occurred at a trial in 2021: [137]. Although there were occasions when YL’s conduct in court was not consistent with that expected from a witness, reading her evidence as a whole, YL’s manner does not give rise to a reasonable doubt: [139].

Per Cavanagh J (Mitchelmore JA and Weinstein J agreeing):

1. Having regard to the whole of the evidence, it was open to the jury to be satisfied beyond a reasonable doubt that the applicant was guilty of the charges of which he was convicted: [143]. The jury had the advantage of seeing and hearing the witness and it is their function to resolve any inconsistencies in the evidence and give weight to aspects of the evidence as they see fit. This court will only intervene where the jury ought to have had a doubt as to the guilt of the accused: [146].

   Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 2; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 applied.

JUDGMENT

1. MITCHELMORE JA: On 21 April 2021, the applicant was convicted, following a trial by jury before Judge Flannery SC, on 16 counts of assault with an act of indecency, contrary to s 61L of the Crimes Act 1900 (NSW). The applicant was a professional photographer. The offences involved three complainants who separately attended photoshoots with the applicant in the course of which he engaged in the offending conduct. As s 578A of the Crimes Act prohibits the publication of anything which could identify the complainants, without intending any disrespect, I will refer to them by different initials.

2. The counts on the indictment related to the three complainants were as follows:

1. counts 1 and 2 related to CN and were alleged to have occurred at two photoshoots in January and February 2012;

2. counts 3 to 15 related to YL and were alleged to have occurred at three photoshoots in April 2012; and

3. count 16 related to VL and was alleged to have occurred at a photoshoot in December 2016.

3. The trial judge also dealt with two charges of common assault, pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). VL was the alleged victim of one of the common assault charges, and YL was the alleged victim of the other charge. On 29 October 2021, the trial judge found the applicant guilty of the charge involving VL and not guilty on the charge involving YL.

4. On 29 October 2021, the trial judge sentenced the applicant to a community corrections order in respect of counts 1, 2 and 16 and the common assault charge involving VL, and sentenced him on the remaining counts to an aggregate sentence of imprisonment for three years to be served by way of an intensive corrections order, which expires on 28 October 2024.

5. The applicant seeks leave to appeal against his convictions pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The sole ground of appeal is that the verdicts of guilty are unreasonable and unsupported by the evidence.

6. As the application for leave to appeal was filed out of time, the applicant requires leave to file the application, pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The reasons for the late filing are explained in the affidavit of the applicant’s solicitor, Bryan Wrench, dated 9 June 2023. I am satisfied that an extension of time should be granted. I would also grant leave to appeal. However, I would dismiss the appeal.

The ground of appeal: the verdicts were unreasonable

7. The Crown case was that the applicant approached each of the complainants and suggested that she attend a professional photoshoot with him. Two of the complainants, YL and CN, attended more than one photoshoot, while VL participated in only one photoshoot. The applicant was alleged to have indecently assaulted each of the complainants during these photoshoots.

8. The principal evidence in support of the 16 counts was from the complainants, although the Crown also relied on the evidence from other witnesses that was said to be corroborative of aspects of their respective accounts. Each of the complainants gave evidence in the trial in relation to the counts that respectively involved her, and their evidence was cross-admissible for a tendency purpose on the counts involving the other complainants.

9. On the appeal, the applicant and the Crown both relied on the decision of Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 2 (“Dansie”) for its statement of the function of a court of criminal appeal in determining an appeal on the unreasonable verdict ground by reference to the earlier decision of M v The Queen (1994) 181 CLR 487; [1994] HCA 63 ("M v The Queen”). In Dansie, the Court said at [7]-[8]:

“… the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.

That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’.”

(Footnotes omitted.)

10. At [9] of Dansie, the Court extracted what it described as the “carefully crafted” passage in M v The Queen (at 494-495) regarding the role of the jury as “the body entrusted with the primary responsibility of determining guilt or innocence” (at 493):

“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

(Footnotes omitted.)

11. Senior Counsel for the applicant emphasised the words “only where” at the commencement of the above extract from M v The Queen, submitting that the advantage of the jury to which the Court there referred, of “seeing and hearing the evidence”, lay in resolving a credibility contest by reason of the manner in which the evidence was given. Acknowledgment of that advantage did not, he submitted, foreclose this Court considering the manner in which the evidence was given as disclosed in the record of the trial itself. He emphasised what the Court said in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 ("Pell”) at [39], in particular the second sentence:

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

(Footnotes omitted.)

12. Senior Counsel for the applicant submitted that the present case was one in which issues relating to the credibility and reliability of the complainants, particularly YL, turned on an assessment of matters that were discernible from the transcript and from various contemporaneous documents that the applicant tendered at the trial. As the Court said in Dansie at [12], by reference to SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [18], [23], consideration of what might be labelled “jury” questions does not lie beyond the scope of the assessment called for in the joint judgment of M v The Queen.

13. Senior Counsel for the Crown also relied on [39] of Pell, drawing attention to the first sentence. The reference to “a case such as the present” in the first sentence of [39] was to a case in which “the principal evidence against an accused person is given by a complainant”: AJ v R [2022] NSWCCA 136 at [103] (Beech-Jones CJ at CL). In that regard, in Z (a pseudonym) v R [2022] NSWCCA 8 at [29], Macfarlan JA (Brereton JA and Beech-Jones CJ at CL agreeing) stated that:

“… it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence.”

14. The approach to which Macfarlan JA referred reflects the pertinent observation that McCallum J made of juries in Hawi v R [2014] NSWCCA 83 at [480], albeit in dissent in the result in that case:

“The advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function.”

15. In discharging the function conferred on this Court, it is necessary to bear in mind that there is no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty: Pell at [53]. Given the nature of the arguments on which the applicant relied it is also useful to bear in mind the following observations of McHugh J about witness evidence in M v The Queen at 534, to which the Crown drew this Court’s attention:

“It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by [analysing] the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital — such as the account of a conversation in a fraud case or the description of a person where identity is the issue — discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.”

16. The primary focus of the applicant’s written submissions, and the sole focus of the oral submissions, were the counts on the indictment involving YL. She was the first of the complainants to give evidence in the trial and she was cross-examined at length. Before coming to the counts concerning YL, I will address the three counts on the indictment that involved the other two complainants, CN (counts 1 and 2) and YL (count 16).

Counts 1 and 2: CN

17. Counts 1 and 2 on the indictment involved CN. Count 1 was alleged to have occurred on 28 January 2012 during CN’s first photoshoot with the applicant, and involved the applicant placing his hands down the front of CN’s dress, touching her breasts and moving them around. Count 2 was alleged to have occurred on 28 February 2012 during the second photoshoot that CN attended, and involved the applicant putting his hands on CN’s cheeks and kissing her just to the left side of her lips.

Evidence of CN

18. CN gave evidence that on 24 January 2012 she was approached by the applicant on the street. The applicant said that he was a photographer and that he had been published in major magazines including Sports Illustrated and Vogue (Tcpt, 8 April 2021, p 609(22)). According to CN, the applicant asked her if she had considered modelling and suggested that she could do a practice photoshoot with him at his studio. The applicant provided CN with the details of his website, along with his contact details (Tcpt p 609(47-49)).

19. CN went home and looked at the photos on the applicant’s website; she then emailed the applicant and asked how the photoshoot would work. He replied that she should bring a change of casual clothing and he would take some casual photos (Tcpt, 8 April 2021, p 610(19-50)). CN arranged to attend the applicant’s studio in Balmain on 28 January 2012 at noon (Tcpt, p 611(16-50)). She gave evidence that her mother drove her to the applicant’s studio; CN’s sister was also in the car (Tcpt, p 612(7)). CN’s mother and sister waited in Balmain until CN was finished and then picked her up and drove her home (Tcpt, p 643(33-49)).

20. CN gave evidence that the applicant came outside and met her at the car, and she entered the studio on her own with the applicant (Tcpt, 8 April 2021, p 612(16-24)). At the start of the shoot, CN was wearing a red dress that had sleeves and a round neck (Tcpt, p 613(4)). She gave evidence that the applicant told her not to wear a bra and so she removed the bra she was wearing at the time (Tcpt, p 617(15-19)). Once the shoot started, the applicant told her what poses to do and adjusted the lighting; he would also touch her and move her arms around. At one point, the applicant grabbed her dress towards the bottom of the neckline and pulled it down, trying to show her breasts in the photograph (Tcpt, p 616(3), 617(25)). The Crown tendered two photographs of CN in the red dress, which CN said showed the extent to which the applicant had pulled down the neckline (Exhibit J).

21. CN’s evidence regarding count 1 was that when she was wearing the red dress, the applicant walked over to her and placed his hands down the front of the dress. She gave the following evidence in this regard (Tcpt, 8 April 2021, p 617(48)-618(3)):

“Q. … You just indicated with both your hands, with the fingers pointing downwards, with open palms; you’re saying is that how he put his hands down your dress?

A. Yes. He was adjusting my boobs, so he – well, he said he was adjusting my boobs for the photograph, but he put his hands down my top and was just fondling my boobs.”

22. In response to questions in cross-examination, CN said that she was seated when the incident occurred, about halfway through the shoot (Tcpt, 8 April 2021, p p 647(36), 650(7)). Her evidence in chief was that the duration of the incident was about 30 seconds (Tcpt, p 618(19)). She did not recall the applicant saying anything to her; and she did not recall how she responded (Tcpt, p 649(14-25)). CN said in her evidence in chief that the incident made her feel uncomfortable. She also said that she “wasn’t sure if that was normal practice in that industry” and that the applicant was the first photographer she had worked with (Tcpt, p 619(1)).

23. CN gave evidence that she next changed into a bikini that the applicant gave her to wear. When she came out wearing the bikini, the applicant pulled the string on the back of the bikini top and told her to change into another bikini. He then said he was helping her to tie the string; she said that she could do it herself but he insisted he do it so that he could hide the strings. The applicant then took photographs of CN in that outfit. At the end of the shoot, when CN was leaving, the applicant came outside and said hello to her mother and sister (Tcpt, 8 April 2021, p 619(12-49)).

24. CN gave evidence that after they arrived home, she told her sister about what she alleged the applicant had done during the shoot. (Tcpt, 8 April 2021, p 653(4-12)). CN accepted in cross-examination that she did not say anything in the car on the way home about the applicant touching her breasts. (Tcpt, p 651(30-39)). CN also gave evidence in chief that she emailed her cousin, who lives in Ireland, and that she spoke to her cousin about what happened when they met in person in Italy, in June or July 2012 (Tcpt, p 633(1-2)).

25. In cross-examination, CN was shown two emails that she had written to her cousin, dated 7 February 2012, which she accepted made no reference to the applicant touching her breasts notwithstanding that in the second of those emails she told her cousin about the photoshoot (Tcpt, 8 April 2021, p 656(15)-657(43)). CN was also shown an email that she wrote to her cousin on 12 March 2012, after the second photoshoot, and accepted that she did not say anything in that email (which she agreed was lengthy) about the conduct that was the subject of count 2 (Tcpt, p 669(9-39)). In re-examination, CN gave evidence that she did not include those things in the emails to her cousin because she did not feel comfortable typing that content (Tcpt, p 683(11-18)).

26. On 30 January 2012, the applicant sent CN an email attaching two photographs from the shoot (Exhibit J). On about 16 February 2012, CN sent an email to the applicant asking if she could see the rest of the photographs. The applicant responded that CN could see the photos when she came into the studio next, and asked her when she was free to shoot (Tcpt, 8 April 2021, p 620(16-29)). They arranged to meet on 28 February 2012.

27. On 28 February 2012, CN returned to the applicant’s studio (Tcpt, 8 April 2021, p 621(19)). In her evidence in chief, CN said that the applicant asked her multiple times to pose topless, which she refused. He then suggested two bikinis for her to wear, both of which she refused because she considered them too revealing. CN said that the applicant got angry, telling her that she needed to grow up and that she had been brought up culturally as an “ethnic girl” to hide her body, while girls who did nude photography felt free. The applicant told CN that she should try it and that the photos would not go anywhere (Tcpt, p 621(39)-622(9)).

28. CN put on a different bikini and the applicant started taking photos. At one point he pulled off the top of her bikini by pulling the strings; he also pulled the string on the side of her bikini bottoms, saying he was fixing the bows. CN moved away and said “[n]o, I’ll do it” and he said “I’m not touching you, you do it”, in a dismissive tone (Tcpt, 8 April 2021, p 622-623). CN gave evidence that she and the applicant moved into an adjoining room, where a computer was located, to look at the photos; and the applicant purported to take a phone call from an unknown person during which he criticised CN, saying that she was “being really annoying and [would not] try anything on”. CN said that she then posed for the applicant without a top on, stating that she felt pressured and “put down” (Tcpt, p 625(16)-626(7)).

29. CN’s evidence was that the applicant engaged in the conduct that was the subject of count 2 when she was posing for him without wearing any top. She gave evidence that the applicant walked over to her, put his hands on her cheeks and kissed her, to the left side of her lips. CN said that it was really quick, “[l]ike a peck” (Tcpt, 8 April 2021, p 626(29)-627(34)). The photoshoot continued and CN then left the studio. When she was waiting for a taxi outside the studio, the applicant came outside and said to her “[a]re you a good kisser? You look like a good kisser.” CN could not recall what she did or said in response (Tcpt, p 628(37-50)).

30. In cross-examination about the photoshoot on 28 February 2012, CN reiterated that she did not have the confidence to do shots wearing no top and gave evidence that her discomfort with doing such shots would have been readily apparent to the applicant and in any photos that were taken (Tcpt, 8 April 2021, p 665(1-16)). In relation to the incident the subject of count 2, CN estimated that the incident occurred after halfway through the shoot, which was lengthy, commencing in the afternoon and ending at 8pm (Tcpt, p 665(40-46)). She accepted that the conduct made her feel uncomfortable. There was then the following exchange between counsel for the applicant and CN (Tcpt, p 666(47)-667(28)):

“Q. …So why didn’t it occur to you at this second shoot, that you didn’t want to have anything to do with this?

A. I – Gilbert was the only photographer that I knew at the time. I knew he was a, a well-regarded photographer in the industry. I had seen his portfolio on his website, seen his photos were amazing --

[Counsel for the applicant interrupted with a further question at this point, and the trial judge invited CN to finish her answer.]

A. I felt flattered that someone of his calibre wanted to photoshoot with me for free because most photographers charge a lot of money for a portfolio, so I was stupid in that I passed that.”

31. CN gave evidence in chief that she contacted the applicant again in October or November 2012 and they arranged to do another photoshoot at the studio in Balmain (Tcpt, 8 April 2021, p 630(24-47)). In cross-examination, she was shown Facebook exchanges between her and the applicant in that period (Exhibit 37), and accepted that she was trying to re-establish contact with a view to the applicant photographing her again (Tcpt, p 670-673). CN’s recollection was that she attended a third photoshoot in November or December 2012. Although her evidence in chief was that she did not receive any photos from either the third shoot or the second shoot (Tcpt, p 632), she was shown an email from the applicant to her dated 11 December 2012 (Exhibit 38), which included a photograph of her in a black dress which she said she wore during the third shoot (Tcpt, p 672(44-46), 674(26-31)).

32. In cross-examination, CN gave evidence that she had never told the applicant that she was interested in doing lingerie shoots and she made no mention of photos being taken of her wearing lingerie because no such thing happened. CN also agreed that she was not interested in what counsel for the applicant described as “sexy shots” (Tcpt, 8 April 2021, p 675(7-22)). After giving this evidence, CN was shown a folder of photographs that were taken of her. CN’s verbal reaction to the photos, which included photos of her wearing lingerie and with her breasts exposed, was “[o]h my God”, followed by “I can’t look at these” (Tcpt, p 675(42-46)). After CN was taken through the photos, a brief adjournment was granted. On resumption, CN accepted that she had denied participating in lingerie shots and sexually provocative posing but denied that she had deliberately withheld that information from the jury. She also accepted that she harboured regret about participating in the shoots with the applicant but denied that the events the subject of count 1 and count 2 had not occurred (Tcpt, p 680-681).

33. In re-examination, CN was asked to explain why, if she felt uncomfortable after the first shoot, she went back for a second and third time. She gave the following response (Tcpt, 8 April 2021, p 682(24-26)):

“‘Cause when once I was stupid and too [sic] – I liked his photographs, he was a well-known photographer and I felt flattered, honestly, that I had – that he wanted to shoot with me.”

Evidence of CN’s cousin, and SN, CN’s sister

34. CN’s cousin, NS, gave evidence that in emails from CN, and in a conversation she had with CN when they met up in Milan in June 2012, CN had told her that she had attended a number of photoshoots with the applicant. Her evidence was that, in emails, CN had described the applicant as “very, quite touchy, feely”. CN also told her that the applicant had followed her into the change room and had tried to take her top off, and that he had tried to make her take her bottoms off in front of him, which made CN feel very uncomfortable (Tcpt, 8 April 2021, p 685-686). When asked to recall what CN had said about the applicant when they met up in Milan, NS’ evidence was that CN had said she felt very uncomfortable with him and that he was touching her inappropriately and making her take her clothes off. He also made insinuating remarks about her, saying that because of her origin she was not comfortable displaying her body and taking her clothes off (Tcpt, p 687). NS was not cross-examined.

35. CN’s sister, SN, confirmed that she had been in the car with CN and their mother on the day of the first photoshoot. She gave evidence of what occurred after they arrived home from that photoshoot (Tcpt, 8 April 2021, p 689(39-43)):

“When we got home my sister came into my room and she told me that during the photoshoot, [the applicant] was very touchy. He would do things like pull down her dress or put his hands down her top and grab her breasts. She said that she was unsure whether that was normal in the modelling industry, but it was [her] first time modelling, but she said she didn’t like how touchy he was.”

36. SN also gave evidence that CN had met with the applicant a number of times, although she could not recall how many times after that first photoshoot. She recalled CN telling her of one occasion when the applicant pressured her into wearing a swimsuit (Tcpt, 8 April 2021, p 690(10-22)):

“My sister said that she had told [the applicant] on numerous times that she didn’t want to wear a swimsuit. She said to me that was because she didn’t want any swimsuit photos of her online, yeah and she said on this occasion [the applicant] had faked a phone call with someone, saying something along the lines of ‘She’s being really annoying. She’s not doing what I’m telling her to do.’

My sister said she felt pressured into putting on the swimsuit and during the photoshoot, [the applicant] would undo the strings of the bikini bottom and the bikini top, saying that he was adjusting them and my sister said she was just really nervous and afraid of the photos to come out or be put online.”

37. In cross-examination, SN accepted that she was doing her best to recall details of timing and conversations she had with CN almost ten years before she gave evidence, and that the first time she had provided details and timings of her conversations with CN was in her statement to police dated 20 March 2020 (Tcpt, 8 April 2021, p 691(28-39)). SN was also asked whether she was aware that CN had participated in lingerie shoots, or shoots in which CN had revealed her breasts. SN was not aware of any photo shoots of that nature. When asked if she accepted that CN had not told her about shoots of that nature, SN posited that it may also be the case that she did not recall the conversations with CN. She said that she remembered what was in her police statement about the first photoshoot, “because it was her first experience with a photo shoot and I was interested I guess in her first step into the industry” (Tcpt, p 692-693).

The applicant’s evidence regarding CN

38. The applicant denied that he had engaged in the conduct that was the subject of counts 1 and 2 (Tcpt, 13 April 2021, p 741(7-15)). He maintained those denials in cross-examination (Tcpt, p 757(32-37), 768(20-37)). In relation to count 1, the applicant gave evidence that doing something like putting his hands down CN’s dress “would be counterproductive because you’re upsetting someone that you’re there to take pictures of” (Tcpt, p 757(42)). He gave similar evidence in response to the proposition that the second shoot progressed to a point where he insisted that CN take her top off and that he would take photos, saying (Tcpt, 14 April 2021, p 767(29-33)): “I’m trying to get the best possible pictures I can. Forcing people to do things they don’t want won’t work.”

The applicant’s submissions in relation to Counts 1 and 2

39. The applicant submitted that when CN’s evidence was considered in the context of the other evidence in the case, the Court would have a reasonable doubt as to counts 1 and 2. He relied on the following aspects of the evidence, or aspects in which the evidence was said to be lacking:

1. Evidence of a Facebook conversation dated 28 February 2012, in which, the applicant submitted, CN encouraged a close friend of hers to attend a photoshoot with the applicant. The applicant submitted that given CN’s evidence that she felt uncomfortable at the first shoot, by reason of what occurred, it was highly unlikely or implausible that she would encourage others to attend a photoshoot with the applicant; and yet this was what she had done.

2. CN’s evidence that she had never participated in lingerie shots was untruthful when one had regard to the photos of her that the applicant tendered as Exhibit 40. Her denial of the proposition that she had deliberately excluded these details from the jury was also not credible.

3. CN’s cousin, with whom CN said she was very close in 2012, did not give evidence that CN told her about the applicant’s conduct that constituted count 1 or count 2. Additionally, in the emails that CN sent her cousin in February (after the first shoot) and March 2012 (after the second shoot) did not refer to the applicant’s conduct that constituted count 1 or count 2.

40. The matters on which the applicant relied to impugn CN’s credibility do not give rise to a reasonable doubt about counts 1 and 2 on the indictment. The first matter did not wholly reflect the evidence in the trial. In cross-examination, CN agreed with the proposition that the incident she experienced at the first photoshoot was not the type of incident she would want to happen to anyone else (Tcpt, 8 April 2021, p 649(35-39)). She was later shown a message exchange that she had with the applicant (not with her friend) on Facebook on 28 February 2012, in which she sent the applicant a link to her friend’s Facebook profile (Exhibit 37). CN gave evidence that as at 2012, the woman was a close friend of hers; and CN had mentioned her friend to the applicant as someone with whom he should do a photoshoot. CN accepted that she thought that it would be a good idea for her friend and the applicant to do a shoot (Tcpt, p 662(1-14)).

41. CN’s evidence in this regard needs to be considered in the context of her evidence as to why, notwithstanding what she alleged had occurred during the first photoshoot, she returned for the second shoot (noting that the Facebook exchange occurred on the same day as the second photoshoot, but before it took place). As I have set out above, CN had never done any modelling; and the applicant was a well-known photographer. Despite the discomfort she said she experienced during the first shoot, CN was impressed by the photographs that the applicant took of her, and was flattered that he wanted to work with her. In addition to the passage from the re-examination that I have extracted above (at [33]), CN gave evidence that notwithstanding what happened during the first photoshoot, she decided to return having seen a sample of the photos she received from that shoot. As she said in the context of questions from the applicant’s Counsel about why she returned on the second occasion, “it’s not that black and white” (Tcpt, 8 April 2021, p 652(26)-653(2)). This evidence reflected her inexperience at the time, which was encapsulated in what she told her sister on the evening of the first photoshoot (see [36] above).

42. The fact that CN’s cousin did not give evidence that CN had told her about the specific incidents the subject of counts 1 and 2, does not relevantly impact on CN’s credibility. To the extent that CN was able to recall particular things that were said, her evidence supported CN’s account (see [34] above). The absence of reference to the specific conduct the subject of counts 1 and 2 in the emails that CN wrote to her cousin, in the periods following the first and second photoshoots, also did not relevantly affect CN’s credibility, noting that CN had given a plausible explanation in re-examination that she did not feel comfortable putting those matters in writing. Her sister, of course, gave evidence that CN told her about the conduct constituting count 1 on the evening of the first photoshoot, when it was alleged to have occurred.

40. As to the photographs in Exhibit 40, I do not accept the submission that those photographs provided a “strong basis” for concluding that CN gave untruthful evidence about the conduct the subject of counts 1 and 2. In the passage of evidence on which the applicant relies as grounding the submission of dishonesty, CN was asked whether she had, at any of the shoots, told him that she was interested in doing lingerie shoots or what counsel described as “some sexy shots”. It did not follow from the photographs that her evidence that she had indicated no such interest was false or dishonest, taking into account her evidence that the applicant told her what to wear and how to pose, and had belittled her reluctance to wear revealing items of clothing, including on the basis of her ethnicity (which her cousin had corroborated).

41. CN was also asked to confirm that she made no mention of such shots in her police statement, which she did. In relation only to the lingerie shots was it put to CN, after she confirmed that she did not mention such shots in her statement, that this was because she said that no such thing happened. CN’s confirmation of that proposition was not consistent with the photographs that she was subsequently shown. I have noted above what CN said upon being shown these photographs (at [32]). When it was put to her, in terms, that she had withheld from the jury information that she knew full well, about the types of shots that were in Exhibit 40, CN replied (Tcpt, 8 April 2021, p 681(2-7)):

“Yes, and I say that’s incorrect because I admitted I did a topless photoshoot. I had my arms out, I admitted my facial expressions and my poses were directed by [the applicant], and he had moved me into those poses as well. I wouldn’t deliberately withhold lingerie, that’s got more clothing than admitting I’m naked.”

45. Considered with CN’s other responses to questions on this topic, namely, that she remembered the lingerie as swimwear and that she had already given evidence that she posed without a top on, her denial that she had withheld information from the jury was not so implausible as to adversely impact the credibility of her evidence about the particular conduct that was the subject of counts 1 and 2. In evaluating CN’s evidence about these photographs, I consider that the jury had a distinct advantage over this Court in terms of seeing the manner in which CN reacted to being shown this evidence. Having regard to all of the evidence, I do not consider that this evidence had an adverse effect of the significance for which the applicant contended.

Count 16: VL

46. The date of the offence that was the subject of count 16 was 29 December 2016, over four years after the conduct that was the subject of the other counts on the indictment. The trial judge also found that the applicant had committed common assault in respect of VL, which was alleged to have occurred on the same day. The applicant did not advance any submissions that were specific to the common assault charge.

VL’s evidence

47. VL gave evidence that she completed her HSC in November 2016. By that time, she had been doing some freelance modelling for about three years. On 28 October 2016, VL received a message from the applicant via her Instagram profile, asking if she would be interested in collaborating on some photoshoots (Tcpt, 6 April 2021, p 523). VL and the applicant arranged to meet on 15 December 2012, which was rescheduled to 29 December 2016 (Tcpt, p 523-524).

48. VL gave evidence that on 29 December 2016, she met the applicant at a café in Darlinghurst (Tcpt, 6 April 2021, p 524(47)). Her evidence was that she and the applicant had a conversation in the café in the course of which the applicant made sexually explicit comments, including suggesting to VL that she would “give great head” because of her mouth. This made VL feel uncomfortable and she told him so (Tcpt, p 525-526). In cross-examination, VL denied the suggestion that the applicant had said no such thing (Tcpt, 7 April 2021, p 589(15-22)).

49. VL had driven her own car to Darlinghurst but the applicant insisted they travel in his car to the locations for the shoot. VL could not recall the precise locations but thought they drove to beaches like Maroubra and La Perouse (Tcpt, 6 April 2021, p 526(18-47)). VL gave evidence that whilst they were in the car, the applicant spoke a lot about her lips, saying that he wanted to kiss her and asking if he could kiss her (she said no). The applicant also grabbed her face really hard a couple of times, which she said hurt; she told him not to do it and tried to stop him from doing it (Tcpt, p 527). When it was put to VL in cross-examination that the applicant had not done this to her at any point, VL did not accept that proposition (Tcpt, 7 April 2021, p 592(35-36)). The applicant’s conduct in grabbing VL’s cheeks was the subject of the common assault charge which the trial judge found proved.

50. VL gave evidence that the first part of the photoshoot took place near a helipad somewhere in the south of Sydney, with bushland in the background. In cross-examination, VL agreed that the photoshoot likely commenced around 3pm and went for about an hour (Tcpt, 7 April 2021, p 531(33), 565(30-34)). VL recalled that there was a makeup artist present, whose name was Rosie Borg, and that she did VL’s makeup and assisted with styling (Tcpt, 6 April 2021, p 528(24), 529(7)). VL’s recollection was that she first wore a dress during this part of the shoot, and the applicant kept coming up and pulling her dress down at the front, to show more cleavage. VL then changed into a swimsuit and the applicant took more photos (Tcpt, p 529(21)-530(29)). In cross-examination, VL did not agree that Ms Borg was the only person to make physical contact with her during this part of the shoot (Tcpt, 7 April 2021, p 568(20-25)).

51. The applicant and VL then drove to a pizza place to get something to eat. Ms Borg had car trouble and left after her one hour shift (Tcpt, 6 April 2021, p 531(36)-532(5)). Pausing here, I note that Ms Borg gave evidence in the trial, confirming that she had attended a photoshoot with VL and the applicant in December 2016, having been booked by the applicant. She arrived at La Perouse around 2.30 or 3pm, and did VL’s hair and makeup before the shoot started. She was not cross-examined (Tcpt, 7 April 2021, p 597-598).

52. The applicant next drove VL to a different location to take more photographs, which she described as a “secluded beach with a ramp and there were some people fishing nearby”; the people were “quite far away” (she could not make out their faces) and they were not present for the whole time (Tcpt, 6 April 2021, p 532(18-20); 533(3-9)). . In cross-examination, VL accepted that this second part of the shoot started around 5 or 6pm (Tcpt, 7 April 2021, p 570(25-27)).

53. VL’s evidence was that she started this part of the shoot wearing a singlet with a bikini top underneath, and jeans. At the applicant’s request, she took off the singlet, keeping on the bikini top. The applicant then asked her to put the singlet back on but take off the bikini top. VL’s evidence was that she felt “pressured” to take off the bikini top; the applicant told her she needed to feel more comfortable with her body if she wanted to be “a proper model” (Tcpt, 6 April 2021, p 533(16)-534(13)). VL gave evidence that in the end, she removed her bikini top and the applicant was taking photos of her wearing the singlet and bikini bottoms. The applicant asked VL to pour water over herself so that the singlet was wet; and then to sit on some rocks that were in the water (Tcpt, p 534(19-24)). VL gave evidence that she found sitting on the rocks very uncomfortable and she told the applicant that it was hurting her. The applicant expressed frustration towards her because she was moving too much (Tcpt, p 534(19)-535(12)).

54. In relation to the conduct the subject of count 16, VL gave evidence that when they finished shooting she came out of the water and turned around to look at the scratches. As she did so, the applicant grabbed her bottom and squeezed it (Tcpt, 6 April 2021, p 535(14-17)). VL described the applicant as “groping” her bottom, by grabbing it and squeezing it (which she demonstrated to the jury with her hand), describing the pressure from his hand as “very firm”. VL recalled that the applicant said “thanks”, to which she replied “don’t” or “don’t do that” (Tcpt, p 536(1-26)).

55. In cross-examination, VL was tested in some detail about her recollection of when the incident occurred by reference to when she got out of the water. When asked if it was possible that she was “not quite sure when it happened”, VL replied: “I know it definitely happened after the shoot had finished; and I know it definitely happened” (Tcpt, 7 April 2021, p 572(34)-573(50)). She again described what occurred and estimated the duration of the applicant squeezing her bottom as “a matter of seconds” (Tcpt, p 574(1-21)).

56. In cross-examination, VL was also taken through photographs from the second part of the shoot, which VL had not seen before giving evidence (Tcpt, 7 April 2021, p 576(35-37)). It was put to VL that the sequencing of the photos, which included further photographs of VL after she emerged from the water, did not support her evidence that the incident the subject of count 16 occurred at the end of the photoshoot (Tcpt, p 581(35)-582(6)). VL gave the following evidence in that regard (Tcpt, p 582(12-20)):

“Q. Earlier today you said that after you got out of the water [the applicant] grabbed you, remember you said that?

A. I don’t remember.

Q. Can I suggest that’s what your evidence was earlier today and can I suggest what this photo shows is that after you got out of the water the shoot continued and this time you were leaning against a rock, do you see that?

A. That could, that could have been what happened but I’m not sure when he grabbed my bum. It was, I know that it was around this period of time. Like I said earlier it happened a long time ago so I can’t remember the specific time whether it was right after I got out of the water or, all I know is that towards the end of the shoot that he grabbed my bum, but yeah my memory’s not great because it happened a long time ago.”

57. VL denied the suggestion that if there was any contact between the applicant and her bottom it was in the nature of the applicant ushering her along. When asked if she was “sure it wasn’t just a single touch that occurred”, she replied “[n]o it was definitely a grope, because that’s what really shocked me”. VL also denied that the touching was in the nature of a slap (Tcpt, 7 April 2021, p 583(5-26)).

58. VL and the applicant returned to the cafe in Darlinghurst and had a look at images from the photoshoot on his camera. VL then left the cafe. She did not have any further contact with the applicant (Tcpt, 6 April 2021, p 536(33)-537(11)). When she got home from the photoshoot she messaged her then boyfriend (Tcpt, p 537(39-43)). In cross-examination, VL accepted that on the basis of her boyfriend’s statement to police about the incident (part of which counsel for the applicant read out to her) what he recalled VL telling him about the incident was different to the account she gave in her evidence (Tcpt, 7 April 2021, p 584(5-37)).

Evidence of VL’s then boyfriend

59. VL’s former boyfriend gave evidence that he was aware that VL was attending a photoshoot on 29 December 2016, and later that day he sent her a message on Facebook asking how it went. VL replied that it was “weird”, and when he asked her to explain, she replied “[i]t was uncomfortable but I don’t want to talk about it on text” (Tcpt, 7 April 2021, p 600(40)-601(10)). VL’s boyfriend gave evidence that he and VL had a phone call shortly after that exchange of messages. When asked to recall the conversation in that call, he said (Tcpt, p 601(23-42)):

“So I asked her again, ‘What about the photoshoot made you uncomfortable?’ She said, ‘The photographer had touched me on the bum.” I then asked, ‘And what else happened?’ She then said that she’d been picked up from a carpark that she left her car – well, sorry, she had said that, ‘I was picked up by the photographer. I had then made’ – in Victoria’s words again – ‘I had made it clear to the photographer that I was uncomfortable leaving my car as I might get a ticket.’ The photographer then said to her that if she got a ticket, he would kill her. She said, ‘I passed this off as a joke.’ I then asked her – well, we kept talking about it.

She then told me that the photographer drove her to a beach and she had said, she wasn’t sure what beach. She then said again at the photoshoot, ‘I feel uncomfortable about my car being left at the carpark.’ At which point the photographer had said, ‘Don’t worry about the car. If you get a ticket, my assistant will fuck you on the bonnet.’ She then told me later in that same conversation that she had said to the photographer, ‘I feel uncomfortable after being in the water because I have sand in my swimwear.’ At which point the photographer slapped her on the bum.”

60. His account of this conversation was not the subject of intensive cross-examination. The focus of cross-examination, which was brief, was whether VL or her boyfriend had initiated the complaint to police (Tcpt, 7 April 2021, p 602(24)-603(46)).

The applicant’s evidence on Count 16

61. In his evidence in chief, the applicant’s account of the sequence of events on 29 December 2016 was similar to VL’s, in terms of meeting at the café in Darlinghurst before travelling in his car to La Perouse for the first part of the shoot before getting some pizza and then driving to the second part of the shoot, at the Malabar boat ramp. The applicant recalled taking photographs of VL with his camera on a tripod. He recalled moving her into the water and taking some photos of her from some distance away. He also recalled taking some photos of her when she was out of the water and leaning on a rock (Tcpt, 13 April 2021, p 736-737). The applicant denied groping VL’s bottom on the day, or grabbing her cheeks at any stage (Tcpt, p 738). In cross-examination, the applicant maintained his denial that he had grabbed VL’s cheeks when they were in the car and asking if he could have a kiss (Tcpt, p 801(15-17)). He also denied that he had groped or slapped VL’s bottom when she came out of the water after having been sitting on a rock (Tcpt, p 804(19)-805(10)).

The applicant’s submissions on Count 16

62. The applicant submitted that, closely considered, there were a number of deficiencies in VL’s evidence that would give rise to a reasonable doubt in relation to count 16. First, on VL’s own account she did not have a cogent memory of the circumstances surrounding the alleged offence, referring to her lack of recollection of the evidence she had given the previous day and the inconsistency between the sequence of photographs and her evidence that the applicant had grabbed her after she got out of the water at the end of the shoot. The applicant also relied on inconsistencies between VL’s evidence and the terms of the complaint that she made to her boyfriend, on his evidence. The applicant submitted that the difference was not insignificant because on the applicant’s evidence, if he made any contact with VL’s bottom it occurred in the context of ushering VL out of the water, which lacked the necessary element of indecency, and the account that VL’s boyfriend gave supported a touching of that kind.

63. The applicant’s submissions do not give rise to a reasonable doubt about the applicant’s guilt in relation to count 16. I have extracted at [56] above the evidence that VL gave when she was tested in cross-examination about the sequence of events. Her evidence that she could not remember the precise sequence of events due to the passage of time but remembered that the incident happened after she got out of the water, and that she remembered what the applicant had done because it was shocking to her, was credible. Considering her evidence as a whole, VL’s failure to recall the precise timing of the incident did not detract from the reliability or credibility of her account.

64. In emphasising the difference in language between VL’s account of what occurred and her boyfriend’s evidence about what VL told him shortly after the shoot, the applicant marginalised what was common to their evidence, namely, that the applicant’s conduct was deliberate and that it was of a nature that had made her feel uncomfortable. The consistency of their evidence in that regard, and the immediacy of VL’s complaint, was significant in terms of supporting VL’s account. Seen in that light, the difference in the language VL used in her account to the jury and that she was reported to have used in her account to her boyfriend was not so different as to relevantly affect the credibility of her evidence. As the Crown submitted, the overall context of her boyfriend’s evidence supported the truth of VL’s account.

Counts 3 to 15 – YL

The counts involving YL

65. Counts 3 to 15 on the indictment concerned YL, who attended the applicant’s studio on three occasions in April 2012. The applicant was alleged to have engaged in the conduct charged in counts 3 to 8 during the first photoshoot. The conduct charged in counts 11 to 14 was alleged to have occurred during the second photoshoot, and the conduct charged in count 15 was alleged to have occurred during the third photoshoot.

The evidence of YL

YL’s first photoshoot with the applicant

66. YL gave evidence that in 2012 she had just finished high school and was working in retail, “but the main thing I really wanted to do was become a model” (Tcpt, 30 March 2021, p 255(12-14)). At the end of March 2012, YL set up a profile on a website, “modelmayhem.com” (Tcpt, p 255(20-41)). On 5 April 2012, YL received a message on the website from the applicant, asking if she wanted some photographs taken for fashion magazine submissions (Tcpt, p 255(43-49)). YL replied that she was interested, and they made phone contact, with YL agreeing to meet the applicant at his studio that afternoon. In cross-examination, YL was taken to the second of the statements she made to the police, in which she corrected the date of the photoshoot to 6 April 2012 (Tcpt, p 315(42)).

67. YL’s evidence was that she arrived at the applicant’s studio at around 4pm. In cross-examination, YL said that her intention was to get a range of pictures and have them emailed to her or given to her that day, and that it would be a one-day experience (Tcpt, 30 March 2021, p 316(1-30)). Her evidence was that she was interested in modest shots, “like jeans, T-shirt, singlet, shorts” (Tcpt, p 316(38-42)).

68. YL’s best friend at that time, to whom I will refer by her first name, Olivia, went with her to the studio. In her evidence in chief, YL said that Olivia stayed for approximately two hours and then left because she had to go home (Tcpt, 30 March 2021, p 256(15-35)). In cross-examination, YL said that she had lost touch with Olivia over the years, although they were not on bad terms and did not have a falling out (Tcpt, p 310(25-31)); Tcpt, 31 March 2021, p 341-342). She gave evidence that she had not had any contact with Olivia since a birthday message in February 2021.

69. YL gave evidence that after she and Olivia arrived at the studio, they had a lengthy conversation with the applicant. In cross-examination, YL estimated they spoke for some three hours (Tcpt, 30 March 2021, p 317(34-50)). On YL’s evidence, during the course of the conversation she asked a question that the applicant considered to be silly “and he basically wrapped his hands around my neck and it looked like he was choking me and I really couldn’t breathe and it was quite painful” (Tcpt, p 257(1-6)). This conduct, which YL estimated lasted for about five seconds, was the subject of the common assault charge that the trial judge found was not proven.

66. In cross-examination on this incident, YL’s evidence was Olivia was definitely present for this incident, and she recalled Olivia saying words to the effect “[o]h my gosh” and looking at YL with a shocked expression (Tcpt, 30 March 2021, p 319(26-50)). YL accepted that she had not included anything in her police statement about Olivia having said anything but she denied that she had just made up the detail (Tcpt, p 320(9-18)). When it was put to her that Olivia had said nothing in her statement about a strangulation incident, YL replied, “We can call her right now” (Tcpt, p 320(42-44)). She denied the suggestion that the incident did not occur (Tcpt, 31 March 2021, p 327(5-7)). YL was also asked why she and Olivia did not just leave at that point, to which she replied (Tcpt, 30 March 2021, p 320(31-36)):

“Because I wanted my shoots [sic] so bad, I wanted to be a model so bad and I was a naïve girl, that I just took it as a joke. It was serious but he laughed it off, so I don’t have a long history of knowing what his character is like. So it takes several hours or days to actually observe the, observe how, what’s the word, consistent someone’s character is. And [the applicant]…laughed it off like, like it was just a joke.”

71. YL agreed that before the photoshoot started she and the applicant had a conversation about what she would be wearing. Her evidence was that the applicant asked her to put on a very sheer piece of lingerie (Tcpt, 30 March 2021, p 257(43-46)). When she hesitated, the applicant belittled her and made her feel like she had to do it, saying “[a]ll the models do it” (Tcpt, p 257(45)-258(1)). In cross-examination, she gave evidence as to why she put on the sheer top, saying: “I was 18 at the time and he was telling me this is what I to do to get on the cover, to become a big model” (Tcpt, 31 March 2021, p 330(26-30)). Counsel for the applicant pointed out that in the photo of YL in this top that the Crown had tendered, her nipples had been obscured. YL replied that this did not change that he had the originals and he could do whatever he wanted with the picture and post it online, this being a concern that she had at the time (Tcpt, p 331(35-47)).

72. YL said that she put the sheer top on in the small change room and came out covering her breasts. The applicant placed her hands to her side to reveal her breasts; what happened next was the subject of count 3 (Tcpt, 30 March 2021, p 258(39-46)):

“Q. You said that you came out covering your boobs and he placed his [sic] hands to the side to reveal your breasts?

A. Correct.

Q. When he did that did he say anything to you?

A. Yes, he told me he would teach me a very valuable lesson, and that if I’m ever in front of clients to make sure my nipples are always in place, and he went ahead and looked inside my outfit and pinched my nipples.”

73. YL recalled saying to the applicant, “[s]top, what are you doing?” and he went on to say, “[t]hey look really nice”. YL indicated to the court how the applicant put his hands down the sheer one-piece, pulling the top she was wearing away from her neck and chest. YL said that the applicant pinched her nipples between his index finger and his thumb, squeezing and twisting them really hard; she described what occurred as “actually painful”. Although YL’s initial evidence was that the applicant pinched both of her nipples, shortly thereafter she clarified that the applicant pinched her right nipple (Tcpt, 30 March 2021, p 260(8-9)). In cross-examination, she maintained that he pinched one nipple. Her evidence was that the applicant was laughing; YL recalled that he was making a joke of the situation and insinuating that all models went through this (Tcpt, p 259).

74. YL was asked in cross-examination if Olivia was still present when this incident occurred; YL initially said that she was not (Tcpt, 31 March 2021, p 335(31-39)). YL was then taken to her first police statement in which she stated that her friend left after this incident. YL’s evidence was that the statement would be the most correct because she had made it nine years earlier. When it was then put to her that Olivia had not mentioned the incident the subject of count 3 in the statement that she (Olivia) had made to police, YL said that she could not vouch for Olivia telling every detail and that YL could only tell her part of the story (Tcpt, p 337(4)-338(10)). YL was asked why, on the assumption that Olivia was present for the alleged strangulation incident and the nipple-squeezing incident, she simply did not leave when Olivia left, YL replied that she was “so determined to get on the cover of Sports Illustrated and to become a model” that she continued (Tcpt, p 341(8-15)).

75. Returning to her evidence in chief, YL was next asked whether, after the applicant pinched her nipple, he took photos of her in that clothing. She replied (Tcpt, 30 March 2021, p 260(36)):

“Yes. He actually took a photo of my driver’s licence, like me holding up the driver’s licence and the piece of paper he wanted me to sign. I felt really uncomfortable because my top fell down during that and he, it was being exposed in the photo and he said, “Just leave it. I can photoshop it out, and he came up to me and said, “Look at those tits” and he once again put his hand inside my outfit and pinched them.”

76. YL said initially that this conduct occurred when she was wearing the same sheer top. She was then asked what position she was in when the applicant was taking photos of her in the sheer top, with YL answering that she was sitting on a stool and that the applicant would tell her what to do and correct her position. YL then corrected her evidence, stating (Tcpt, 30 March 2021, p 261(14)):

“Sorry, I actually remember the picture that was taken with the driver’s licence was in an orange top. So, I got changed into something else and then I changed back into the sheer top. Sorry.”

77. Shortly thereafter, YL gave the following evidence, which corresponds to count 4 on the indictment (Tcpt, 30 March 2021, p 261(31-36)):

“Q. So, after [the applicant] took some photos of you in the sheer top you got changed into another outfit?

A. Yes. It was another sheer outfit and I kept trying to cover my boobs, just like the other one, and he kept saying, ‘Don’t make me come over there and, and, and move them for you’. He kept grabbing my boob, touching my nipple, the same thing.”

78. YL was then asked questions to clarify the sequencing of the outfits that she wore at the start of the shoot (Tcpt, 30 March 2021, p 261(38)-262(1)):

“Q. I just want to go back. You said that you were in a sheer top?

A. Yeah.

Q. Then you said that you were in an orange top?

A. That orange top was to take pictures of the driver’s licence and the piece of paper that he gave me.

Q. The purpose of you getting changed into the orange top, you say, is for [the applicant] to take photos of you with your driver’s licence, is that right?

A. Correct.

Q. And another piece of paper which had some information on it, is that correct?

A. Yep, correct.”

79. YL then gave evidence about conduct that constituted count 5 on the indictment and occurred, on her evidence, when she was still wearing the orange top (Tcpt, 30 March 2021, p 262(3-32)):

“Q. When you were in that orange top, when you were wearing that orange top and [the applicant] was taking photos of you what position were you in?

A. I was bent over on a stool. I was sitting on the stool, but leaning forward.

Q. Did you have anything else on under the orange top?

A. No, I didn’t.

Q. Did you have anything else on under the sheer top that you were wearing?

A. No, I did not.

Q. So, when you were wearing the orange top and you were leaning forward – well, first of all, how did you come about to lean forward?

A. He told me to lean forward. He told me what poses to do.

Q. What else did he say to you when you were leaning forward, wearing the orange top?

A: ‘Don’t make me come over there and move your boobs’.

Q: Did you say anything in response to that?

A. When, well, when he came over and actually touched my boobs I said, ‘Stop, what are you doing?’

Q. How did he touch your boobs when you were wearing the orange top?

A. He would put his hand inside my shirt and twist my nipple.

Q. Was that the same way that he did in the sheer top or differently?

A. The same way.

Q. Which nipple did he twist?

A. The right one.”

80. YL said that she changed back into the same sheer top, correcting what she had earlier said that it was different to the sheer top she had worn previously. YL then gave this evidence (Tcpt, 30 March 2021, p 263(38)-264(22)):

“Q. When you came out of the change room in that sheer top was anything said by you or [the applicant] about the top?

A. About the top? Well, I tried covering it, I said this before. I tried covering it with my hands and he threatened me, saying –

Q. Can I just stop you there?

A. Yeah.

Q. Just show the Court how you were trying to cover yourself.

A. It was like this.

Q. All right. So, you’ve first got your hands crossed and your open palms covering each breast?

A. Correct.

Q. And then you’ve moved to your just open palms covering each respective side of your breast, is that correct?

A. Yes, alternate, alternating.

Q. Okay, and then, I’m sorry, you were going to say that [the applicant] said something?

A. He says, ‘Don’t make me come over there and move them for you’ and then he came over and actually pushed my arms down and he, like I mentioned before, grabbed my nipples again and it was painful, and I said, ‘Stop. Don’t touch me.’”

(Emphasis added.)

81. This conduct corresponds to Count 6 on the indictment, which involved the applicant pushing down YL’s arms and grabbing her nipples. However, in view of YL’s evidence about having said this “before”, the applicant raised on the appeal whether the conduct that was the subject of count 4 and count 6 was, in fact, the same conduct. In making this submission, the applicant emphasised that in the context of her evidence that was relied on for count 6, YL referred, twice, to what she had said “before”. Her reference to “before” is capable of being read one of two ways. Either she was repeating evidence she had already given about the precise conduct constituting this count, or she was referring to evidence she had already about the type of conduct that was also, and separately, the subject of this count. Having carefully reviewed the evidence, by the time of the conduct the subject of count 6, YL had already been subject to what, on her evidence, was similar conduct. So understood, I consider that it was the second use of “before” that YL intended to convey in her evidence, and that she was giving evidence of two separate incidents.

82. YL was shown a photo of herself (Exhibit A) and confirmed that she was wearing the sheer top (Tcpt, 30 March 2021, p 265(34-46)). YL was also shown three further photos of herself (Exhibit B), confirming that in the first of those photos she was wearing the orange top, while the second and third photos showed her holding her driver’s licence and the information form respectively (in the orange top) (Tcpt, p 266(20)-267(27)). In cross-examination, YL was again asked about the sequence of what she wore and gave the following evidence (Tcpt, 31 March 2021, p 351(31-33)):

“I can’t tell you 100%. It’s hazy which outfit was first and what came off that. I do remember it was – I had the sheer top, I had the orange top and then I had one more outfit.”

83. Also in cross-examination, YL was shown the photo of her holding up the form that she had filled in (Exhibit B) and the following exchange occurred (Tcpt, 31 March 2021, p 351(45)-352(3)):

“Q. Isn’t it likely that that’s something that would have been done on your arrival at the studio?

A. Yes. That would make sense. That would make – that would make complete sense.

Q. So it is possible that the sequence of events, or the order of outfits at least, the first two or three, was orange top first and then the sheer top? Is that a possible sequence?

A. I don’t know. It could be possible, correct.”

84. Returning to her evidence in chief, YL gave evidence that the applicant next showed her a blue one-piece swimsuit that he wanted her to wear (Tcpt, 30 March 2021, p 267(46)). YL did not want to wear the swimsuit because it would expose her breasts and her bottom, but she put it on because the applicant was very forceful and condescending, saying to her, “[a]ll the models do it. If you want to be in Sports Illustrated you have to wear this and take pictures in it.” (Tcpt, p 268(2-12)) YL confirmed in cross-examination that she felt uncomfortable wearing the swimsuit (Tcpt, p 352(26-31)).

85. The act that was the subject of count 7 on the indictment occurred when YL was wearing the blue swimsuit. YL said that the applicant asked her to walk towards him, and then asked her to turn around “and show him my butt”. YL said that while her back was turned to him, the applicant “actually grabbed my butt cheeks with both hands from behind”. YL gave evidence that she said to him, “[o]h my god, let me go” (Tcpt, 30 March 2021, p 268(29-50)). YL gave the following evidence as to what happened next (Tcpt, p 269(26-35)):

“Q. Did he do or say anything after that?

A. Yes, well, I turned around so that he would make his hands let go of me and I covered my butt basically so I wouldn’t be, so they wouldn’t be revealed to him, I was hiding them and I turned around so that my face was facing him. And then he grabbed both of my hands and pulled them away, and, again, he grabbed my butt cheeks and made me look at him in the mirror while he did it.

Q. After you covered your butt cheeks, what’s the next thing that happened?

A. He then grabbed them again and he pushed the cheeks apart and he asked me to bend over in front of the mirror.”

86. YL gave evidence that the applicant took photos of her in the swimsuit by the water, which was no more than a 15 minute drive from his studio. By the time they arrived at this location it was around sunset (Tcpt, 30 March 2021, p 270(44-49)). Subsequently, but whilst still in chief, YL gave evidence that the photos down at the water occurred during the second photoshoot, and that she wore the same swimsuit (Tcpt, p 281(45)-282(10)).

87. As to the conduct constituting count 8, YL gave evidence that the applicant grabbed her vagina from the front, on top of the blue swimsuit and made a grunting sound. YL indicated that the applicant put his thumb at the front of the bottom of her swimsuit, putting the fingers of his same hand “underneath” (as she described it). According to YL, at the time the applicant did this he said to her, “You’re a hot fuck”. YL said that she moved backwards so that he would release her (Tcpt, 30 March 2021, p 272(29)-273(36)).

88. On YL’s evidence, the conduct that was the subject of count 9 occurred shortly after the conduct the subject of count 8. YL said that she was shocked at the applicant’s conduct and told him that she had to get home and that she was going to be late, but the applicant “continued to be inappropriate and he grabbed the top of [the] swimsuit that [she] was wearing”. Although she told him to stop, YL said that the applicant did not listen, and he put his hand into her swimsuit, on her breast. She continued: (Tcpt, 30 March 2021, p 274(1-31)):

“I tried to put my top back up, but he pulled out my boob out of the swimsuit. I kept trying to pull back the top, and then he said, ‘Stop pulling it up or I’m going to bite it.’ So, he then actually put down his – he put his head down on my breasts and his, he put his mouth on my nipple.”

89. YL’s evidence regarding count 10 was that she told the applicant that she had to leave and she went and changed into her own clothes; after she had changed, the applicant put his hand inside her top and squeezed her breast again (Tcpt, 30 March 2021, p 275(44-49)). The applicant drove YL to Central Station so that she could catch a bus home (Tcpt, p 276(20)). In cross-examination, YL denied that she got in the car with the applicant because the first shoot had been a wholly productive and positive experience (Tcpt, 31 March 2021, p 369(16-19)). Her evidence was that notwithstanding what she had endured, she was going to continue to work with the applicant to obtain a portfolio, and that was not all done on the first day (Tcpt, p 367(38-47)). In response to the proposition that she was happy to see the applicant again, YL gave this evidence (Tcpt, p 367(49)-368(3)):

“I was not happy, no. I had a goal in mind. I wanted to get on Sports Illustrated. I wanted to be a big model. That was the goal I had in mind, and he promised me – he said ‘I can get you on the cover’. So that was what’s in my mind.”

90. In cross-examination, YL was shown a series of photographs that were taken during the first photoshoot (Exhibit 2). It was suggested to YL that the photographs revealed “that this was a shoot without any incident”, which she denied, stating that it was a model’s job to act and that the photos did not reveal what went on behind the scenes. YL also gave evidence that she was a “natural” at modelling and working the camera and that it was because she was a great model that the photos did not show any trace of anxiety or concern, or anything untoward. YL disagreed that if anything negative had happened it would have shown on her face. She also disagreed that she was choosing the outfits and insisting on certain poses (Tcpt, 31 March 2021, p 371(30)-373(23)).

91. YL gave evidence in cross-examination that during the first photoshoot, the applicant had told her that he could put a portfolio together and that it would cost $1,800 (Tcpt, 31 March 2021, p 365(48-49)). YL gave evidence that on 11 April 2012, she paid the applicant $1,000 by bank transfer (Tcpt, p 378(18)).

YL’s second photoshoot with the applicant

92. YL gave evidence in chief that on 14 April 2012 she returned to the applicant’s studio (Tcpt, 30 March 2021, p 278). In cross-examination, YL accepted that it “[c]ould be probable” that the photoshoot was on 16 April 2012 (Tcpt, 1 April 2021, p 439(30-36)). When asked by the Crown in chief what was the purpose of the second visit, YL said (Tcpt, 30 March 2021, p 278(44-48)):

“This was to complete my portfolio, so I paid him that deposit, the $1,000 was a deposit. He promised me a number of pictures which we can’t finish all within one day, so that was the purpose of returning. And this time I had hair and makeup done for the shoots, I had somebody do hair and makeup for me.”

93. YL was cross-examined in some detail about two emails she sent to the applicant between the first and second photoshoots. The subject of the first email, dated 8 April 2012, was “LOVE THIS!” (Exhibit 4). It included a picture of the actor, Angelina Jolie, posing in lingerie and with a cigarette in her mouth, above which YL had written, “I’d loveeee to do something like this!”. YL accepted that she had earlier given evidence that she had no interest in doing lingerie shots. When asked, in effect, to explain why she sent this email to the applicant, YL gave the following evidence (Tcpt, 31 March 2021, p 376(1-38)):

“A. Okay, so, okay so I sent him that picture because I loved cigarette shots, I loved her attitude in that picture, she was like a boss babe, it was really inspiring to me. And the reason why we ended up doing lingerie, why I even suggest to do lingerie, because he told me that’s what I needed to do in order to become a true, real model and land on the cover and work with the biggest brands and become famous. That’s the dream he sold me.

Q. Sorry, you just conceded that you suggested to do lingerie?

A. No, I said if I would ever, this is the picture, I sent him a picture. Obviously she’s, you told me, please accept that this, she’s in lingerie. The reason I’m telling you, the reason why I sent her, sent him the picture is because I wanted to follow my dreams and follow what he told me, the things he promised me, so that was a part of that vision. He told me one of the pictures you have to do is lingerie, he said no model has a career without lingerie, he said no model has a portfolio without lingerie. So I had to put lingerie in my portfolio, that’s what I felt like I had to do --

Q. And you see --

A. -- I felt like I had no other choice.

Q. Just focus your mind on my questions. You see, so traumatised were you by this experience that you had with this man that here you are, two days later, urging him to take a lingerie shot with you, that’s what you’re doing in this.

A. No, it was about the cigarette. Like I said, I like the picture, I like the cigarette pictures, even to this day I love cigarette pictures, the attitude behind it. Angelina Jolie was very inspirational in that picture with the cigarette, so it was more about the cigarette. So I’d like for you to stop focusing on the lingerie because it was never about that, the focus was the cigarette.”

94. YL denied that in sending this email to the applicant she was conveying that she had no difficulty being in this state of undress with him (Tcpt, 31 March 2021, p 377(1-10)).

95. YL was also asked about an email she sent to the applicant dated 15 April 2012, in which she provided a series of pictures of women in various outfits, including swimsuits, lingerie, dresses, shirts and jackets (Exhibit 5). When it was put to YL that she was sending these pictures to show the type of shots that she wanted, YL said “[t]hey were based on what he told me I need to have in my portfolio”, and that she was giving him pictures “based on his vision and asking him to clarify if these would fit the vision so that I can become a successful model” (Tcpt, 31 March 2021, p 385(20-42)). YL maintained her evidence in this regard when the pictures she included in this email were compared against photographs that were taken during the second photoshoot, which she was shown (Tcpt, 1 April 2021, p 439(30-40)).

96. Counts 11 to 14 were alleged to have occurred during the second photoshoot. In relation to the woman who attended to do her hair and makeup, YL could not recall her name and said that she left after completing her hair and makeup (Tcpt, 30 March 2021, p 279(22-24)). In cross-examination, YL was referred to her first statement and explained that she felt comfortable when there was someone else present, and she did not feel comfortable being alone with the applicant. She also gave evidence that she remembered asking a friend to go with her but they were not available and so she went alone (Tcpt, 1 April 2021, p 418(10-50)). YL then gave evidence that the applicant had an issue with her bringing a friend. She accepted she had not said anything about this in her statements but did not accept that it was an important piece of information when compared to everything else in the statements. YL denied that the reason she did not bring someone to the second shoot was because there was no reason to do so (Tcpt, p 422(15)-423(50)).

97. When YL was subsequently shown photographs of the second shoot, it was pointed out to her that the makeup artist appeared incidentally in a number of the photos, including after she was wearing lingerie. YL accepted that she was wrong when she had told the court that the makeup artist was not present for the shoot (Tcpt, 1 April 2021, p 436(1-34)). She did not accept the proposition that she was wrong because she was lying (Tcpt, p 436(45-50)).

98. YL’s evidence was that the applicant gave her lingerie to wear. YL said to him, “[n]o way, I’m not wearing that” but she ended up putting the lingerie on (Tcpt, 30 March 2021, p 279(25)-(26)). YL was challenged in cross-examination on what she said in her first police statement, namely that she had put the lingerie on against her will. She gave evidence that it was against her will in the sense that she was manipulated, threatened and brainwashed into thinking that if she did not do this, she was going to have a bad portfolio and she was not going to be a successful model: “because he said, ‘Every model has to do this’” (Tcpt, 1 April 2021, p 425(10-33)).

99. YL described the lingerie as “like a gold, brown, nude colour”, and sheer; she was shown a photograph of herself and agreed that she was wearing the lingerie she had just described (Exhibit D) (Tcpt, 30 March 2021, p 279(25)-280(7)). Count 11 occurred when YL was trying to cover her breasts with the bra (which was small and exposed her nipple) and she kept putting her hand to the bra while the applicant was taking photos. The applicant did not like her doing this, and at one stage he came over and put his hand inside her bra, and grabbed her breast, making comments like “[d]on’t fucking touch them”, “[d]on’t fucking move”, and “[d]o I have to come over there and punch your lights out” (Tcpt, p 280(30)-281(13)).

100. As to count 12, YL gave evidence that the applicant made her put on a G-string, and kept asking her to turn around so that he could see her bottom. He said to her, “[f]uck. No guy would ever fuck you from the front again” and then he grabbed her butt cheeks really hard, leaving a red mark (Tcpt, 30 March 2021, p 281(16-30)). In cross-examination, YL gave evidence that the G-string was part of the lingerie set that included the small bra (Tcpt, 1 April 2021, p 426(31-35)). When referred to what she said in her statement to the effect that the applicant made her put on the G-string, YL gave an explanation that was similar to that for putting on the bra, in the sense of being manipulated by the applicant. She also gave evidence that she said, “[n]o way”, although the Crown conceded that in her police statement YL had not recorded that she said anything to that effect at this point (Tcpt, p 426(40)-427(29)).

101. Counts 13 and 14 occurred after the shoot finished. In cross-examination, YL confirmed that towards the end of the second photoshoot they had driven to a body of water near Balmain and the applicant had taken photos of her in swimsuits (Tcpt, 1 April 2021, p 428(16)-(27)). At some point the shoot concluded and they returned to the studio, because YL still had her stuff there and the applicant wanted to show her the photos on his laptop. She disagreed that she could have just collected her things and left, stating that given he wanted to review the pictures she wanted to stay and do that so she would not have to return. YL denied that returning to the studio with the applicant reflected a collaborative working arrangement between her and the applicant (Tcpt, p 429(22)-430(19)).

102. YL’s account of count 13 in her evidence in chief was that she and the applicant were at the studio looking at the photos he had taken, which he had loaded on his computer. According to YL, the applicant was “very touchy” and he grabbed her hand and put it on his crotch over his penis, and said, “[d]o you want to give me a blow job?” YL moved her hand away and said to the applicant, “[d]on’t do that” (Tcpt, 30 March 2021, p 282(39)-283(11)).

103. The conduct the subject of count 14 occurred after the applicant had grabbed YL around the waist and pulled her on to his lap. YL said that he wrapped his hands around her and started kissing YL on the neck and would not let her go. He also put his lips to her lips. Her evidence was that eventually he let go of her and she pulled away, got off his lap and left the studio (Tcpt, 30 March 2021, p 283(13)-284(25)).

104. In cross-examination, YL was shown the photographs that the applicant took during the second photoshoot (Exhibit 17). She denied the propositions that counsel put to her on the basis of those photographs, including that she had asked to wear the outfits in which she was photographed, that she had asked to shoot in lingerie and wanted a swimsuit shoot, and that she was open to “dabbling in some semi-nude photos”. YL also denied that the things she alleged the applicant did to her in the course of the second photoshoot did not occur, and denied that at all times she was perfectly happy and satisfied with what was occurring at this shoot (Tcpt, 1 April 2021, p 433(43)-434(36)). She did accept that what the photos depicted was inconsistent with what YL said occurred at the shoot, saying that this was “[v]ery correct, yes.” (Tcpt, p 435(12-14)).

105. YL was shown a number of messages that she wrote between the second shoot and the third shoot, which took place on 22 April 2012. Two emails from YL to the applicant dated 16 April 2012 (Exhibit 6), when read together, stated:

“I absolutely love doing shoots woth [sic] [the applicant], not only because he strives to perfect every singledetail [sic] that goes into the fabulous shots he takes, but he is fun to work with and gives you faith in yourself. [The applicant] does not do a single shot half-hearted! He is so enthusiastic and im [sic] so honoured that he asked me on a shot [sic] – [the applicant] has developed my modeling [sic] skills and has given me belief… in the fact that I can be a top model and it is not just a dream.”

106. In re-examination, YL said that she sent this email to the applicant because he had asked her for a testimonial and she did not want to be on his bad side, or to suspect her for later reporting him to the police (Tcpt, 1 April 2021, p 482(30-41)).

107. On 18 April 2012, YL had a public Facebook exchange with a woman whom YL described in her evidence as the owner of a clothing brand (Exhibit 8). In the exchange, the woman complimented YL on some photographs from “the Doll house shoot” (The Doll House being the store where YL worked). When YL said in response that she had been working with the applicant, the woman replied:

“Oh I know [the applicant], not very impressed with his work for me but ur [sic] shots look great!! Very sleazy”

108. In response, YL wrote:

“Oh sorry to hear that.. he didn’t come across as that when I shot with him.. but he’s definitely getting me lots of work :) I love your model Nora shes [sic] stunning!”

109. Counsel for the applicant put to YL that the reason she wrote, “he didn’t come across as that when I shot with him” was because that was the truth. YL said that was incorrect (Tcpt, 31 March 2021, p 394(24-26)). In re-examination, YL was asked why she did not tell Ms Minassian what her experience of the applicant was; her response was that, as with the reference in Exhibit 6, she did not want the applicant to suspect anything and did not want to be on his bad side (Tcpt, 1 April 2021, p 483(8-24)). Counsel for the applicant asked YL whether she had deliberately omitted including references to her various email communications with the applicant in her police statements. She denied that she had done so and she disagreed that the emails told a very different story to the evidence she had given to the jury (Tcpt, p 444(36-43)).

YL’s third photoshoot with the applicant

110. On 18 April 2012, YL had paid the applicant another $800 by bank transfer. On 22 April 2012 she returned to the applicant’s studio at around 8am or 9am, for the purpose of selecting photos to go into her portfolio. Although that was the purpose of her visit, YL gave evidence that the applicant made her change into some briefs that he had at the studio and he took more photos (Tcpt, 30 March 2021, p 284).

111. In cross-examination, YL gave evidence that she did not want to participate in a further photoshoot and that it was not what she had paid for, but she felt manipulated and did not want to alarm him; this shoot was effectively for his pleasure. YL disagreed with the suggestion that in light of the $800 transfer she had made, the third photoshoot was a continuation of the portfolio shooting process (Tcpt, p 445(15)-446(16)). She agreed that she had not mentioned in her police statements, or in her evidence in chief, that she considered the third shoot to be for the applicant’s pleasure because the pictures were not for her portfolio, and said this was the result of looking back at the shoot as a more mature person (Tcpt, 1 April 2021, p 449(28-37)).

112. YL gave evidence in chief that count 15 occurred when she was in the process of adjusting the briefs she was wearing. YL’s evidence was that the applicant came over and tried to adjust the briefs for her, telling her that she needed to tuck in her underwear. While doing so, he touched her vagina on the outside of her underwear. YL recalled that he pressed two fingers firmly against her vagina (Tcpt, 30 March 2021, p 284(42)-285(30)). In cross-examination, YL said that he threatened to come over if she did not tuck the briefs in, and he still came over and grabbed her vagina. The Crown conceded that there was nothing in her statements to the effect of a threat (Tcpt, 1 April 2021, p 447(5-17)).

113. It was put to YL, and she denied, that in the third shoot she wanted to explore the taking of semi-nude photographs. She gave evidence that in the photos from the second photoshoot where she was semi-nude and looked content and comfortable, she was doing what a model does, and that she was a great model (Tcpt, 1 April 2021, p 450(20-47)). As with the other shoots, YL was taken through the photographs from the third shoot (Exhibit 19). She accepted that part of that shoot was at a location away from the studio, stating that she did not recall that had happened (Tcpt, p 451(39-49)). Having been shown the photos, YL denied that there was no inappropriate touching during the third shoot, and she denied that she was perfectly happy being at the shoot (Tcpt, p 452(48)-454(2)). When asked, as she was about the previous shoots, whether the photos were inconsistent with the evidence she had given about what had occurred, YL said: “[w]hat happened, happened, but the photos show a happy model. That’s what you’re saying, and I agree with that.” (Tcpt, p 453(5-22)).

114. Towards the conclusion of her evidence in chief, when the Crown asked YL why she returned to the studio for a second and third time given what she alleged had occurred during the first photoshoot, YL gave the following evidence (Tcpt, 30 March 2021, p 286(7-16)):

“The first reason was he brainwashed me into – and manipulated me into believing that he is this top photographer, that he shoots for Sports Illustrated, that he can get me on the cover. He was, like, he could get me on the cover by September 2012 and I really wanted that, and I’m a very determined person so I was – I was like ‘This is my only way of becoming a famous model’, basically. And then the second reason was because I already paid him that deposit. I just wanted all my pictures. I thought we were going to be able to finish them all within one day. That’s why I returned the second time. However, we didn’t finish all of it and so I returned again. I got all my pictures. I never returned.”

115. YL said that at first she did not tell anyone about what she alleged the applicant had done, but she ended up telling her friend, Olivia (Tcpt, 30 March 2021, p 288(37-44)). YL also gave evidence that she made a complaint to a government body (Fair Trading) about the applicant because she did not receive all of her photographs. She recalled also texting the applicant directly (Tcpt, p 289).

116. It was put to YL in cross-examination that in or about June 2012, the relationship between her and the applicant had “turned sour”. She did not accept that proposition, stating that it had always been sour, “he just didn’t know it” (Tcpt, 1 April 2021, p 453(31-34). YL was taken through emails that she sent the applicant on 29 June 2012 in which she noted that she had not received her portfolio and demanded a refund by 6 July 2012 and a reply to her email by 30 June 2012, otherwise she would make a claim in the Local Court (Exhibit 21 and 22). YL accepted that at the time she wrote those emails she felt very strongly about obtaining her portfolio (Tcpt, p 455(26)).

117. YL accepted that in an email she sent to the applicant on 1 July 2012 she informed him that she had taken legal action that morning, and described that action as reporting the applicant to “Fair Trade” (Exhibit 23) (Tcpt, 1 April 2021, p 456(27-29)). However, she denied that the report she made (to Fair Trading), in which she referred to the applicant not having provided her with a portfolio despite her payment of $1,800, was the only concern she had about his conduct as at 1 July 2012. In response to the suggestion that she had made no reference in her complaint to Fair Trading about the pattern of physical and sexual abuse, YL replied, “[t]hey’re different, two different concerns” (Tcpt, p 456(27)-457(15)). Counsel for the applicant contended that this was not an answer to his question; and he put the question again (Tcpt, p 457(32-37)):

“Q. …Nowhere in your complaint to New South Wales Fair Trade do you mention anything about the repeated and systematic physical and sexual abuse you say you suffered at the hands of [the applicant]?

A. Of course not.”

118. Counsel then put to YL that the approach she made to the police was motivated by information she received from Fair Trading on or about 4 July 2012, to the effect that it would not be taking her complaint any further; and that she had made up “this rubbish”, which she denied (Tcpt, 1 April 2021, p 458(33)-459(14)).

The evidence of YL’s friend, Olivia

119. Olivia confirmed that she attended the applicant’s studio in Balmain in April 2012 with YL, whom she had known for two years. (Tcpt, 6 April 2021, p 497(10)-498(6)). Her recollection was that she was there for about two or three hours and that for most of that time, the three of them were talking. She gave evidence that the applicant was showing them his past work and showing them everything in his studio, “then at the end, that is when the incident occurred, and I left immediately, soon after” (Tcpt, p 498(33)-499(1)). When asked what happened, Olivia gave evidence that the applicant touched YL inappropriately on the nipple. Her evidence was that YL was wearing a sheer black top when this happened (Tcpt, p 499(9-35)). She subsequently said that the applicant touched YL’s nipple on the outside of the top (Tcpt, p 501(6-9)).

120. Although she could not remember exactly what words the applicant used, Olivia said that he “was expressing that he thought her nipple was – it wasn’t – like he was just expressing that it was beautiful and then he invited me to touch it as well”. When asked what the applicant said or did for him to invite her, she gave evidence that she did not remember the verbiage, but he thought her nipple “was beautiful and that I should touch it and admire it with him” (Tcpt, 6 April 2021, p 500(1-24)). Olivia said that she was incredibly disturbed and froze up (Tcpt, p 500(26-36)).

121. Olivia gave evidence that pretty soon after the applicant touched YL’s nipple, she pulled YL aside and said to her that she had an assignment due and needed to leave; and she asked if YL would like to come with her. YL said to her, “I paid a lot of money for this. I need to stay”, and so Olivia left alone (Tcpt, 6 April 2021, p 500(43)-501(1)). She could not recall whether the applicant had taken any photos by the time she left, but he was “definitely testing the camera equipment”. She also gave evidence that in the days following the incident, YL approached her and told her something about what had happened at the studio with the applicant after she (Olivia) left, but she did not go into any detail (Tcpt, p 501(21-35)).

122. In cross-examination, Olivia gave evidence that she had discussed the events of that day with YL around the time, but after that they did not really discuss it, although she accepted that they may have done so (Tcpt, 6 April 2021, p 503(19)-504(1)). She was then cross-examined on the first statement she made to police in February 2014, in which she did not refer to the applicant touching YL’s nipple. Olivia accepted that she understood it was important to tell the police what she observed, and that it was likely that she was told not to leave anything out (Tcpt, p 505-506). She was then asked about the second police statement that she made on 1 April 2021, which was the first time she had raised the incident about which she gave evidence. Olivia agreed and attended the court precinct on 1 April 2021. During the day she spoke to her mother “because I was – I knew I had to say more”, but she did not speak to anyone else about her evidence apart from the Crown Prosecutor (Tcpt, p 509-510).

119. It was pointed out to Olivia that nowhere in either statement had she mentioned anything about a strangling incident. She agreed with that proposition; she also agreed that a strangling incident was a surprise to her (Tcpt, 6 April 2021, p 510(50)-511(5)). She maintained in cross-examination that the applicant had touched YL in the way she had said (Tcpt, p 517(33-45)). In re-examination, when asked why she did not tell the police in her first statement the things she told them in her second statement, Olivia said: “I felt embarrassed to talk about what I had seen. I felt uncomfortable and I was also frightened at the time.” (Tcpt, p 518(40-44))

The applicant’s interview with police

124. The Crown tendered a copy of the police interview in which the applicant participated on 1 February 2017 in relation to the allegations concerning YL, with some modifications (Exhibit L). In the course of the interview, the applicant denied the allegations and expressed surprise and shock as the allegations YL had made were read to him. He also invited the police to review the photos he took in the course of the three shoots before taking matters further.

The applicant’s evidence

125. The applicant denied engaging in any of the conduct that was alleged against him by YL across the three photoshoots (Tcpt, 13 April 2021, p 732). In cross-examination, the applicant gave evidence that notwithstanding her inexperience, YL was “a very highly energetic, bubbly girl who wanted to do stuff” (Tcpt, 14 April 2021, p 774(7-12)). On his evidence, YL started the first photoshoot in an orange top and only later changed into a sheer top. He denied touching her at any time during the first photoshoot (Tcpt, p 777(29)-778(20)). He denied that he made YL change into the blue swimsuit or that he engaged in the conduct that was the subject of counts 7 to 9, or in the conduct that YL alleged occurred after she got changed (Tcpt, p 778(35)-784(21)). The applicant also denied engaging in conduct during the second photoshoot that was the subject of counts 11 to 14 (Tcpt, p 786(19)-789(34)). In relation to the third photoshoot, the applicant denied that he had adjusted the briefs she was wearing and denied that he had pressed his fingers against her vagina (Tcpt, p 791(5)-792(35)).

The applicant’s submissions

126. In his written submissions, the applicant raised a series of issues with YL’s evidence that he submitted detracted from her credibility such that the Court should entertain a reasonable doubt about the allegations in counts 3 to 15. In oral submissions, Senior Counsel for the applicant synthesised these issues into six broad matters.

127. The first matter was the inconsistencies that eventuated or existed between the evidence of YL and the evidence of Olivia, both in relation to the alleged strangulation incident that was the subject of the common assault charge and in relation to Olivia’s later evidence about the applicant touching YL’s nipple. The applicant emphasised the absence from Olivia’s evidence in chief of any reference to the strangulation incident that YL alleged occurred while she was present; and her reaction of surprise when asked about it in cross-examination. The applicant submitted that it was highly unlikely that Olivia would forget an incident that was, on YL’s evidence, of significant violence and brutality.

128. Olivia’s surprise when the alleged strangulation incident was put to her in cross-examination was clearly in contrast with YL’s account. In dealing with the common assault charge that related to this alleged incident, one of the reasons that the trial judge was not satisfied beyond reasonable doubt of the applicant’s guilt was because Olivia did not support YL’s version of events. However, it did not follow from this difference in their evidence that the jury could not accept YL’s evidence on the conduct the subject of the counts on the indictment as reliable and/or credible, in circumstances where Olivia’s evidence supported that such conduct occurred. True it is, as the applicant submitted, that there was a difference in the detail of the offending conduct, with Olivia giving evidence that the applicant touched YL on the outside of the sheer top whereas YL’s evidence was that he reached into her top. It was also no part of YL’s account that the applicant invited Olivia to participate. However, given the passage of time, those differences of detail do not affect the support that Olivia otherwise provided YL’s evidence that the applicant touched her nipple. That she witnessed that incident was consistent with the account YL had given in her first police statement, that Olivia was present for the first of those incidents and left shortly thereafter.

129. Senior Counsel later submitted that given the serious nature of what Olivia said she had observed, there was a real question as to why she would have left the studio without taking YL with her, and the fact that she left was more consistent with the account in her first police statement (that the applicant engaged in merely flirty behaviour). However, Olivia provided a plausible explanation in her evidence, that she was very disturbed by what she had seen and that her reaction was to leave as soon as possible even though YL would not come with her. Her level of disturbance was also consistent with the explanation she gave as to why she only came forward with this evidence at the time of the trial, which was well after she first spoke to police.

130. The applicant also raised an issue about the sequence of the alleged offences having regard to the photographs from the first photoshoot (Exhibit 2), in particular that YL was wearing an orange top in the first of the photographs. In circumstances where Olivia said that YL was wearing a black sheer top when the incident about which she gave evidence occurred, Senior Counsel submitted as follows:

“If it be the case that [Olivia] had stayed around to the time that the complainant was wearing a sheer top, then she would have been present to observe that particular allegation, and that doesn’t accord with the evidence that she gave. She doesn’t give any evidence of an event occurring while the complainant was wearing an orange top. She gives evidence of something happening while the complainant was wearing a sheer top and that is different in material respects from the version given by the complainant. It is of the whole context in which she was invited to participate.”

131. This submission assumed that YL commenced the photoshoot wearing an orange top. That was a possibility that YL accepted in cross-examination (see [83] above). However, her evidence in chief was that she first put on a sheer top; and Olivia’s evidence that YL was wearing a sheer top when the applicant touched her nipple was consistent with YL’s evidence that the first of the acts about which she gave evidence took place when she was wearing a sheer top. Olivia gave evidence that she was not sure that the photoshoot had commenced at that time, although she recalled the applicant testing his equipment (see [121] above). There was also consistency between YL’s account of what she said happened around the time of count 3, giving evidence that the applicant said that her breasts “look really nice”, and Olivia’s account of what happened, which involved the applicant admiring YL’s breasts.

132. The second matter the applicant advanced was what he submitted were patent inconsistencies or areas of implausibility arising from the contemporaneous documents. Senior Counsel took the Court to a number of documents, including an image from the first shoot that YL posted on one of her websites (Exhibit 1); the emails that she sent to the applicant between the first and second photoshoots (Exhibits 4 and 5) (see [93]-[95] above); the testimonial that she wrote for the applicant on the evening of 16 April 2012 (Exhibit 6) (see [105] above), and YL’s messages with the fashion label owner on 18 April 2012, including her response, to the suggestion that the applicant was “[v]ery sleazy”, that “he didn’t come across as that when I shot with him” (Exhibit 8) (see [107]-[108] above).

133. The applicant submitted that YL’s explanations for these documents (she did not want the applicant to suspect anything, she wanted to stay on his good side, and that she did things for her safety) did not withstand scrutiny. I do not accept that submission. I have set out above what YL said about the various emails on which the applicant relied, as he did at the trial. YL was consistent in her evidence that she was an aspiring model who believed that the applicant, whose photographs had been published in major magazines, would make her famous. By the time of the second photoshoot, she had paid him a significant amount of money for a portfolio. Seen in the context of this evidence, that YL relied on what he told her about the type of photos she needed for that portfolio was credible, as was her evidence that she provided him a reference as he requested, and that she did not wish to endorse any adverse comments about him or otherwise to get on his bad side.

134. Senior Counsel for the applicant took the Court to a further three documents that he submitted illuminated the relationship between the applicant and YL, and indicated that contrary to the themes of her evidence (that she was coerced and was acting on the applicant’s direction), YL not only had agency but was a very determined person. In two of the three emails (Exhibits 13 and 15), which were sent in mid-May 2012, YL was asking the applicant for particular photographs and types of photographs. In the third email (Exhibit 16), dated 30 May 2012, she sent the applicant a link, making a comment on another person’s tan lines. At the time she sent these three emails, YL was still waiting for delivery of her portfolio, for which she had paid the applicant $1,800. Her emails to the applicant after the photoshoots were consistent with the determination she had at the time to become a famous model, and with her evidence that it was the applicant who, in her mind, would kickstart her career, and whose photographs she had paid for and had yet to receive.

135. The third matter the applicant advanced was the evidence of the photos from the three photoshoots (Exhibits 2, 17 and 19). Senior Counsel for the applicant submitted that many of the images involved a risqué aspect, frequently showing YL in a state of undress to one degree or another. He submitted that the images supported that YL exerted a degree of agency throughout all of the shoots and, contrary to her evidence, had an interest in the type of photographs that were taken. The explanation that YL gave, that she was a very good model, was not plausible in circumstances where the questioning related to her first photoshoot.

136. There is an assumption implicit in this submission that I consider to be misplaced, namely, that a person who was assaulted in the manner that YL alleged could not also appear unaffected by such conduct in relatively contemporaneous photographs. YL gave evidence that she felt like crying after the first photoshoot, and she did cry when she arrived home (Tcpt, 30 March 2021, p 278(16)). That YL did not display any disquiet in the photographs and maintained her composure was entirely consistent with her evidence that she was intent on a modelling career and it was the applicant who, as the professional, was in charge of the shoots and directed her as to what she should do. That YL displayed a lot of confidence in her modelling abilities when questioned about her demeanour as seen in the photographs, does not relevantly undermine the force of her evidence.

137. The fourth matter on which the applicant relied was evidence that raised questions about the plausibility of YL’s version of events, including: her returning to the applicant’s studio on two further occasions after the first shoot; the length and scale of the third photoshoot, which was inconsistent with YL’s evidence that the shoot was merely for the applicant’s pleasure; that YL had access through the model mayhem website to thousands of photographers; and that she “spruiked” the applicant in the testimonial (Exhibit 6). The applicant also relied on another occasion when YL left a message for another woman when they both attended the same beauty salon, with the message suggesting that the woman contact the applicant. The applicant submitted that this was inconsistent with YL not wishing upon another woman what happened to her. Both of these issues can be explained on bases to which I have already referred in answer to the first three issues. I have noted YL’s explanation as to why she returned to the applicant’s studio for the second and then the third photoshoot, which was entirely plausible. As to her “spruiking” the applicant, for the reasons I have given in relation to the second matter on which the applicant relied I do not accept that this evidence gives rise to a reasonable doubt about the applicant’s guilt on the counts involving YL.

138. The fifth matter was the circumstances surrounding YL’s complaint to the police and possible motive to lie. The applicant relied on the timing of YL’s complaint to police and its coincidence with the advice from Fair Trading that if she did not obtain a refund from the applicant (who had not delivered her portfolio) she could take her claim to the relevant tribunal. Senior Counsel for the applicant emphasised in oral submissions that in her statement to police, YL sought both a criminal remedy, in the form of an apprehended violence order (AVO), and a financial remedy; and then withdrew the application for an AVO after the date on which she received the photographs from the applicant. However, YL received the photographs in 2012 and yet maintained her account of what occurred, in a trial in 2021. The passage of time weakened the motive to lie that the applicant sought to attribute to YL.

139. The final issue on which the applicant relied was the manner in which YL gave her evidence. The applicant submitted that there was a stark contrast between the manner in which YL gave her evidence in chief and in re-examination and the manner in which YL gave evidence in cross-examination. Senior Counsel for the applicant submitted that on reading the transcript, it was apparent that YL often took on the role of an advocate and not a witness, volunteering self-serving material when giving non-responsive answers; and that she was highly argumentative.

140. I have reviewed the whole of YL’s evidence carefully, as I have all of the evidence in the trial. I accept, as did the Crown, that YL comes across, in her answers as recorded in the transcript, as a very confident person who had a strong personality. She had a number of combative exchanges with the applicant’s counsel in the course of cross-examination, which extended over four days. There were also occasions when, as the applicant submitted, YL’s conduct in court was not consistent with what would be expected of a witness, even accepting that she was giving evidence by audio visual link from overseas. By way of example, at the outset of the cross-examination she refused to give evidence about other names by which she was known, disconnecting the link, subsequently reconnecting, and only answering at the direction of the trial judge. On another occasion towards the beginning of her evidence, YL accepted that she was on her phone and said she was checking her stock portfolio. However, reading her evidence as a whole, I do not consider that the manner in which YL gave evidence was of a nature that gives rise to a reasonable doubt that the applicant committed the offences the subject of counts 3 to 15. In this respect, the jury had the advantage, to which I have referred above, of seeing and hearing YL give evidence, and the evidence of the other complainants.

141. In this regard, it is of some significance that, as I noted at the outset, the Crown relied on the evidence of each complainant as cross-admissible on the other counts for a tendency purpose. The Crown alleged that the applicant had a tendency to have a sexual interest in young women aged between 18 and 21 years of age, and to act on that sexual interest by creating an opportunity to be alone with them for the purpose of photoshoots and engaging in sexual conduct with them while they were under his direction during the photoshoot. Accepting, as the applicant submitted, that tendency reasoning should not be used to fill gaps in the Crown case, the evidence was well capable of establishing that the applicant had the tendencies that the Crown alleged. As the trial judge directed the jury (which direction was not the subject of any separate complaint), those tendencies could be used in considering whether it was more likely that the applicant committed the specific offences with which he was charged.

Conclusion

142. Taking account of the applicant’s arguments, viewed both individually and cumulatively, and having made my own assessment of the whole of the evidence in the trial, I have concluded that the evidence was sufficient in nature and quality to eliminate any reasonable doubt about the applicant’s guilt of counts 1 to 16 on the indictment. I propose the following orders:

1. Time be extended to 16 June 2023 for the applicant to file the notice of appeal

2. Grant leave to appeal.

3. Dismiss the appeal.

143. CAVANAGH J: I have had the benefit of reviewing the judgment of Mitchelmore JA. I agree with the orders proposed by her Honour.

144. I have carried out my own independent review of the whole of the record. In my view, having regard to the whole of the evidence, it was open to the jury to be satisfied beyond a reasonable doubt that the applicant was guilty of the charges of which he was convicted (Dansie v The Queen (2022) 274 CLR 651 at [8] (‘Dansie’)).

145. The jury must be taken to have accepted the evidence of each of the complainants as to the conduct of the applicant. Juries are instructed they may accept or reject all or part of the evidence of any witness. The matters raised by the applicant, essentially going to the credibility of each of the complainants, in separate ways, might have raised a doubt as to the guilt of the applicant but the matters were quintessentially matters for the jury to consider and resolve. Whilst consideration of such matters does not lie beyond the scope of this Court’s independent assessment (Dansie at [12]) the matters raised by the applicant do not cause me to conclude that the jury ought to have had a doubt as to the guilt of the applicant.

146. The jury had the advantage of seeing and hearing the witnesses, including the complainants and the accused. It was the jury’s function to resolve any inconsistencies in the evidence and give such weight to the different aspects of the evidence as they saw fit.

147. This court will only intervene in circumstances in which the jury ought (not might) have had a doubt as to the guilt of the accused (Pell v The Queen (2020) 268 CLR 123 at [39]). I am not so satisfied that the jury ought to have had a doubt.

148. In the circumstances the appeal must be dismissed.

149. WEINSTEIN J: I have had the significant benefit of reading the reasons of Mitchelmore JA in draft form. Having conducted my own assessment of the evidence, and having regard to the matters set out in detail by Mitchelmore JA, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant with respect to the counts for which he was convicted. Accordingly, I agree with the orders proposed by Mitchelmore JA.

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Decision last updated: 21 February 2024