Rubinstein v R

[2023] NSWCCA 288

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rubinstein v R [2023] NSWCCA 288

Hearing dates:

13 November 2023

Decision date:

22 November 2023

Before:

Adamson JA at [1]; Button J at [143]; R A Hulme AJ at [146]

Decision:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

Catchwords:

APPEALS — crime — appeal against conviction — sexual intercourse without consent — unreasonable verdict — credibility of complainant — alleged inconsistencies in complaint evidence to friends and family — whether aspects of complainant’s evidence and behaviour towards applicant would cause jury to have a reasonable doubt — appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), ss 61I, 61HE

Criminal Appeal Act 1912 (NSW), s 5

Cases Cited:

Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48

Liberatov The Queen (1985) 159 CLR 507; [1985] HCA 66

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

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

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

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

Category:

Principal judgment

Parties:

Maxime Rubinstein (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Game SC / A Cook SC (Applicant)
M Millward (Respondent)

Solicitors:
Unsworth Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2021/55399

Publication restriction:

Publication of names and any information or material that may lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 September 2022

Before:

Wilson SC DCJ

File Number(s):

2021/55399

HEADNOTE

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

Maxime Rubinstein (the applicant) sought leave to appeal against his convictions for three offences (two counts of unlawful sexual intercourse without consent and one count of attempting unlawful sexual intercourse without consent) contrary to s 61I of the Crimes Act 1900 (NSW) following a trial by jury. Each of the offences was alleged to have been committed against a single complainant in the early hours of the morning.

There was no issue at trial that sexual intercourse (digital and oral) had occurred on two occasions and that the applicant had also attempted to have penile-vaginal intercourse with the complainant. The issues were confined to whether the prosecution had proved that the complainant did not consent on each of these occasions and the applicant’s state of mind as to her consent.

The night before the alleged offending, the complainant met a colleague and the colleague’s friends for drinks to celebrate the colleague’s birthday and the colleague’s change in jobs. The complainant drank throughout the night. At around 10pm, the women arrived at a bar and were later approached by a group of men, including the applicant. They moved to another bar with the group. The men purchased the women’s drinks at the second bar. The complainant agreed to have a small amount of cocaine offered by one of the men in the group. At about midnight, the group travelled to the colleague’s apartment where, by prior arrangement, the complainant was to stay overnight in the second bedroom. The members of the party continued to drink alcohol. When the colleague went to bed at around 3am, the two men, including the applicant, remained in the apartment. The complainant went into the second bedroom with the intention of going to sleep and announced to the two men that she did not want to have sex that night. The applicant went into the room with her.

The complainant initially lay on top of the covers with her clothes on but took off her trousers after the applicant assured her that they were just going to sleep. While they were in the bedroom, they kissed, which the complainant accepted was mutual. The applicant then digitally penetrated the complainant’s vagina. The complainant’s evidence was that she told the applicant “no” and “stop” repeatedly and tried to move his hand. At some point after the digital penetration, the complainant lost consciousness. When she woke up, the applicant was performing oral intercourse on her. Again, she tried to get him to stop by telling him to stop and trying to move his head. The applicant then attempted to have penile-vaginal intercourse but when he could not get a full erection, she asked if they could stop. She then ordered an Uber and left the apartment.

The complainant made multiple complaints shortly after leaving the apartment: she texted her colleague and two other friends in the Uber on her way home; she called her manager later in the morning; and called her mother in the afternoon. The following day, she reported the matter to the police and made a statement, which she signed.

The applicant sought to appeal on the ground that the verdict was unreasonable. He particularly relied on the following facts: the applicant and the complainant had got into the bed together; they had been particularly friendly with each other over the course of the night; when the complainant got into the bed she was wearing a top with no bra and lace underwear; there was mutual kissing; the complainant moved the applicant’s hands from her genital area to her breasts; the complainant told the police that she thought the applicant thought that she was enjoying herself; the applicant could not get an erection and the attempted intercourse stopped when the complainant asked if they could “at least just stop” for this reason; the applicant offered to walk her out to her Uber; she told friends he looked as if he did not comprehend what was going on when she left; and she voiced concerns to police that she may have not been clear enough regarding her lack of consent. The applicant also submitted that there were inconsistencies in the evidence of complaint which made her evidence unreliable.

The Court held (Adamson JA, Button J and R A Hulme AJ agreeing) dismissing the appeal:

1. It was open to the jury to return verdicts of guilty in respect of the three counts charged. None of the arguments advanced on behalf of the applicant cast doubt on the reasonableness of the verdict: Adamson JA at [118], [140] (Button J agreeing at [143]; R A Hulme AJ agreeing at [146]).

2. The jury is entitled to have regard to the context and purpose of each complaint and the timing of the complaint itself and when the recipient of the complaint was first asked to recall its contents when adjudging its consistency with the complainant’s evidence at trial: Adamson JA at [126] (Button J agreeing at [143]; R A Hulme AJ agreeing at [146]).

3. The observed injury to the genitals of the complainant is a significantly inculpatory factor in the context of the other evidence in the trial: Button J at [144].

JUDGMENT

1. ADAMSON JA: Maxime Rubinstein (the applicant) seeks leave to appeal from his convictions for the following three offences contrary to s 61I of the Crimes Act 1900 (NSW) alleged to have been committed on 11 February 2021 against a single complainant: one count of unlawful sexual intercourse without consent by digital penetration; one count of unlawful sexual intercourse without consent by cunnilingus; and one count of attempting unlawful sexual intercourse without consent (penile-vaginal). On 28 September 2022, the jury returned verdicts of guilty on each count following a trial over which Wilson SC DCJ (the trial judge) presided.

2. Of the two grounds for which the applicant initially sought leave to appeal, only the first is pressed:

“1   The verdicts on all counts are unreasonable and cannot be supported by the evidence.”

3. Leave to appeal is required as this ground does not involve a question of law alone: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

4. For the purposes of addressing this ground, it is necessary to review the whole of the evidence at the trial to determine whether it was open to the jury, properly instructed and acting reasonably, to be satisfied of the applicant’s guilt on each charge beyond reasonable doubt: M v The Queen (1994) 181 CLR 487; [1994] HCA 63.

5. There was no issue at the trial that sexual intercourse between the applicant and complainant had occurred on two occasions (the first by digital penetration and the second by cunnilingus) or that the applicant had tried to have penile-vaginal sexual intercourse with the complainant. The issues were confined to whether the prosecution had proved that the complainant did not consent on each of these occasions and that the applicant either knew that the complainant was not consenting or was reckless as to whether she was consenting or had no reasonable grounds for believing that she was consenting.

The trial

The Crown case

The background to the alleged offending

6. At the time of the alleged offending, the complainant, who was 22 years old, worked full-time for a retailer in its Sydney store, having worked there since May 2020. On Wednesday 10 February 2021, the complainant had a rostered day off but she met Cassandra, the store’s merchandiser, and Jameely, the manager, at the store at 5pm after work to celebrate Cassandra’s 28^th birthday and the fact that she was changing jobs. At that time, the complainant was living in Newtown.

7. It was an agreed fact that shortly after 5pm, the three women went to Fratelli Fresh in Westfield, Sydney. The complainant’s evidence was that they drank a jug of pink gin fizz, which amounted to about a glass each. It was an agreed fact that at about 6pm, the three women caught a taxi to the Lord Roberts Hotel in Darlinghurst. The complainant’s evidence was that another of Cassandra’s friends, Erin, was already in the taxi. The complainant said that Jameely left soon afterwards, leaving the complainant, Cassandra and several of Cassandra’s friends, many of whom she had not met before. While she was at the Lord Roberts Hotel, the complainant drank one vodka soda and a soda water. It was an agreed fact that at about 7.30pm, the complainant, Cassandra and a few of Cassandra’s friends left the Lord Roberts Hotel and went to Bar Reggio, which was nearby, for dinner. The complainant estimated that there were between 12 and 15 people in the party. The complainant shared a bottle of pinot gris with Cassandra. She recalled that they stayed at Bar Reggio until about 9.30pm.

8. The complainant said that most of Cassandra’s friends had to go home at that point but because the complainant did not want to let Cassandra down, she stayed out with her. The complainant, Cassandra and two of Cassandra’s friends, Peta and Mia, walked to a nearby bar, East Village. It was an agreed fact that the four women arrived at the bar at 10.05pm and sat at a table at the rear of the bar. The complainant recalled that Cassandra bought a round of espresso martinis.

9. It was also agreed that at 10.13pm, the complainant left the table to go to the bathroom. During the time that the complainant was in the bathroom, a male, Aaron, approached and joined the table of females. The applicant, who was then 30 years old, subsequently approached and joined the table. At 10.15pm, the complainant returned to the table and met the applicant for the first time. At 10.20pm another male, Jeeves, joined the table. Cassandra gave evidence that she also did not know any of these males prior to that evening.

10. The complainant recalled that when she came back to the table, she sat on a bench next to Cassandra as one of the males had taken her seat. She said to Cassandra, “Oh, there’s guys here,” to which Cassandra responded, “Yeah, they said they’re here for you. They spotted you when you walked in, and they wanted to come over and speak to you.” The complainant said that she did not know any of the males. The complainant said that the conversation was “more flowing” between Aaron, the applicant, Peta and Mia and that she herself did not “add much to the conversation at all.” When East Village was either shutting or it was getting late, they decided to go somewhere else.

11. CCTV footage of the group (lasting 51 minutes and 18 seconds) taken at the East Village was shown to the jury and tendered as an exhibit in the Crown case. I confirm that I have viewed that footage.

12. It was an agreed fact that the group (the complainant, Peta, Mia, Aaron, Jeeves and the applicant) left East Village at 10.50pm. As they walked, the applicant and Jeeves each told the complainant that she was his “favourite girl in the group”, to which she replied, “Sure I am, cause I’m the only single girl here.” The complainant said that she could tell from “their body language and their vibe that once [she] kind of confirmed that [she] wasn’t in a relationship, that particularly [the applicant] certainly seemed more interested in me …”.

13. It was an agreed fact that they arrived at the Lord Roberts at 10.57pm. The complainant recalled that the males offered to buy the drinks. The complainant recalled standing at the bar beside Aaron, when he mentioned that he was 34 years old. She responded that he was 12 years older than she was. She realised that she was substantially younger than anyone else who was there that night. The complainant recalled that the applicant told her that he was 30 but she did not recall mentioning how old she was to the applicant. One of the males bought her a gin and tonic, which was what she had requested.

14. When the complainant returned to the table, the applicant expressed a desire to use cocaine as well and suggested that they “should go do some”. The complainant said, “No, I’m fine.” She explained in her evidence:

“I had a big weekend the weekend before. It was a Wednesday night. I wasn’t going out looking to have a big night. And I only knew Cass, so I wasn’t, kind of, looking to get really inebriated. So, I didn’t want to do any more from [the applicant] while we were out, for sure. So I kept saying no.”

15. The complainant went to the bathroom again. As she came out of the cubicle, she saw Aaron there, which surprised her. She also saw Mia and Peta coming out of a cubicle. Aaron asked her whether she wanted a “bum[p]”, which she understood to be a reference to cocaine. She agreed to have “[j]ust a small one”, which she inhaled from the tip of a key. The complainant observed Peta, Mia and Aaron also having cocaine but she thought that they had inhaled more than she did.

16. The complainant said that, at that time:

“I was feeling a bit anxious. My heart rate was up. Doing that added to the fact that I was around people that I didn’t know. I didn’t feel, like, super secure. So that added to the reason why I wasn’t really looking to do any more and make myself feel worse.”

17. CCTV footage of the group (lasting 18 minutes and 5 seconds) taken at the Lord Roberts Hotel was shown to the jury and tendered as an exhibit in the Crown case. I confirm that I have viewed that footage. The footage finished at 11.15pm. As far as the complainant recalled they did not stay much longer than that.

18. It was an agreed fact that, at about midnight on 11 February 2021, the same group travelled in two separate Ubers to Cassandra’s apartment in Edgecliff. The complainant recalled that she travelled with Cassandra, Jeeves and the applicant whereas Peta, Mia and Aaron travelled in the second Uber. They arrived at about the same time. Cassandra’s evidence was that, at some point in the evening, she had told the complainant that she could stay the night at her place because her flat-mate was away.

19. The complainant gave the following evidence of what occurred after their arrival at Cassandra’s apartment:

“We walked upstairs to Cass’ apartment and had a couple of bottles of wine between the group. Early - kind of around this time, the boys knocked over a glass and smashed which I had to - I cleaned up for Cass, and then we were kind of sat on the couch and around the lounge room, continuing drinking. Cass was dancing around, enjoying her birthday, and I was sat on the couch between [the applicant] and Jeeves. [The applicant] kept asking me if I wanted to do more cocaine. At this point, they had brought it out on a plate and I did one small line of cocaine and no more. He kept asking me after that, but I said, ‘no,’ and I said to give Cass some instead, which she did have some.”

20. The complainant recalled that she was sitting on a couch with Jeeves on one side and the applicant on the other. They continued to drink and there was also some dancing, mainly by Cassandra. At about 12.28am the complainant took a video of the dancing which she posted to her Instagram account. The video was tendered and its parts played to the jury. The complainant posted a caption on the video, “I literally know one person here.”

21. It was an agreed fact that at about 1am, Peta, Mia and Jeeves left the apartment. The complainant described what occurred after they left as follows:

“… we continued kind of - as we were, drinking and just hanging out for some time longer. Yeah, Cass was definitely like, really intoxicated. So, she was kind of like, falling asleep and stuff in her chair and then coming back to and so she said, ‘I’m gonna go to bed, but please stay, please, I want you guys to stay. Don’t go. Like, you can stay in … my housemate’s room and on the couch, please stay the night.’ So, following that, she kind of just went straight into her bedroom and went to bed.”

22. It was an agreed fact that at about 3am, Cassandra went to sleep in her bedroom, at which time the complainant, the applicant and Aaron were still in the apartment. Cassandra’s evidence about the sleeping arrangements was as follows:

“Q. Was there any discussion with anyone in the apartment at the time you were going to bed?

A. Yes, so when I went to bed, it was – I believe it was only [the complainant] and two boys left at this stage. I went to bed and I – I had already told her this, but I said, ‘[My flat-mate] is not here. You’re welcome to stay in my bed, but you boys really need to go home when you – like, wrap this up’. And at that time, I went to bed, and that was it.”

23. In cross-examination, Cassandra denied that she ever indicated to the males that they could stay the night.

24. In cross-examination, the complainant agreed that she told police that when she went back to Cassandra’s unit, a couple of bottles of rosé had been consumed. The complainant accepted that while she may have used the word “couple”, she did not necessarily mean two. When asked as to the amount she had drunk while at Cassandra’s place, the complainant said:

“I would say it’s highly likely that I had multiple of glasses over the three hours that we were there drinking.”

25. In cross-examination, the complainant said that she had brought a bottle of wine with her that was consumed at Cassandra’s unit that evening and that Cassandra had had wine at her place as well. The complainant explained that she had brought the bottle to “the restaurant” (Bar Reggio) but that because she and Cassandra had shared the bottle which Cassandra had brought with her, they did not open the bottle which the complainant had brought with her from her own home until they got to Cassandra’s place. The complainant accepted that she had not told police about this bottle of wine but explained that she “didn’t think [of] it as an important detail”. It was not put to her that her evidence about having brought a bottle of wine with her to Cassandra’s unit was false.

26. The complainant said that Aaron suggested that he would stay on the couch and that the applicant and the complainant could go into the second bedroom. This made the complainant feel uncomfortable. She said in evidence:

“The thoughts running through my head was if I went into the bedroom there would be kind of things that I didn’t want to do, and Aaron could kind of see the discomfort on my face, I believe, and started asking if I was okay.”

27. The complainant responded that she would be “okay if [she could] go in there and just go to sleep,” to which Aaron responded, “Yeah, of course.” The complainant said in evidence:

“And so I stood up and I still kind of felt a bit uneasy, and so I said to both of the guys, ‘Aaron and [the applicant], I’m telling you both so it’s really clear, I just broke up with my boyfriend two weeks ago. I don’t want to do anything. Like, if I go in the bedroom, I want to go in there to sleep. Like, I don’t want to have sex with anybody.’ And Aaron seemed kind of a bit taken aback and was, like, ‘Yeah, of course. Like, of course,’ and [the applicant] was like, ‘Yeah,’ like a bit more kind of blasé about it. But I felt making my boundaries clear to do people [sic] a bit more comfortable to go in the room, and so I then walked into the bedroom and lay down on the one side of the bed on top of the covers with my clothes on.”

28. At that time, the applicant was standing at the entry of the doorway to the bedroom, the lights in which were on.

29. The following were agreed facts. While the complainant and the applicant were in the second bedroom, the applicant digitally penetrated the complainant’s vagina (the physical act which comprised count 1), performed cunnilingus on the complainant (the physical act which comprised count 2) and attempted to have penile/vaginal sexual intercourse with her (the physical act which comprised count 3). As referred to above, the only issues for trial were whether the complainant had consented and the applicant’s state of mind as to any such consent.

Count 1: digital penetration

30. The complainant’s evidence about what occurred with respect to count 1 was as follows:

“I went on to the far side and lay on top of the covers with my clothes on, and then he said to me, ‘You can get in bed, like, you can take - like, we’re just going to go to sleep,’ something to that effect. And so, like, I got off the bed and I took my pants off and I left my underwear and my top on, and I - I left my top on because I don’t have a bra on, and then got back into that far side of the bed under the covers. And he, I believe, like, undressed to his underwear, as well, and turned the lights off, and then got into the bed, as well.

And then pretty straight away, like, pulled me over to him and started kissing me, which I wasn’t, like, super interested in but didn’t really mind, and then, quite quickly after that, put his left hand down in my underwear and tried to finger me, which I immediately started saying, like, ‘No. Stop. I told you, made it plain I don’t want to have sex. Like, stop,’ and grabbed his hand with - his wrist with my hand, trying to pull it out, but I couldn’t. And he continued for quite some time while I kept saying, ‘Like, come on, I told you I didn’t want to do anything. Stop.’ And he said, like, ‘I just want to do this for you. I want to go down on you. Please, please.’ And I said, ‘No, I told you we’re not having sex, like." And he said, "We don’t have to have sex. I just want to do this for you,’ while still fingering me as I was trying to hold his hand out.

I then turned onto my right side with my back to him to try and put some space between us and make it less easy for him to be reaching in there. But he continued as I still kept saying, like, ‘Come on, I told you. You - stop. I - I don’t want to have sex. Please stop. No,’ and trying to pull his hands out. Eventually, he moved his other arm around my body so he had his left hand in my underwear and his right hand kind of wrapped from underneath around me. I was eventually able to pull his hands out from my vagina and onto my breasts.”

31. The complainant described the digital penetration as “painful” and “hurting … the whole time while [she] was trying to get him to stop.” Initially they were facing each other but, in order to get away and get him to stop, she rolled over because she could not remove his hand. However, when she rolled over the applicant put his hand back in her underwear and continued to “finger” her. The complainant’s evidence was:

“[The applicant] just kept saying, ‘Like, I just want to do this for you. Like, we don’t have to have sex. I just want to do this for you and - and make you feel good,’ while I was saying, ‘No,’ and ‘Stop.’”

32. The complainant believed that, at that point, she “passed out from the effects of alcohol”. She confirmed in cross-examination that she had told police:

“I remember that after I had moved [the applicant’s] hands on to my breasts, I believe I had passed out due to the alcohol.”

33. In cross-examination, the complainant accepted that, in her first statement made on 12 February 2021, she had said, “I think [the applicant] thought I was enjoying myself.” She explained that, when reading through that statement, she had asked “her lawyers” (the Crown Prosecutor and the solicitor from the Office of the Director of Public Prosecutions) if she could provide more detail to clarify that statement. In her evidence, she said that she told police:

“he might have felt like that because I stopped saying no, because I passed out from that alcohol.”

34. In cross-examination, the complainant accepted that when the applicant started to kiss her, she kissed him back. It was put to her that the kissing was mutual, to which she responded:

“Yeah, I wasn’t super…(not transcribable)…I guess it was mutual.”

35. In cross-examination, the complainant explained why she had moved his hands to her breasts:

“I moved his hands to my breasts because I could not get him to stop fingering me otherwise, by saying ‘stop’ and ‘no’ repeatedly, that is why I chose to do that.”

36. The complainant’s statement that the applicant might have thought that she was enjoying herself was explored further in cross-examination as follows:

“Q. And when you said, ‘I think [the applicant] thought I was enjoying myself’, what you were saying is, enjoying what he was doing, what was going on between the two of you?

A. I was saying no repeatedly to stop fingering me and trying to pull his hands out. I don’t know how it would be unclear that I wasn’t enjoying that. I stopped saying that once I was finally able to remove his hands and put them on to my breasts and that is what I was referencing is perhaps at that point he thought that.

Q. Did you think that [the applicant] thought you were enjoying it because you’d been kissing him back?

A. Before I’d started saying ‘No,’ I was kissing him at the start of this whole encounter before I started saying ‘No,’ and that I didn’t want to do anything else. “

Q. During the time when [the applicant] had his hand around your genital area, were you moving your body in any way to suggest that you were enjoying it?

A. No.

Q. Were you at that point making any sound to suggest that you were enjoying it?

A. No, I was saying ‘No’, and ‘Stop.’”

Count 2: cunnilingus

37. The complainant’s evidence as to count 2 was as follows:

“The next thing kind of that I remember waking up and he was down at the bottom of the bed and I believe had removed my underwear, and had his hands holding my legs open and was performing oral sex on me, and it took me a moment to kind of come to and realise where I was and what was happening, and once I did, I immediately tried to push him off, his head off, with both my hands, and kind of like pushed - moved to the left, see if I can get out that way, move to the right, but he was holding on to me, like, my legs with his hands, and holding onto me with his mouth, and I was saying, ‘No. I told you. Like, I don’t mind you touching me up top, but this is really hurting. Please stop.’ Yeah. So, he didn’t stop. Yeah, as I said, he just kind of latched onto me. I continued to say, ‘No. Like I told you, I didn’t want to do - have any sex or do anything like this.’ And he just continued …”

38. The complainant said that she tried to push the applicant’s head away but he just held onto her thighs more tightly with both of his hands. She felt as if his mouth was “suctioned onto [her] vagina … so that [she] couldn’t push his head off it”. The complainant’s vagina and legs felt painful. She was trying to “wriggle out either side, but [she] couldn’t … push him off”.

39. The complainant confirmed in cross-examination that the removal of her underwear and the oral intercourse occurred while she was passed out. She regained consciousness while the applicant was still performing oral intercourse on her.

Count 3: attempted penile-vaginal intercourse

40. As to count 3, the complainant gave the following evidence:

“He eventually moved up on top of me, his full body weight, and tried to kiss me, but I turned my head to the side, and then at this point tried to insert his penis into my vagina. And throughout this time he said something very similar to, ‘I just can’t resist. Your body’s so hot.’ I remember him saying that. And he tried for some time to insert his penis into me, but he couldn’t get hard. And then I tried to move out from side to side, but his whole body weight was on me and I wasn’t able to get out. … The next thing I think I said is, ‘If you can’t get hard, can we please at least just stop?’ And he continued trying for a little while after that, and then finally he was like, “Huh, okay, yeah. We can try again later. Like I guess we can just go to sleep now.” And got off of me back to his left side.”

41. The complainant explained that she asked him to stop because that was what she wanted and because he was not listening to her when she said “no” or that she did not want to. When the applicant got off the complainant’s body, it “took [her] a second just to process what had happened and that [she] could go home.” She said in evidence:

“[I] got up off the bed and told him like I’m going to go home, and I walked around from that side of the bed to kind of the main area of the room where my pants were and grabbed them, and kind of using my phone booked an Uber. And in this time, he kept grabbing for me pulling me back on the bed and saying like, ‘Don’t go, I’ve got work in a couple of hours. It’s fine we can just go to sleep now.’ Like kept trying to kiss me and pull me back on and I just kept pulling away and saying, ‘No, I need to go home. I need to go home.’ Using my torch to try and look for my underwear because he had been the one to take it off, so I didn’t know where it was and you know I was almost going to leave them but then I eventually found them in the bed, and put them on while he still continuing like, ‘It’s fine, just stay. We can just go to sleep,’ until I got dressed.

And then lastly, I said, ‘I know you want me to stay but I’m telling you I want to go home, are you not listening to me?’ And he kind of was a bit like, “Oh, okay, yeah. Do you want me to walk you out?” And I said, ‘No,’ and left the room. And turned left to the lounge room and my shoes were just by the couch where Aaron was asleep. And used my other torch to grab them and said like, ‘Sorry, if I kind of woke you up a little bit.’ Grabbed shoes and left the apartment and ran downstairs and my Uber was there, and I got inside.”

42. It was an agreed fact that at about 3.45am, the complainant left the apartment in an Uber and travelled to her home in Newtown.

Evidence of complaint

Complaint made to Cassandra

43. The complainant’s evidence was that while she was in the Uber, she sent a WhatsApp message to Cassandra. Her exchanges with Cassandra over WhatsApp on Thursday 11 February 2021 were tendered and are set out as follows:

Time	Complainant	Cassandra
3.49am	Thank you for a great night darling just went home. Love you lots see you soon
8.41am	I think I’m still drunk When did I go to bed
9.02am	Hahaha I think we all went to bed around 3 Don’t worry darling just keep bendering it’s your last day
9.06am	Omg haha
9.23am	We’re [sic] you ok with those boys there? We’re [sic] they still there when you woke up?
9.27am	Yeah no one was here Thank god Yeah they were fine
9.33am	Good I’m glad Weren’t fine to me lol that’s why I had to leave I’ll tell you when I get in
Wtf
9.37am	Just bull shit told him the wholeeeee time I didn’t want to have sex with him but didn’t listen at all
11.26am	Which one? Are you ok They did not seem Like that
11.51am	I’m worried about you I hope it’s not something I did. Reach out if you need. I’m here
11.51am	Oh my god not you at all I’m so sorry it’s impacted your last day and birthday
12.04pm	I just really wasn’t keen at all and he wouldn’t listen or stop. Nothing you could have known or done. I’ll be ok. So sorry I’m missing your last day. Love you lots [heart emoji]
1.29pm	Omggg please don’t apologise
1.30pm	I’m so sorry this happened. I really hope your [sic] ok. And always here for you xx
3.14pm	Thank you darling. I’ll be ok I think it was all just a bit fresh this morning. Can’t believe I won’t have you at work Tomorrow [crying emoji] we’ll have to catch up before you start at [your new job]
3.30pm	Yeah I understand and plus are you feeling hungover I am stiII fucked Hahaha I know I am going to miss you everyday

44. The complainant was asked about the difference between the message she sent at 3.49am to Cassandra and the messages she sent to her friends Georgie and Bella at the same time (set out below). She answered:

“I didn’t want to worry Cass and kind of take away from her birthday. That’s kind of where my head was at, at the time. That was why I didn’t kind of, like, alert her, and I sounded okay in my initial message. I obviously wanted to let her know that I’d gone home, but I - I didn’t want to freak her out or - I wasn’t concerned that they were going to go into her bedroom and try and do something to her, so I - yeah, I just didn’t want to worry her as soon as she - or ruin her birthday.”

45. The complainant did not recall speaking with Cassandra on 11 February 2021. When she said, in her text at 9.33am, “I’ll tell you when I get in,” she was expecting to go to work that day and see Cassandra.

Complaint made to Bella

46. The complainant’s exchanges with her friend, Arabella (Bella) were also tendered. The previous week, Bella had moved back to her boyfriend’s mother’s residence after living with the complainant. Their texts on 11 February 2021 were, relevantly, as follows:

Time	Complainant	Bella
3.49am	If you can move back in rn [right now] greatly appreciated. Fucking hate boys Doesn’t matter how firm and clear you are they give no fucks So over it How fucking funny when they say they want to be your friend Hilarious Clearly not So over it
7.39am	What’s happened??
9am	Can I call you?
9.36	Audio call for 14 minutes.

47. The complainant gave evidence about her recollection of the 14-minute phone call she made to Bella. She said:

“I remember crying on the phone and explained to her, you know, that I’d been at Cass’s house and there’d been two guys, and I told both of them I didn’t want to do anything, so it was really clear and there was no confusion. And then still, you know, [the applicant] ignored me and ignored me saying ‘no’ and ‘stop’ multiple times. And she did say at one point in the phone call, ‘I think you’ve been raped,’ or something of - along those lines, which was quite, like, a bit of - hard to hear [in] reality. It seems..(not transcribable)..the situation. And then she offered to come over and kind of be with me.”

48. Bella’s evidence of her telephone conversation with the complainant was as follows:

“[The complainant] recounted what had happened the night before. She said, ‘I was … at a bar with Cass and I’d gone into the bathroom, and when I came back from the bathroom there was some boys sitting at our table. When - came back to the table, one of the boys had asked, ‘Who’s single?’ And I’ – [the complainant] - ‘said, ‘I am’’ - single. And then she said that they were talking, and then - or the group was talking. And they kicked on - or went on to Cass’s place for drinks. …

And [the complainant] had said, that’s when one of the boys brought out a bag of coke - or cocaine. And she says she did one line, but didn’t want to do more. And some of the boys were pressuring her, but she kept saying, “No, I don’t want to do any more”. That’s when, later, Cass - she says, Cass went to bed, because she was..(not transcribable)..and was tired. And [the complainant] said that she was - cause she was always going to stay the night - that’s when she said, ‘I said, ‘I’m going to go to bed’, or ‘I’m going to go’. One of the boys had said, ‘I’m going to crash here on the couch’. And she said - well, she was sleeping at - in the roommate’s room anyway. And one of the other boys then said, ‘Oh, I’m going to come - I’ll come in with you, and I’ll sleep on the bed with you’.

[The complainant] distinctively - well, I also remember from the conversation - distinctively, she said, ‘Fine. But we’re not having sex’. She entered - she said - I - she entered the room. This is when she was crying more, on the phone. She said that she laid on the bed, and one of the boys - or the boy, sorry - said, ‘Can take off your clothes and you’ll be more comfortable’. This is also when she was crying more on the phone about this point. She said she took off her clothes but left her undies on, and was lying on the bed with the boy. And - and that’s when he sort‑of made a move, and started trying to hold her. Then [the complainant] reiterated, you know, ‘We’re not having sex’. And he proceeded to - I believe - sort‑of finger her.

… [The complainant] said, ‘He started to finger me - so, put his hands in - down my undies. I kept saying ‘no’. Then - then he kept trying to put his - continue fingering me. Then he went down on me’. [The complainant] - I - distinctively said the words, ‘I wasn’t even enjoying it’. And I believe that’s when she said, on - to me on the phone - that he had said - sorry. Let me correct myself. That’s when I interrupted [the complainant] on the phone and said, ‘[The complainant’s name], this sounds like you’ve been raped’. Because of - and then she had said, ‘No, no, no. He didn’t actually have sex with me. He didn’t - he tried to put it in, but couldn’t get hard’. Then I replied, ‘Thank God’. Then she said, ‘He continued going down on me’, and said the words, ‘This is for your pleasure’.

That’s when [the complainant] told me she got very upset, pushed him, said ‘No, I’m leaving’, got her stuff and left. She said to me on the phone - at the front door, she was waiting for her Uber. He tried to give her a hug. Then she got in the car when the Uber arrived, and that’s when she says she sent me those - she sent me all those messages.”

49. Bella said in cross-examination that the complainant had not given her the impression that there was mutual kissing between herself and the applicant while they were in bed.

Complaint made to Georgie

50. The complainant’s text exchanges with another friend, Georgie, on 11 February 2011 were as follows:

Time	Complainant	Georgie
3.14am	Drugs?
Hahahahahaah a little Fucking hate boys Doesn’t matter how firm you are they fine no fucks That’s set me back about A month in my progress with men
6.36am	I’m so confused You did drugs but you hate boys
8.55am	…
The drugs are irrelevant yes I hate boys
What happened? You sound like you’re in a state

51. The complainant said that she had a similar conversation on the phone with Georgie to the one she had with Bella, the substance of which was that she was not interested in doing anything with anyone but that the applicant had ignored her wishes and fingered her and “went down on [her]”. Following this conversation, Georgie also went to the complainant’s house.

52. The three women (the complainant, Bella and Georgie) discussed what the complainant should do. Bella suggested that she should message the applicant on Instagram and tell him what he had done and that it was “really not okay”. However, they decided that this was not a good idea. The complainant also asked her friends if she should go to the police but they both discouraged her from doing that because of what they had seen in the media about it being a bad experience for victims.

51. Georgie gave evidence of her visit to the complainant on 11 February 2021. She found the complainant “lying on the couch with tears in her eyes”. Her recollection of what the complainant said was as follows:

“And Cass went to bed, and [the complainant] was remaining on the couch with the two boys. One of the boys - her and one of the boys went up and to the bedroom. I can’t remember how she explained that they went there. But she had said to both of the boys, before she left to the bedroom, that she didn’t want to have sex with either of them and didn’t want to do anything. And again reiterated that, she told me, when she left the room with one of them to go to the bedroom. Then they went to the bedroom, and she got into bed - and I believe she took off her pants - perhaps her top as well, I can’t remember. And they got into the bed, and she said that they were just lying there, kissing on and off, but that she was quite drunk. And he then started to perform oral sex on her, which is when she said that she felt the most drunk, laying down there on the bed. And she said ‘Stop’, and she repeatedly tried to push his head away, and he wouldn’t - he didn’t stop until, eventually, she sort of came to a little bit and pushed him off, and got out of the bed and said that she was going to call an Uber and go home.”

54. Georgie was cross-examined about her police statement which was made on 30 March 2021. She agreed that the complainant had told her that the applicant acted “shocked” when she told him that she was getting an Uber home and that the complainant had said, “It was like the guy didn’t fully comprehend what was going on”. Georgie accepted that she had included in her statement that the complainant had told her that the applicant had offered to walk her to the street to get her Uber.

Complaint to Jameely

55. When the complainant told her friends that she was supposed to start working at midday, they both advised her to take the afternoon off. The complainant tried to call her manager, Jameely, without success, as the internet reception inside her house in Newtown was poor. Instead, she exchanged text messages with her manager as follows:

Time	Complainant	Jameely
Hey couldn’t hear you, you ok
11.17am	We had these guys back at Cass’ house last night that we met. Was just Cass and I and them at the end and then Cass went to bed but told us all to stay
Yeah she told me lol You ok?
11.18am	One went on the couch and one went to bed in josies bed and told me sleep in there. I was really not keen on doing anything at all an[d] I told both of them I’m going in there just to sleep I’m not havin Sex and they said yeah of course but as soon as I got in the bed he was all over me and I kept telling him to stop and said no I didn’t want to but he wouldn’t get off or stop even though I said it so many times
11.19am	Finally after like 30 mins I got him off and went home But I’m just really upset
Omg what?? Omg are you ok?????
11.20am	Not really I have Bella and Georgie here I’ve been crying quite a bit
Omg
Like I fully was trying to push him off and saying stop and he wouldn’t It is possible if I come in a little late sorry I just need to get my self together
Don’t come in Let me call you in a bit

56. The complainant’s friends also advised the complainant to tell her mother but the complainant did not do so immediately as she thought that it would be hard for her mother to know about it. Her friends put her to bed and left.

Oral complaint made to Jameely and Cassandra

57. The complainant also spoke to Jameely over the phone. The complainant’s evidence was that Jameely was “quite adamant” that she should go to the police because it “would be the right thing to do” as it was a crime.

58. At the time of this phone call, Cassandra was also at work with Jameely and could also hear the complainant who was “beside herself, sobbing, very, very upset”. At some point, Jameely put the complainant on speaker phone so that they could discuss what she should do. Cassandra’s recollection of the phone call was as follows:

“I remember her saying the guy had - I remember her saying she’d gone – ‘I had gone into bed, and one of the guys left’. And she went into the room and somebody - the one that was left followed her into the room, and she said ‘I’ – ‘I’ – ‘I’ve told you, I don’t want anything. I want to go to bed’. He goes ‘That’s okay, I just want to go to sleep too. I’ll just lie next to you’. And then she said she recalled sort of waking up, and he was going down on her, and she was saying no. And that’s what I remember of the conversation.”

59. Cassandra confirmed in cross-examination that she did not recall the complainant telling her anything about her kissing the applicant when they were in bed.

60. Jameely gave evidence of what the complainant had told her over the phone as follows:

“… she had explained that she was sexually assaulted by a man that they had met that evening. She shared over the phone that she was at Cass’ house, and it happened in her flatmate’s bedroom in Edgecliff. … She mentioned that she had asked this man to not sexually assault her. She vocalised on numerous occasions, and it didn’t stop the incident.”

61. Jameely gave evidence that the complainant told her:

“I told them that I don’t – I told – I told the man that I do not want to have sex. They reassured me that – they said that, you know, they wouldn’t. As soon as I went into the bedroom, he was all over me”.

62. Jameely said that during the call, the complainant was “hysterically crying”.

63. Jameely was cross-examined about the police statement which she signed on 13 October 2021. She agreed that she had told police that the complainant had told her that she was “heavily influenced by alcohol” and that she had been “fed narcotics by this man”. Jameely accepted that the complainant had not told her, or given her any impression, that there was mutual kissing between her and the applicant.

Complaint to the complainant’s mother

64. The complainant’s mother lived in Melbourne. The complainant called her at about 3pm on 11 February 2021 to tell her what had happened. According to the complainant, her mother told her not to go to the police because she “thought it would make [her] feel worse”.

65. The complainant’s mother gave evidence of the phone call which she received from the complainant on the afternoon of 11 February 2021. She said:

“[The complainant] sounded traumatised. I immediately thought she’d been in an accident or something terrible had happened to her. She was shattered. She spoke very softly. She kept crying and she told me what had happened to her.”

66. The complainant’s mother related what her daughter told her in the phone call as follows:

“She’d already told me previously that she was going out with her colleague, Cass, for Cass’s birthday, and she told me in that conversation that she had gone out with Cass for the birthday, and there were a lot of Cass’s friends but she only knew Cass. At one point she went to the ladies and when she came back three unknown men had joined the table and her - Cass, her friend, had said to her, ‘Oh, they’ve come over because they think you’re so beautiful.’

That made [the complainant] feel really uncomfortable and she didn’t - she said to me that she didn’t really engage with them. She said the unknown men stuck around with the group that she was with and came back to Cass’s place with everybody else.

Everybody else duly left and Cass was pretty inebriated cause it was her birthday celebrations and she went to bed. [The complainant] had made a pre-arrangement with Cass that she would stay over because Cass’s housemate had - was away. And she said to these unknown men that she would be going to bed and she wouldn’t be having sex with any of them if that’s what they were waiting for. She went to bed in the spare room and fell asleep. She said she woke up with one of the men in bed with her trying to put his fingers in her vagina. She realised that she was also inebriated and she found it hard to get away from him.

She told him to stop and she kept trying to get away from him in the bed. She said that he wouldn’t stop and he kept trying to perform oral sex on her. To distract him, she took his hands and put them on her breasts. She told me that she passed out or she fell back asleep and when she woke up the man was on top of her trying to put his penis in her vagina. She kept telling him to stop and get away from her and eventually she was able to get out from underneath him and get out of the bed. She got dressed, called an Uber and got herself home. She said that when she was in the Uber, she messaged her two friends, Bella and Georgie. She didn’t ring them because it was late. It was after midnight and everybody had work the next day.

She messaged them about what had happened. She got home, into her room, took her clothes off, got into bed and cried herself to sleep. The next morning, both the girls messaged her, Georgie and Bella, as soon as they read their messages, and Bella came over and stayed with her. [The complainant] couldn’t go to work. She stayed in bed all day. She wasn’t going to tell me because I was going to an auction at 4 o’clock on the Thursday to hopefully buy a house, but both the girls encouraged her to tell me because they know how close we are and they would know how devastated I would be to find that out at a later time.”

67. The complainant’s mother was cross-examined about her evidence of the phone call, including by reference to her police statement dated 7 October 2021. She agreed that her daughter told her that the two men said that they would sleep on the lounge and that she went into the second bedroom and went to sleep but was woken by one of the males trying to put his fingers in her vagina. The complainant’s mother agreed that the complainant had not told her that she and the applicant were kissing when they were in bed.

The police investigation

68. It was an agreed fact that at about 11am on 12 February 2021, the complainant attended Newtown Police Station to report the alleged offences. She explained in her evidence that she “was hoping maybe they could go and speak to [the applicant] and let him know, like, you can’t do that to people”.

69. It was an agreed fact that police subsequently seized the clothing the complainant had worn between 10 and 11 February 2021 which included a pair of white underpants with blood stains in the crotch area.

70. At about 1.30pm on 12 February 2021, the complainant undertook a sexual assault investigation kit (SAIK) at the Royal Prince Alfred Hospital sexual assault centre. The genital examination revealed a small superficial patch type abrasion of the fossa navicularis with no fresh blood present. The fossa navicularis is directly in front of the opening of the vaginal canal. The expert certificate of Dr Mark Pfeiffer relating to that examination was tendered. Dr Pfeiffer noted the abrasion which he considered to be consistent with penetration of the area of the vagina with a penis, digit or other object. On the basis that the complainant said that she did not menstruate, he considered the most likely source of the bleeding to be the documented abrasion.

71. At around 3pm that day, Detective Senior Constable Sarah Urtinod obtained a statement from the complainant. Three further statements were obtained from her on 13 June, 8 July and 9 September 2022.

The arrest of the applicant

72. On 26 February 2021, the applicant was arrested at Waverley Police Station. After being cautioned, the applicant exercised his right to silence and declined an invitation to be interviewed by police.

The applicant’s prior good character

73. The officer in charge confirmed via the police system that the applicant had not been the subject of any allegation of sexual offending, with the exception of the allegations that were the subject of the trial. The applicant had not been the subject of any allegation of criminal conduct or criminal charge other than a single charge of possessing a prohibited drug. The applicant had no prior convictions.

Other evidence

74. Senior Constable Zeff Daniel gave evidence that he had contacted Jeeves, who had ultimately indicated that he did not wish to provide a statement. He also contacted Mia, whom he believed was living in the United States. He did not receive a response to his email to her. Another potential witness, Julia, confirmed that she did not wish to provide a statement. Aaron was unable to be located at the time.

75. In cross-examination, Senior Constable Daniel confirmed that the internal police system, the Computerised Operational Policing System (COPS), recorded an entry which had been inserted between 4pm and 7.22pm, after the complainant’s statement had been taken, which read:

“Post statement voiced concerns of, a, not wanting to get POI [person of interest] into that much trouble and, b, worried that she might not have been clear enough regarding no consent.”

The defence case

Character witnesses

76. The applicant called a character witness, Warren Treloar, who knew the applicant through work. He described the applicant as a “sensitive young man for his age” who was “very sympathetic … towards all people … in life, regardless of their sex, colour, demeanour”. Mr Treloar’s reaction to learning of the allegations was “one of disbelief”. He was unaware of the applicant’s cocaine use.

77. Another character witness, Marie-Louise Singh, described the applicant as “Considerate. Kind. Funny. Trustworthy. Very loyal. Yeah, just very nice, reliable person, a friend to have”.

78. Michael Lucic gave evidence that he had known the applicant for about 15 years. They worked, went motor bike riding and exercised together. He described him as a “caring guy” who was “respectful” around women. He said that, to his observation, the applicant became “probably more caring” when intoxicated with alcohol and cocaine.

The applicant’s evidence

79. The applicant gave evidence of the lead-up to being at Cassandra’s place, which is unnecessary to recount in light of the agreed facts as set out earlier. He said that he and the complainant were kissing passionately on the couch at Cassandra’s place with their arms around each other. He said that, before she went to bed, Cassandra told them that they were welcome to stay the night. He made his way into the second bedroom and asked Aaron, who was going to sleep on the couch, to set the alarm for 6am because they both had to work the next day.

80. He said that as the complainant came to the spare room, she told him and Aaron that she was not going to sleep with anyone, to which the applicant responded that it was fine with him. According to the applicant, the complainant then stripped down to her “undies and top” and got into bed. He and the complainant then started kissing. He was unsure who initiated it. He started to “finger” her vagina and she started “moaning with pleasure, and was a willing participant”. She did not say anything otherwise and did not try to move his hands away. This continued for between two and five minutes after which he moved his mouth down her body. She lifted her hips up and he removed her underpants and performed oral sex on her. She was moving side to side and there was “a little bit of moaning”. At no time did she tell him to stop or did she pass out. Afterwards, he lay on his back and the complainant performed oral sex on him. Although he was “moaning of enjoyment”, his penis did not become erect.

81. According to the applicant, the complainant then suggested that they have sex, which he understood to mean penile-vaginal sex, to which he responded, “We can give it a go, but I don’t like my chances, because I’ve done coke, and sometimes [when] I do coke, I can’t get an erection”. For a while he got on top of her and tried to insert his penis into her vagina but as he could not get an erection, he stopped and apologised. The complainant then announced that she was going to get an Uber and go home. He suggested that they stay there and leave in the morning but she insisted on going home. Before she left, he said, “It was nice to meet you”. He denied that the complainant had ever told him to stop or tried to push him away. He also denied that she was unconscious or asleep for any of the acts.

82. When he woke in the morning, he realised that he was going to be late for work so he woke Aaron. He ordered an Uber and went back to his place in Paddington. When he was contacted a couple of weeks later by police, he felt “[c]omplete shock … sick in the stomach … a shell of myself … didn’t understand what was going on …[c]omplete confusion … disbelief …”. In cross-examination, the prosecutor put the Crown case to the applicant, which he denied in so far as it related to whether the complainant consented and his mental state as to her consent.

Aaron’s evidence

83. Aaron gave character evidence for the applicant, describing him as “a lovely guy” who “treats [women] with respect”.

84. Aaron said that he recalled that the complainant and the applicant were kissing on the couch at Cassandra’s place and that she was “laying in his lap basically”. Aaron said that he recalled the complainant saying, before she went into the second bedroom, “I’m not sleeping with any of you”.

85. In the morning, the applicant woke Aaron up and they caught an Uber to the applicant’s place at Paddington. The applicant then drove Aaron to his place at Curl Curl so that he could pick up his vehicle to go to work. They did not speak about what had happened between the applicant and the complainant that night. On 21 October 2021, Aaron learned of the charges against the applicant. The applicant asked him if he would be prepared to talk to the applicant’s lawyers but said that he did not have to. Aaron was cross-examined extensively by the Crown.

Expert evidence of Dr Michael Robertson

86. The defence called Dr Michael Robertson, expert toxicologist, to give evidence about the effects of alcohol and cocaine, based on assumptions put to him about consumption. In particular he was asked about the prospect of the complainant passing out for a short period due to the effects of alcohol in the following exchange:

“Q. Is part of what you’re saying that if the complainant did pass out or was unconscious due to the alcohol that you would expect that she would not have the memory of events afterwards, and she would not be able to have performed the actions that she performed afterwards, whether it’s getting dressed, ordering the Uber, sending messages and so forth.

A. Yeah, almost certainly if someone had that level of intoxication to have been unconscious, they would not have been able to do those things for a number of hours after that loss of consciousness.

Q. Just to be clear, if the complainant did pass out or become unconscious due to alcohol, you would’ve expected that passing out or period of unconsciousness to have been longer than a period of say less than 10 minutes?

A. Yes, absolutely.

Q. Now, are you able to give any opinion as to whether or not the complainant just fell asleep, like in the ordinary sense of falling asleep?

A. Well, I can’t determine if she did or didn’t, but she may have given the time of the evening and – and – and the fact that alcohol was in her system, that can cause tiredness, so it’s certainly possible that someone would fall asleep.

Q. If the evidence that you’ve considered in the course of formulating your opinion consistent at all with the complainant passing out or becoming unconscious due to alcohol?

A. No, there’s nothing in the provided materials that I have considered or seen that would be consistent with alcohol causing a loss of consciousness.”

87. In cross-examination, Dr Robertson accepted that the expression “passed out due to the effects of alcohol” was consistent with falling asleep or becoming unconscious due to fatigue associated with drinking alcohol.

The summing up

88. No objection was taken to the summing up, including the directions given, either in the course of the trial or in this Court. The trial judge directed the jury as to the elements of each offence, namely that:

1. the applicant had sexual intercourse with the complainant;

2. without her consent; and

3. knowing that she did not consent.

89. The trial judge directed the jury as to proof of the third element in the following terms:

“The law says that the Crown will have proved the accused knew the complainant did not consent to sexual intercourse if: (a) the accused knew the complainant did not consent; or (b) the accused was reckless as to whether the complainant consented because he realised there was a possibility that she did not consent; or (c) the accused was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead not caring or considering it was irrelevant whether she consented; or (d) the accused may have actually believed the complainant consented but had no reasonable grounds for that belief.”

90. I understood it to be accepted that this direction was correct and that the Crown put its case on the third element of the offence (that the applicant knew that the complainant did not consent) on each of the available bases in s 61HE(3) of the Crimes Act which then relevantly provided:

“(3)    Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim … knows that the alleged victim does not consent to the sexual activity if—

(a)     the person knows that the alleged victim does not consent to the sexual activity, or

(b)     the person is reckless as to whether the alleged victim consents to the sexual activity, or

(c)     the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.”

91. The trial judge directed the jury that they were to ignore the self-intoxication of the applicant and determine his state of mind by considering what his state of mind would have been but for his intoxication. I understood it to be accepted that this direction complied with s 61HE(4)(b) of the Crimes Act.

92. The trial judge also gave a so-called Liberato direction (after Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66) in accordance with Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [11]-[12] (Kiefel CJ, Bell, Gageler and Gordon JJ) as follows:

“But in the trial before you, he chose to give evidence, and the accused relies upon his evidence. It is important that you understand the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt you may have at the end of your deliberations. The following conclusions follow from that: first, if you believe the accused’s evidence, then you must acquit him; second, if you find difficulty in accepting the accused’s evidence but think it might be true, then you must acquit him; third, if you do not believe the accused’s evidence, then you must put it to one side and the question will then remain: has the Crown upon the basis of evidence that you do accept prove the accused’s guilt beyond reasonable doubt. Just to restate that last point: if you do not accept his evidence, that does not mean that you automatically conclude that he is guilty; you then go back to square one and look at the evidence in the trial and see whether the Crown has proved his guilt - that is, the essential elements - beyond reasonable doubt.”

Consideration

The relevant principles

93. The relevant principles relating to an unreasonable verdict ground were stated in M v The Queen. The question “which the court must ask itself 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” (Mason CJ, Deane, Dawson and Toohey JJ at 493). This question “is one of fact which the court must decide by making its own independent assessment of the evidence” (at 492). Although “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced”, the court may conclude that no miscarriage of justice has occurred if “a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by [the appellate court]” (at 494). Further, at 494, the plurality said:

“[w]here 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.”

94. The credibility of a complainant may, as here, be significant in a criminal trial. A verdict of guilty may be reasonable even if the complainant’s evidence is not corroborated: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [53] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The primary function of determining guilt or innocence has been entrusted to the jury as the tribunal of fact (The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ)). For this reason, it will not generally be appropriate for this Court to review pre-recorded or recorded evidence to form its own view of the credibility of particular witnesses on the basis of their presentation: Pell at [36]-[38]. This Court must proceed on the basis that the complainant’s evidence was accepted by the jury as credible and reliable: Pell at [39].

95. The extent to which this Court is entitled to disbelieve a witness (such as the complainant in the present case) whose evidence a jury must have accepted, at least in so far as it established the elements of the offence or offences of which he or she has been convicted, is constrained. In Z (a pseudonym) v R [2022] NSWCCA 8, this Court (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing) said at [29]:

“… 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.”

The applicant’s submissions

96. Mr Game SC, who appeared with Ms Cook SC for the applicant, submitted that the applicant’s evidence was consistent, cogent and believable and that there was nothing inherently implausible or “problematic” about it. They also relied on the following aspects of the complainant’s evidence:

“a.    The complainant and applicant, by choice, got into bed together.

b.    Before getting into bed, and despite having only met that night, they had (at a minimum) been particularly friendly with one another.

c.    When the complainant got into bed with the applicant, she was dressed in only a top (no bra) and white lace underwear.

d.    There was mutual kissing (whilst in the state of semi-undress described above) soon after the two were in the bed together.

e.    The complainant moved the applicant’s hand(s) from her genital area and placed them on her breast(s).

f.    The complainant told police that she thought that the applicant thought that she was enjoying herself (oral intercourse) and that he said things like ‘I just want to do it for you’ and ‘You’re so hot, I can’t resist’.

g.    That the applicant could not get ‘hard’ (an erection).

h.    The attempted penile/ vaginal intercourse (and the assault) stopped when the complainant said ‘If you can’t get hard, can we please at least just stop?’.

i.    The complainant said that afterwards the applicant was trying to kiss and grab her and that he offered to walk her out to the Uber.

j.    The complainant told friends that the applicant looked ‘dismayed’, ‘shocked’ and like ‘he didn’t fully comprehend what was going on’ when she left the apartment and that he acted like what occurred had been a ‘mutual decision’.

k.    A police COPS event document records that the complainant ‘voiced concerns of (a) not wanting to get [the applicant] in that much trouble and (b) worried that she may not have been clear enough regarding no consent’.”

97. Mr Game also relied on the evidence of Dr Robertson that being unconscious from the effects of alcohol was inconsistent with the complainant’s evidence.

98. Mr Game submitted that it was significant that the complainant had omitted from her evidence of complaint that she and the applicant had been kissing when they were both in bed in the spare room.

Whether the ground has been made out

99. Before turning to the ground more generally, I propose to address each of the matters raised by Mr Game set out in the extract above.

a.   The complainant and the applicant being in the same bed together

100. The complainant entered the bedroom with the intention of spending the night there because she had previously been invited by Cassandra to do so. That the applicant also entered the bedroom with a view to sleeping there was something which, as far as the complainant was aware, arose spontaneously after Cassandra had announced her intention of going to bed. The complainant’s intention, when entering the bedroom, was to sleep. On the case for the Crown and the applicant, the complainant announced that she did not want to have sex with anyone. It was open to the jury to infer that the applicant’s intention when he entered the bedroom was to have sex with the complainant. The complainant initially lay, fully clothed on one side of the bed. She removed her trousers and got under the covers only when the applicant assured her that they would just be sleeping. The jury was in a position to appreciate the context in which the applicant and the complainant came to be in the same bed.

b.   Apparent friendliness between the complainant and the applicant

101. Mr Game relied on what he contended to be the “friendliness” between the complainant and the applicant as depicted on the CCTV footage taken at the various venues. The “friendliness” between the complainant and the applicant, to the extent exhibited on the CCTV footage, was a matter for the jury to assess. But even assuming it to have been the case, the jury was entitled to regard any enjoyment which the complainant demonstrated at being in the applicant’s company (which may have been the result of politeness or a wish to make sure that Cassandra was enjoying the evening) as a far cry from consent to sexual intercourse. Thus, there was no necessary inconsistency between the complainant’s friendliness towards the applicant in a social setting and her objection to sexual intercourse with him.

102. Mr Game also relied on the applicant’s evidence that he and the complainant had been kissing passionately on the couch in Cassandra’s living room before they went to the second bedroom. This evidence was uncorroborated. Neither the complainant nor Cassandra had a memory of this. Aaron’s evidence was that he recalled the applicant kissing a woman on the couch (who could have been Cassandra). The significance of the applicant’s evidence would, in any event, appear to be relatively slight as it occurred prior to the complainant’s announcement that she did not want to have sex with anyone and also prior to the applicant kissing her when they were in the second bedroom, which she accepted had occurred.

c.   The complainant’s clothing

103. The circumstance that the complainant was not wearing a bra was the consequence of a decision the complainant had made before leaving home to meet Cassandra and Jameely at 5pm for a drink, well prior to meeting the applicant at the East Village pub. Further, it was open to the jury to accept the complainant’s evidence (extracted above) that, at the outset, she was lying fully clothed on top of the bed in the second bedroom when the applicant told her that she could get into bed because they were “just going to go to sleep”. Thus, it was open to the jury to regard the complainant’s removal of her trousers as being the result of the applicant’s (disingenuous) assurance that they were just going to sleep. It was also open to the jury to infer that at least a reason why the complainant kept her top on was because she was conscious of the fact that she was not wearing a bra, she did not want to have sexual intercourse and wanted neither to indicate to the applicant that she wanted sexual intercourse nor to arouse his sexual interest.

104. These matters are relevant not only to the second element of the offence (whether the Crown had proved that the complainant did not consent) but also to the third element (the applicant’s state of mind about whether the complainant was consenting). It was open to the jury to find that the applicant knew, as a result of what is set out above, that the complainant had only removed her trousers and got under the covers because he had assured her that they were just going to sleep (and not because she wanted to have sexual intercourse with him).

d.   The relevance of kissing

105. It was open to the jury to consider that the complainant was prepared to allow the applicant to kiss her because it did not constitute a particular violation but that this did not mean that she consented to sexual intercourse, particularly in light of her protestations (by saying, “stop” and “no” and trying to move his hand and his head) to the acts which comprised sexual intercourse. Further, the complainant’s evidence about whether the kissing was “mutual” was somewhat ambivalent. She said, “And then pretty straight away, like, pulled me over to him and started kissing me, which I wasn’t, like, super interested in but didn’t really mind …”; and, “Yeah, I wasn’t super [interested] (not transcribable) … I guess it was mutual” (emphasis added).

e.   The complainant’s act of moving the applicant’s hand from her genital area to her breasts

106. It was open to the jury to consider that the complainant’s endeavour to remove the applicant’s hand from her genital area and place it on her breasts was an attempt to stop the sexual intercourse in circumstances where the applicant was larger and stronger than she was; she was in a position of substantial vulnerability and was subject to his control; and, as she explained in her evidence, all of her other attempts to get him to stop (comprising both verbal and physical resistance) had been ineffective. The jury was entitled to consider this act to be a product of the complainant’s vulnerability rather than as amounting to any consensual engagement in what was occurring. Indeed, the jury may have understood the complainant’s act of moving his hand as constituting the lesser of two evils: sexual touching of her breast being a lesser violation than digital penetration of her vagina.

f.   The complainant’s evidence of her impression that the applicant thought she was enjoying herself

107. Mr Game submitted that, on the basis of the complainant’s evidence, there was, at the very least, a “massive misapprehension” on the part of the applicant as to “what was going on”. Mr Game relied on the complainant’s evidence that her impression was that the applicant thought that she was enjoying herself.

108. When addressing this argument, it is important to recall that the jury was entitled to find that the third element of the offence had been made out if the jury considered that the applicant believed that the complainant was consenting to sexual intercourse but that the Crown had proved beyond reasonable doubt that he had no reasonable grounds for that belief. In this context, the complainant’s speculation that the applicant seemed to think that she was enjoying oral intercourse and that he was doing her a favour by performing oral intercourse on her (notwithstanding her telling him to stop and trying to move his head away from between her thighs) and his focus on himself (saying, “you’re so hot, I can’t resist”) is not inconsistent with the Crown case. Rather, it was open to the jury to consider that the applicant’s appreciation of what was happening was entirely divorced from reality and paid no regard to the complainant’s objections. Further, the jury was also entitled to consider that, although the applicant did not know that the complainant was not consenting, he would have known but for his self-induced intoxication.

109. The Crown case, which it was open to the jury to accept, was that the complainant did what she could to communicate her lack of consent to the applicant by words and acts which included the following:

1. her announcement before entering the bedroom that she did not want to have sex with anyone and just wanted to sleep;

2. her positioning herself, fully clothed, on the side of the bed;

3. her only being prepared to remove her trousers after the applicant assured her that they were only going to sleep;

4. her telling the applicant to stop when he put his finger in her genital area and inside her vagina and her attempts to move his finger away from that area, eventually by placing his hand or hands on her breasts;

5. the complainant telling the applicant to stop and trying move away from the applicant’s mouth when he was engaging in oral intercourse, as well as trying to move his head with her hands;

6. the complainant complaining of pain when he engaged in acts of intercourse with her; and

7. the complainant requesting the applicant to stop attempting penile-vaginal intercourse when, notwithstanding his attempts to obtain an erection, his penis remained flaccid.

110. As the Crown submitted, the applicant is not the first sexual offender to impose his will on a victim, believing that he can overcome a victim’s resistance by persistence. Further, his desire for sexual gratification would appear to have been so much at the forefront of whatever drove him that the jury was entitled to find that he was both deaf and blind to the complainant’s objections, remonstrances and pleas and even may have believed, contrary to the fact and contrary to any reasonable view of the circumstances, that she was actually enjoying the sexual intercourse. But this does not gainsay the reasonableness of the verdicts of guilty, in circumstances where knowledge for the purposes of the third element could be established by proof that he had no reasonable grounds for believing that the complainant consented to the sexual intercourse and the effects of his self-induced intoxication were to be disregarded.

g. and h.   The applicant’s inability to obtain a full erection and the complainant’s suggestion that they stop

111. It is difficult to see how the applicant’s inability to obtain an erection could assist this ground. By the time the applicant attempted penile vaginal intercourse with the complainant, he had already performed digital and oral sexual intercourse with her. It was open to the jury to consider that the complainant’s request that if he could not get “hard”, they could “please at least just stop” reflected her vulnerability and lack of power in the circumstances. It was also open to the jury to consider that the complainant was trying various ways of communicating her lack of consent to the applicant which would not provoke him to further acts and which would incline him to let her go (she was, at this point, trapped beneath him). As set out above, the complainant explained in her evidence that she had said this because she had already told him “no” and asked him to stop and he had not listened to her.

112. Mr Game submitted that it was potentially implicit in the complainant’s request that they stop since he could not get hard that, if he had been able to obtain an erection, she would have wanted to have penile-vaginal intercourse with him. This does not follow. Her request must be seen in the context of all the other evidence, including her requests that he stop and her complaint that he was hurting her (which was supported by the finding of bruising on examination). I reject Mr Game’s submission.

i.   The applicant’s attempt to kiss the complainant and his offer to take her out to the Uber

113. It was open to the jury to find that this evidence was not inconsistent with her lack of consent or his knowledge of it. Indeed, the jury may have considered that it showed that he appreciated that he had done the wrong thing and was trying to make it better. The evidence is also consistent with his having an irrational belief (that is, a belief not based on reasonable grounds) that she had consented; his being reckless as to whether she consented because he realised there was a possibility that she did not consent; or his not even thinking about whether she consented but going ahead anyway, not caring or considering her consent to be irrelevant.

j.   The complainant’s evidence about the applicant’s apparent lack of comprehension

114. It can be accepted that the perpetrators of crimes of sexual assault, particularly in social settings such as in the present case, may have little appreciation of the effects of non-consensual sexual intercourse on their victims and may fail to understand conduct, such as the complainant’s act of calling an Uber and not wanting him to walk out with her. The complainant’s view of the applicant’s reaction may have been correct (“that he didn’t fully comprehend what was going on”). However, the jury was entitled to find that it did not follow from that reaction that the Crown had not proved the elements (and in particular the third element) beyond reasonable doubt.

k.   The complainant’s concern, expressed to police, that she may not have been clear enough regarding consent

115. It was plain from the text of the COPS report that the complainant made the statement attributed to her in that report after she had made her first signed statement to police reporting what had occurred. It can be inferred from the absence of cross-examination of the complainant about her first signed statement to police that her evidence in chief was consistent with what she had put in that statement.

116. It was for the jury and not the complainant to determine whether what she had done to indicate her lack of consent was sufficient to establish that the applicant knew that she did not consent. It is not uncommon for victims to blame themselves, particularly when they are victims of sexual offences in a society where “rape myths” that the victim must have done something to “ask for it” have not been completely eradicated. Further, the complainant’s expressed concern could also be understood as applying to her future conduct, so that she could work out a way of protecting herself from sexual assaults in the future.

117. In addition, the complainant’s principal concern when reporting the matter to police appears to have been that the applicant not do the same thing to anyone else. Thus, she wanted him to know that it was “not okay”. She did not envisage, when she reported the matter to police, that it would end up in a trial and that, if convicted, he would have to serve a term of imprisonment. The attitude of the victim to the court’s processes is, generally, irrelevant. In cases of sexual assault, the impression can be given that the victim is the driver because, as here, she was the only witness to the offences and therefore there would have been no prosecution case without her. However, the interest which is protected by the criminal law is largely the public interest, although the vindication of the rights of victims and the recognition of the harm done to them is also of significance.

118. I do not regard any of the matters which Mr Game has raised in the list extracted above, taken individually or in combination, to cast doubt on the reasonableness of the verdict.

Further matters

The pre-arranged sleeping arrangements

119. The jury was obliged to come to their verdicts on the basis of all of the evidence at the trial (which I have endeavoured to summarise above). That evidence included that Cassandra had, earlier in the evening, invited the complainant to stay the night at her place because her flat-mate was away. It was open to the jury to infer that the complainant remained with Cassandra rather than going home earlier because she knew that she could stay at Cassandra’s place in her own bedroom. Further, the jury might also have concluded that once the group had arrived at Cassandra’s place, the complainant was waiting for the males to leave so that she could go to bed. It was open to the jury to regard her Instagram post to her friends in which she said that she only knew one person there as evidence of her at least partial disengagement from the scene.

The complainant’s attempt to draw boundaries as to what was permitted

120. Further, the complainant’s announcement, which was audible to Aaron and the applicant, that she did not want to sleep with anyone could have been regarded by the jury as an attempt on her part to delineate boundaries before she entered the bedroom, with an intention of going to sleep. The jury might have considered her announcement to be a protective measure which she took because she did not want her entry into the bedroom to be misconstrued by the two males (who may not have been privy to the fact that the complainant was staying overnight in the second bedroom by prior invitation from Cassandra). Indeed, she said as much when she gave the evidence set out above about the “thoughts running through [her] head” that if she “went into the bedroom there would be kind of things that [she] didn’t want to do.”

121. That the complainant was prepared to remove her trousers (in preparation for sleep, the applicant having assured her that he understood her position about not wanting to have sex) and allow the applicant to kiss her was not inconsistent with her prior announcement of what she did not want to do. As referred to above, it was also consistent with the complainant having been lured into a false sense of security by the applicant, who told her that they were just going to sleep.

122. However, importantly, it was open to the jury to reason that whatever ambiguity there may have been in the complainant’s conduct (viewed from the applicant’s point of view), there was no ambiguity in what she said and did, which was consistent throughout: she did not want to have sexual intercourse that night. She repeatedly told him to stop when he initiated sexual intercourse of three types and throughout. This is not a case where a complainant has initially consented to, say, penile vaginal intercourse, but does not consent to a different type of intercourse (typically anal intercourse). It was open to the jury to accept the complainant’s evidence that she did not at any time consent to sexual intercourse of any variety and steadfastly and consistently expressed her opposition to it by words and conduct throughout.

123. The jury must, by its verdicts, be taken to have accepted the complainant’s evidence (to the requisite standard) that she communicated to the applicant that she did not consent to sexual intercourse (by digital penetration, cunnilingus or attempted penile-vaginal intercourse) in several ways: by her announcement that she did not want it, by saying “no” and “stop” when the applicant put his finger in her vagina and by trying, unsuccessfully, to move his hand and, subsequently, his head away from her genital area and by asking him to stop trying to have penile-vaginal sex with her. The jury must also, by its verdicts, be taken to have rejected as not possibly true that part of the applicant’s evidence which was inconsistent with the complainant’s evidence about what occurred and that she did not consent.

124. The jury may also have regarded it as significant that the applicant gave evidence that the complainant gave him oral sex for several minutes during which he was unable to become erect and she then asked for penile-vaginal sexual intercourse. The jury can be taken to have rejected his evidence as being not possibly true. Indeed, the jury may have regarded this evidence as amounting to a deliberate lie, having regard to the complainant’s evidence (which the jury accepted) about what occurred.

The complainant’s evidence that she passed out from alcohol

125. Mr Game submitted that the complainant’s evidence that she “passed out” from alcohol could not be accepted in light of Dr Robertson’s evidence that her capacity to recall detail of the events of the evening was inconsistent with her having passed out due to alcohol. He submitted that this Court ought consider her evidence to be unreliable because of this inconsistency. I reject this submission. It was open to the jury to appreciate that the complainant’s view that she had passed out due to alcohol was not the opinion of an expert toxicologist but rather a lay person’s understanding that she had lost consciousness at a particular point and then regained it. As referred to above, Dr Robertson accepted that it was possible that the complainant had simply fallen asleep at about 3am from the combined effects of fatigue, the drug she had taken and the alcohol that she had drunk (which would also have been capable of making her tired) and that she had woken up again while the applicant was performing oral intercourse on her. It was open to the jury to regard the complainant’s evidence to that effect as credible and reliable. Her evidence that he may have thought she was consenting while she was unconscious (and was therefore not resisting) tended to support her credibility.

Alleged inconsistencies in the complaint evidence

126. Mr Game also alleged that inconsistencies in the complaint evidence ought to have caused the jury to have a reasonable doubt as to the complainant’s evidence. The ill-founded premise of Mr Game’s submission was that a complaint to a colleague, a friend or a parent ought be treated as if it is a comprehensive report as to what has happened as if it is a police statement or evidence in chief. The jury was entitled to have regard to the context and purpose of each communication as well as the timing of the complaint itself and when the recipient of the complaint was first asked to recall its contents when adjudging its consistency with the complainant’s evidence at the trial. The purposes of the complaints included:

1. to obtain solace or advice (to Bella and Georgie);

2. to communicate why she could not come to work that day (to Jameely and Cassandra);

3. to convey important information to someone to whom she was very close (to the complainant’s mother); or

4. to make sure that the applicant knew that what he had done was “not okay” (to the police).

127. I have set out the evidence of complaint in some detail above. It demonstrates overall consistency but some variation. For example, the complainant told Georgie that the applicant had kissed her in bed but did not tell others of this detail. It was open to the jury to consider that the omission of this detail was insignificant and did not bear on her credibility. It was also open to the jury to accept the complainant’s evidence that she did not particularly mind the applicant kissing her although she was not “super-interested” and that it was not necessarily worthy of report, whereas the conduct which comprised the three counts was a significant violation, which the complainant wanted to report to those who were important to her.

128. The complainant initially refrained from telling Cassandra what had happened because she was concerned not to spoil Cassandra’s birthday celebration or her last day at work but subsequently told her what had occurred.

129. Mr Game particularly relied on the complainant’s complaint to her mother in which her mother recalled her daughter saying that she fell asleep and one of the two men who said that they would sleep on the lounge came into the bedroom where she was sleeping, woke her up and sexually assaulted her. The complainant’s mother’s recollection must be seen in the context that the complainant’s mother was first asked by police on 7 October 2021 to recall what her daughter told her on 11 February 2021 in a 15-minute conversation during which the complainant’s mother had not taken notes. In these circumstances, the jury was entitled to conclude that the complainant’s mother’s recollection of the conversation was, at best, incomplete and that the complainant’s report to police on 12 February 2021 was likely to be considerably more accurate. Further, the jury was entitled to regard it as unremarkable that the complainant’s recollection of what she told people about what had happened was relatively sketchy compared with her recollection of the events themselves.

130. Jameely’s evidence of her impression that the complainant was “pressured” into going into the second bedroom was also relied upon by Mr Game as constituting an inconsistent statement by the complainant. Jameely clarified her evidence that she understood the complainant had been “pressured” by saying that the complainant had not been physically forced into the bedroom and that the man had “fed [her] narcotics”. The complainant’s evidence was, as set out above, that she had agreed to take cocaine. Jameely was first asked to recall the complaint when she was first interviewed by police in July 2021, which led to a statement dated 13 October 2021. Jameely’s “interest” in receiving the information was that, as her manager, she was authorised to give the complainant permission not to come into work that day. Further, Jameely was also concerned to urge the complainant to report the matter to the police. Once Jameely understood that the complainant had been sexually assaulted, it could be inferred that she did not concern herself with the details, or with recalling the precise terms of the complaint, since she regarded the matter as one for the police because, as the complainant recalled Jameely saying, “it was a crime”.

131. Any differences between the versions of the complaints made by the complainant (other than those comprised by text messages) can be explained by differing recollections of the complainant and those she told, as well as the possibility that she told slightly different things to different people. The question of what to make of differences in complaint evidence was pre-eminently one for the jury as the tribunal of fact, which enjoyed the advantage of seeing and hearing the witnesses give evidence. It was open to the jury to regard the evidence of complaint, including in text messages sent from the Uber when the complainant was on her way home, as significantly corroborating her evidence of what occurred. Further, it is also significant that the complainant gave a detailed statement to the police less than two days after the incident.

The alleged plausibility of the applicant’s evidence

132. I reject Mr Game’s submission that the verdict was unreasonable because there was nothing “inherently implausible” or “problematic” about the applicant’s evidence. These adjectives are not helpful. The resolution of the issues whether the complainant consented to sexual intercourse and, if not, the applicant’s mental state as to her consent did not depend on inherent plausibility or otherwise. Their resolution depends on the whole of the evidence to which the jury was obliged to have regard. The jury has indicated by their verdicts that they accepted the complainant’s evidence as to the contested elements of the offences and rejected the applicant’s evidence as to these matters (and were therefore entitled to put it aside, in accordance with the Liberato direction). Whether or not the applicant’s evidence may have been “inherently plausible” or not “problematic” when read in isolation, the jury was entitled to reject the applicant’s evidence as not possibly true, when viewed in the context of the evidence as a whole. Further, for the reasons given above, I consider that it was open to the jury to find that his evidence of the complainant fellating him and moaning with pleasure when he had sexual intercourse with her was false. There were also inconsistencies in his evidence. He initially denied knowing that the complainant had had a small amount of cocaine in the Lord Roberts Hotel or that he and the complainant had discussed cocaine at that hotel. Subsequently, he accepted that he offered the complainant cocaine twice – in the Lord Roberts Hotel – and at Cassandra’s apartment and that she had, on both occasions, accepted.

133. If the jury rejected the applicant’s evidence, then, in accordance with the Liberato direction, they were entitled to put the applicant’s evidence to one side and consider the complainant’s evidence, together with all of the other evidence, when determining whether the Crown had proved its case on each of the three counts beyond reasonable doubt.

The complainant’s evidence that she had brought a bottle of rosé from home

134. Mr Game submitted that the complainant’s evidence that she had brought a bottle of wine with her to Cassandra’s place was “demonstrably untrue” and contended that this false evidence undermined the complainant’s credibility in a significant way. He accepted that it had not been put to the complainant that her evidence was false.

135. The principal difficulty with this submission is that it was not put to the complainant. Accordingly, she was denied the opportunity of answering it. However, as the Crown submitted, the CCTV footage from East Village showed a large shopping bag, which was sufficiently capacious to accommodate a bottle of wine, to which the complainant had access from time to time. In these circumstances, it was open to the jury to accept the complainant’s evidence that she brought a bottle of rosé to Cassandra’s unit and that she did not mention it to police because she did not consider it to be important.

The applicant’s evidence of good character

136. Mr Game submitted that the character evidence adduced on behalf of the applicant was such as to support the hypothesis consistent with innocence that the applicant was under a “massive misapprehension” as to what was happening. For the reasons given above, the Crown case could accommodate the applicant being under a “massive misapprehension” if the jury could reasonably be satisfied that he had no reasonable grounds for believing that the complainant consented or if the jury considered that, but for his self-induced intoxication, he would not have been under any misapprehension about her lack of consent.

137. However, in any event, the character evidence was not such as to support the argument put by Mr Game. While Mr Treloar was impressed with the applicant, he did not indicate in his evidence that he was aware that the applicant was a user of cocaine. Nor had he ever seen the applicant under the influence of drugs or alcohol. Aaron’s evidence was generally unimpressive. Mr Lucic’s evidence that the applicant became “probably more caring” when under the influence of alcohol and cocaine must be seen in the context that it was unlikely that Mr Lucic had seen the applicant in a private sexual encounter while under the influence.

138. The weight to be given to character evidence was a matter for the jury. It is evident from the jury’s verdicts that they appreciated that otherwise good men (who make good friends and reliable employees, who are “caring” to their friends when intoxicated, who offer to walk a woman to an Uber in the early hours of the morning and who drive a friend from Paddington to Curl Curl so that he can pick up his vehicle to go to work, as occurred with Aaron after the alleged offending conduct) commit sexual crimes, as this Court is only too aware.

Conclusion

139. Each of the matters raised by Mr Game on appeal, with the exception of the complainant’s evidence that she had brought a bottle of rosé to Cassandra’s unit (which was raised for the first time on appeal), was raised in closing address by Ms Cook who appeared on behalf of the applicant at trial. The jury can be taken to have considered those submissions and rejected them on the basis of their appreciation of the whole of the evidence.

139. None of the arguments advanced on behalf of the applicant by Mr Game causes me to doubt his guilt of any of the counts. It was open to the jury to return verdicts of guilty in respect of the three counts charged. Having reviewed all of the evidence in the trial, I am not persuaded that any of the verdicts are unreasonable.

140. As I have given detailed consideration to the ground of appeal, I propose that leave to appeal be granted but that the appeal be dismissed.

Proposed orders

142. For the reasons given above, I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

143. BUTTON J: I agree with Adamson JA.

144. Further to her Honour’s analysis, I regard the observed injury to the genitals of the complainant as a significant inculpatory factor, in the context of the other evidence in the trial.

145. On my own assessment of all of the evidence, the verdicts of guilty were well open to the jury.

146. R A HULME AJ: I have read the judgment of Adamson JA in draft and have also had the advantage of reviewing the record of trial for myself. I am in complete agreement with her Honour’s analysis and conclusions. I agree with the orders proposed.

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Decision last updated: 22 November 2023