Sawyer v The Queen

Case •

[2020] NSWCCA 179

•

31 July 2020

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Sawyer v R [2020] NSWCCA 179
Hearing dates: 26 June 2020
Decision date: 31 July 2020
Before: Hoeben CJ at CL at [1];
Fagan J at [75];
Cavanagh J at [81]
Decision:

(1)   Leave to appeal against conviction is granted.

(2)   The appeal against conviction is dismissed.

Catchwords:

CRIMINAL LAW – conviction appeal – one count of sexual intercourse without consent – New Year’s Eve party – heavy alcohol consumption and cocaine use – whether complainant consented the only issue – Crown case that complainant asleep when intercourse commenced – defence case that complainant was an active and willing participant – gaps in complainant’s memory as a result of alcohol and cocaine ingestion – whether open to jury to find beyond reasonable doubt that there was lack of consent – appeal dismissed.

Legislation Cited:

Crimes Act 1900 (NSW) – ss 61HE(5)(b), 61I

Cases Cited:

Fennell v The Queen (2019) 93 ALJR 1219; [2019] HCA 37

M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Pell v The Queen [2020] HCA 12

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

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

Category:Principal judgment
Parties: Matthew Sawyer – Applicant
Regina – Respondent Crown
Representation:

Counsel:
S Littlemore QC – Applicant
E Wilkins SC – Respondent Crown

Solicitors:
Aulich – Applicant
Solicitor for Public Prosecutions – Respondent Crown
File Number(s): 2018/000578
Publication restriction: Statutory non-publication order re: identity of complainant
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
18 October 2019
Before:
O’Rourke SC DCJ
File Number(s):
2018/000578

JUDGMENT

  1. HOEBEN CJ at CL:

Procedural background

The applicant was arraigned in the New South Wales District Court on 6 August 2019 and pleaded not guilty to an indictment containing one count of sexual intercourse without consent in contravention of s 61I of the Crimes Act 1900 (NSW).

  1. The applicant was tried by a jury in a trial lasting seven days, commencing 6 August 2019. The trial was presided over by Judge G O’Rourke SC. On 14 August 2019, the jury returned a verdict of guilty.

  2. On 18 October 2019, her Honour sentenced the applicant to imprisonment with a non-parole period of 18 months, to commence 13 August 2019 and expire on 12 February 2021, with a balance of term of 18 months expiring on 12 August 2022.

  3. The applicant seeks leave to appeal against his conviction on the following grounds:

  1. The jury’s verdict was unreasonable and cannot be supported by the evidence.

  2. The unreasonableness of the verdict includes:

  • That the evidence taken as a whole was incapable of excluding a reasonable doubt as to the applicant’s guilt.

  • That the prosecution case was entirely dependant upon the credibility and reliability of the evidence of the complainant who had no recollection of exculpatory matters asserted by the applicant relating to the issue of consent and did not challenge them.

  • The evidence taken in its entirety ought to have caused the jury acting rationally to entertain a reasonable doubt as to the applicant’s guilt by reason of the complainant’s inability to recall and therefore to challenge matters testified to by the applicant that were inconsistent with acceptance of the complainant’s account.

  • There was ample material warranting criticism of the complainant’s evidence such that the prosecution failed to negative the reasonable possibility that the complainant consented to sexual intercourse with the applicant or that he honestly believed that she consented.

Factual background and evidence at trial

  1. It was the Crown case that the offence occurred on 1 January 2018 in circumstances where the complainant and her partner (now husband), Mr T, were hosting a small New Year’s Eve party at their home, which was an apartment in Surry Hills. The party commenced in mid-afternoon on 31 December 2017 and concluded when Mr T and one of the guests (Mr Graham) took his dogs for a walk the following morning at about 6.15am.

  2. The applicant and his partner (now husband), Mr Petro, were neighbours of the complainant and Mr T and had attended the party. At the time the party effectively ended, the complainant was in bed in her apartment, having consumed a large quantity of alcohol and having taken some cocaine on three or possibly four occasions at the party. The cocaine was supplied during the party by the applicant and Mr Petro. The purity and quantity of cocaine consumed by the complainant was not the subject of evidence. It was the Crown case that Mr T had assisted her to bed and assisted her to undress before he took the dogs for a walk. He left her naked but covered by a sheet and duvet. The complainant and the applicant were the only two people left in the apartment at the time Mr T and Mr Graham left to walk the dogs.

  3. At trial, the following admissions were made by the applicant.

  1. In or around 2016, Mr Petro and the applicant formed a close friendship with the complainant and Mr T.

  2. At all material times, the applicant lived with Mr Petro in Surry Hills in a unit next door to the complainant and her husband’s unit.

  3. On 31 December 2017, Mr Petro and the applicant attended a New Year’s Eve party with others at the complainant’s unit.

  4. Mr Phillip Graham, Mr Dean Fox, Ms Erin Rugg and Mr Daniel McGorry attended the New Year’s Eve party.

  5. At around 7.30pm Mr Petro and the applicant left the New Year’s Eve party and attended another function at Watsons Bay.

  6. In the early morning of 1 January 2018, Mr Petro and the applicant returned to the New Year’s Eve party at the complainant’s unit.

  7. At about 6.15am, Mr T in company with Mr Graham, departed the unit saying they were going to take the dogs for a walk.

  8. While Mr T and Mr Graham were absent from the unit, the applicant engaged in sexual intercourse with the complainant.

  9. After engaging in sexual intercourse with the complainant, the applicant returned to his unit.

  10. At about 7.50am, Mr Petro and the applicant attended the complainant’s unit and had a conversation with Mr T and Mr Graham.

  11. At around 1.15pm, members of the NSW Police Force attended the applicant’s unit and seized items of clothing which were on the floor next to the bed. Those items of clothing were unwashed.

  1. It was the Crown case that the complainant was heavily intoxicated by the time she went to bed shortly after sunrise. The applicant had also been drinking alcohol for a prolonged period and had taken cocaine. There was uncontested evidence that he still wished the party to continue at the time Mr T was preparing to take his dogs for a walk.

  2. The complainant’s evidence was that the last thing she remembered was feeling very tired and falling asleep on the couch at the party shortly after sunrise. There was evidence showing sunrise on 1 January 2018 had occurred at 5.48am. The next thing she remembered was waking up to the applicant having penetrated her vagina with his penis, at first thinking it was her partner. She then heard the applicant say either “I’m about to come” or “I need to come”. She said “What the fuck” and pushed the applicant away.

  3. The complainant saw that he was wearing a t-shirt and jeans pushed down to below his penis. He said “I’ve got to go” or “I need to go”. In cross-examination, the complainant agreed that after she said, “What the fuck”, the applicant said the same thing and that they both spoke those words in a surprised way. The complainant was naked when she woke up. She jumped up and ran into her ensuite bathroom at which time she heard the door closing and assumed that the applicant had left.

  4. She then telephoned Mr T in a distraught state and asked him to come home. Mr T’s evidence was that he received this call at 7.09am and that the complainant sounded “extremely distressed and scared”. In the telephone conversation, she told him something terrible had happened and that he should come home. He got home to find the complainant undressed. She told him what had occurred and that she had not consented to having sex with the applicant. After an unsuccessful attempt by Mr T to speak to the applicant by banging on his apartment door, the applicant and Mr Petro came to the complainant’s unit soon afterwards. The applicant admitted having sex with the complainant but said, (according to Mr T) in a very sheepish manner and with no eye contact, that it was consensual. Thereafter, with the consent of the complainant, Mr T called the police at about 7.55am. The police responded not long afterwards. The complainant had a medical examination. No blood sample was taken to check her blood alcohol level.

  5. It was the defence case and the applicant gave evidence that the complainant had initiated the sex between them. He said that he had gone into the bedroom to find her wearing a green floral top and that he lay on the bed next to her while they discussed the party. He said that she initiated kissing him, rubbing the outside of his jeans and “grinding” on the side of his body. She then pulled him on top of her and they started having sex until he said “I’m going to come” and she said “What the fuck”. He then said “What the fuck” and she told him he had to leave. It was the applicant’s evidence that he questioned why he had to leave.

  6. The complainant denied in cross-examination that there was any questioning by the applicant who simply said “I’ve got to go”. In the course of cross-examination, the complainant was told by the trial judge that if she had no memory of matters put to her, she should not deny them, but say she did not recall. This was because the complainant said she did not recall any of the events as alleged by the applicant, up to the time she awoke to find the applicant’s penis in her vagina. It was Mr T’s evidence that she had to be assisted to walk to bed because she was unable to walk by herself. He gave evidence that she did not respond to him in the bedroom when he spoke to her. She said “err”.

  7. The complainant did not recall being affectionate to the applicant on the evening of the party and kissing him on the side of the neck. The complainant remembered dancing with the applicant at the party but did not remember them touching each other’s body while dancing or rubbing her body against his. She did not remember squatting while dancing so that her head was about level with his crotch. She denied that it was possible that this had happened and she did not remember it.

  8. The complainant agreed that she was surprised that she was still awake when the sun was coming up. She did not know if she was alert. She agreed that when Daniel McGorry left the party, he was exhibiting signs of being heavily intoxicated. She agreed that when the applicant came back to the party, he did not appear to be much different to how he was before he left. The complainant remembered that Mr Petro left the party at about 3am because he had work to do the next day.

  9. The complainant’s evidence of the offending was as follows:

“Q. And what do you recall happening next?
A. What I noticed next, which is what I remember is I started to notice the light of the morning, the dawn coming and the reason I remember that is it was very rare for me to stay up that late and so I mentioned at the time; wow, I can't believe that I've made it to this time of the evening where I'm starting to see daylight so that was what I remember happening next.

Q. What did you next when you started to see that daylight?
A. Well right at that point where I did say, wow I can't believe I've made it to this point, I then felt very tired and I remember thinking, maybe I should just have a little rest on the couch, because we were in the lounge room, so I went and laid down on the couch and fell asleep.

Q. What's the next thing you remember after lying down on the couch?
A. The next thing I remember is waking up to the feeling of penetration.

Q. And when you say penetration, can you explain what that feeling was?
A. It was a feeling of penetration in my vagina.

...

Q. Did you feel anything else at that time?
A. I felt a body on top of me.

Q. And what were you doing when you felt those two things at that stage? A. Well as I said, I was asleep and so I was, I had my eyes closed still and I was very disorientated trying to gather what was happening.

Q. And what position were you in?
A. I was lying on my back.

Q. And where were you?
A. I was in my bedroom.

Q. And can you continue as to what you remember happening from then?
A.  So, as I said, I had my eyes closed and I was trying to determine firstly, where I was, because the last thing I remember was being asleep on the couch.  And I felt you know my pillow and I kind of got a sense that I was in my bedroom.  And I, when I was feeling the penetration I thought it was quite unusual that my husband would want to have sex with me while I was asleep, so that was kind of my first thoughts when I was feeling this penetration.  And then I’m not sure exactly how much time passed and I heard a voice and the voice said and I’m not 100% sure exactly, but it was either “I’m about to come” or “I need to come” and that really for me was hang on this, this is not a voice that I'm recognising and so then it was kind of simultaneously I put my arms out and felt material, felt a t

‑shirt and I kind of opened my eyes at the same time and realised that it wasn't my husband.  The first thing I said, am I able to swear? ...

Q. Yes, you can say it yes?
A. So I said, “What the fuck” and I pushed the person off me and this person was Matthew Sawyer.

Q. And how were you feeling at that time when you opened your eyes and -
A. Very, very confused. Very, I couldn't quite understand what was happening.” (T.57.29-58.32)

  1. The complainant was cross-examined on that evidence:

“Q. I want to suggest to you that Matthew came to the door and said to you words like "Come on, it's too early to stop, I want to party." And I know you're not going to be able to necessarily respond but will you listen to the sequence. That he eventually got on the bed with you and the two of you cuddled. That you began to kiss his neck, not dissimilar to what was shown in those photographs. He was stroking your hair and eventually you began to fondle his penis. What do you say to that?
A. I don't remember.

Q. That after a period of time you attempted to roll him on top of you. You were unsuccessful initially. You then were successful and at that stage you were wearing a top. Either the blouse that you’ve described with the flared waist or some similar longish sort of top. Does that ring any bells?
A. No.

Q. That he was between your legs. He pulled his trousers down. He eventually introduced his penis into your vagina and he had sexual intercourse with you for a little while until you heard the words that you've given in evidence “I’m going to come” or “I want to come” and you reacted with "What the fuck?" and you pushed him away. But I take it you’ll say you just don't remember?
A. That’s correct.

HER HONOUR: Q. Up until the time of the “I am about to come” or “I need to come”, that is your first memory. Is that what your evidence is?
A. My first memory is waking up to the penetration.” (T.120.44-121.21)

  1. Evidence was given by other guests at the party as to the state of sobriety of the complainant. Mr T said that Dean Fox was the first guest to arrive. The applicant and Mr Petro arrived at about 3.30pm and stayed until about 6pm when they left to go to another party. Daniel McGorry was the next to arrive and stayed until 2-3am. Dean Fox left to go to another party at around 10.30pm with his partner, Erin Rugg. Mr Graham arrived at the party from the airport at about 8-8.30pm.

  2. Dean Fox and Erin Rugg returned to the party and left at about 1am. The applicant and Mr Petro returned to the party at about 2am. Daniel McGorry had just left or was about to leave. He described the atmosphere as good, friendly and happy. Mr T said that he, the complainant, Mr Graham and the applicant continued to drink, dance together and play music after the other guests had left.

  3. Sometime later, the complainant sat on the couch, then lay on the couch. Mr T said that she appeared to be tired. He decided to take the dogs for a walk. He put an arm around the complainant and helped her up from the couch. He said “Come on ... we’ll go to bed. I’ll take you to bed”. They walked into the bedroom. He said that the complainant started to undress and he helped her with her clothing. He said that she had no clothing on by the time she was in bed. He pulled the sheet and the duvet up, kissed her and said “We’ll be back shortly”. The complainant had no recollection of moving from the couch to the bedroom and getting undressed.

  4. Mr T, Mr Graham and the applicant were in the lounge/kitchen area when he told the applicant that they were going to take the dogs out and probably have something to eat and get some fresh air. The applicant said “No, you shouldn’t do that. You don’t need to go out. Just stay here. There’s no need to”. Mr T said that they were going out and said to the applicant “Are you alright to get home?” The applicant said he was just going to get his shoes and shirt or jacket and started to look around to find them. It was about 6am when Mr T and Mr Graham left the unit.

  5. Mr T said that when he helped the complainant out of her clothes, she was beside the bed and was wearing a blue top with frills on the bottom, “maybe a skirt” and underwear. The clothes were put on the floor beside the bed by both of them. In cross-examination, Mr T agreed that before the party, his relationship with the applicant was a happy and friendly one. He agreed that he now regarded the applicant with hatred.

  6. Mr T said that he was drinking beer that night and he did not remember how many beers he had drunk in the fourteen and a half hours of the party. He agreed that it was a lot. He may also have drunk some rum. He did not think that he was drunk by the time he took the dogs for a walk. He was able to walk without impediment and could talk to people and understand them. He agreed that he had consumed a lot of alcohol at the party, had been drinking continuously and had ingested cocaine but was still okay to take the dogs for a walk. He said that Mr Graham was of similar sobriety.

  7. Mr T agreed that he and the complainant would drink wine over dinner and when they went out and socialised with friends. On occasions they would take a bottle or two of wine to the park for a picnic. He denied that when they drank together the complainant would match him drink for drink. He had seen her significantly affected by alcohol in the twelve months before the party. When she was significantly affected by alcohol she occasionally had slurred speech but did not have unsteadiness on her feet. She never got ill or appeared to have difficulty communicating. He said that the other sign that the complainant was well affected by alcohol was that at the end of an evening she would be tired.

  8. Mr T agreed that his signed statement to police on 1 January 2018 was an accurate representation of what he told them. He agreed that nowhere in his statement did he say that the complainant was not able to walk without assistance when he took her to the bedroom. He said that she did need assistance from him. He had his arm around her and helped her walk to the bedroom. When she got to the bedroom, she began to disrobe with his assistance. He agreed that there was nothing in his statement about assisting the complainant to undress.

  9. Mr Graham had been friends with Mr T since 1999 when they both worked together in London. He arrived in Sydney from London at about 6.30pm on New Year’s Eve and went straight to the unit, arriving at about 8-8.30pm. Mr Graham started drinking beer and also some rum which he had bought at a duty free shop. He and Mr T drank the rum, mixing it with coca cola.

  1. To his observation everyone appeared to be drinking alcohol, including the complainant and the applicant. He remembered that Mr Petro left the party at about 3-3.30am because he had work to do in the morning. Thereafter, he, the applicant, Mr T and the complainant remained drinking and talking with music playing. The applicant tried to get him to dance but he was “not up to it”. The applicant was in a “party mood”.

  2. To his observation the complainant was outgoing and bubbly on the night. He did not recall seeing her dancing. He did not recall dancing with his arms on Mr T’s and the complainant’s shoulders or the four of them dancing, but it was “certainly possible”. The applicant appeared intoxicated in a general partying mood but Mr Graham did not recall his speech being slurred or that he was unsteady on his feet. Mr Graham was not paying attention to what other people were drinking or how much they were drinking.

  3. He recalled that the complainant had fallen asleep on the couch and he remembered Mr T putting her to bed. His evidence was:

“Q. What do you remember happening next?
A. Maybe [the complainant] had a sleep on the couch, and I remember [Mr T] putting her to bed, or waking her up and sort of, you know, [the complainant] went to bed, and then me, [the applicant] and [Mr T] just continued listening to music, yeah, drinking, until it got light, and then [Mr T] said that he wanted to take his dogs out for a walk. I think [the applicant] was keen to carry on the party, but I was quite, you know, by that stage, I was quite tired after a long flight and being up all night, and I said, “[Mr T] wants to take the dogs out for a walk”, so I said I’d take his two out for a walk with him.” (T.216.7)
...

Q. I’ll just take you back a step. You said [the complainant] fell asleep on the couch, or the lounge?
A. Yes, as I recall.

Q. And Mr T took her to bed?
A. Yes.

Q. Can you describe what you saw when you saw [Mr T] take her to bed?
A. I guess he just woke her up and just--

...

Q. When you saw [Mr T] take her to bed, can you tell the Court what you saw, if anything?
A. To be honest, I can’t recall what I saw, it was just them walking into the bedroom. As far as I’m aware, he didn’t assist her, she just walked by again, I wasn’t really. It’s not something that I recall vividly to say exactly how it happened.” (T.216.20)

  1. Mr Fox was a friend of Mr T and the complainant. He had also met the applicant and Mr Petro on a number of occasions before the New Year’s Eve party. Mr Fox had six or seven drinks before he left at 5.30pm to meet his partner, Erin Rugg at another party. He observed that the complainant, Mr T and Mr Graham were also drinking. The complainant was in the kitchen preparing food. She had a glass in her hand and was drinking champagne. Mr Fox had another six drinks at the other party. He and Ms Rugg returned to the complainant’s unit at about 10pm. He observed that the complainant at that time was loud and boisterous. He said that she was “pretty drunk”. She and Ms Rugg spent time in the kitchen talking. At about 1am he and Ms Rugg left the party. He had had about 20 beers by then. His observation of the complainant was that she was drunk and slurring her words a little. He described her as being “loud”.

  2. Mr Fox said that it was usual for the complainant to be “loud” and “she was a very loud and fun character to be around”. He said that she was very affectionate when he arrived back at the party with Ms Rugg and gave him a big hug and a kiss on the cheek and said “welcome back”. He did not see her being affectionate to anyone else at the party. He did not recall the complainant dancing at any stage. He did not recall seeing the applicant dancing. He agreed that he was “well intoxicated” when he left the party at 1am.

  3. Ms Rugg arrived at the party at about 10pm. Between the time she arrived and when she left the party at 1am, she shared a bottle of wine and a bottle of champagne with the complainant. She drank about half of each bottle and the complainant drank the other half.

  4. Ms Rugg said that she told the police everything she could remember in her statement of 17 January. She did not recall seeing the complainant or anyone else dancing at the party. She found out there was cocaine at the party when the complainant showed it to her in the bedroom. She and the complainant split the cocaine and snorted it. That was the only occasion on the night that she took cocaine. The complainant told her that the applicant and Mr Petro gave her the cocaine. Ms Rugg did not recall if the complainant went off on her own or with anyone else at any stage during the night.

  5. Mr McGorry had been a friend of Mr T for about three years at the time of the party. He had met the next door neighbours once or twice previously. He arrived at the party at about 5-5.30pm. He drank beer and ate food. He remembered the applicant and Mr Petro leaving the party and subsequently returning some hours later. He agreed that he was affected by the amount of alcohol he had drunk and that at about 3am he lay down on the lounge but then decided to get a taxi home and left the party. He said that when he left, the complainant, Mr T, the applicant, Mr Petro and Mr Graham were still partying. They were drinking, dancing and listening to music.

  6. The complainant’s evidence was to the effect that she had consumed four bottles of champagne, a beer and half a bottle of white wine between 2.30pm in the afternoon of the party until about 3am the following morning when she stopped drinking. There was evidence that on three or four occasions during this time she took cocaine.

  7. The experts called by the Crown and the defence agreed that she had over-estimated her alcohol consumption. Mr Farrer, an expert called by the Crown, estimated that on that level of alcohol consumption the complainant’s blood alcohol concentration was most likely .64 grams per 100 millilitres of blood which was in the fatal range. It was accepted at trial that the complainant had suffered some degree of memory loss by reason of her alcohol consumption. She was aware that she did not remember her partner helping her to bed. There remained an issue as to whether she had suffered only fragmentary loss of memory, or a full memory blackout. Mr Farrer estimated the likely blood alcohol level of the complainant at .29. The defence case at trial was that there was a reasonable possibility that the complainant suffered a full alcohol induced memory blackout which was why she had no recollection of having consensual sex with the applicant. The defence expert, Dr Robertson, estimated her blood alcohol level as more likely .2. The Crown expert was of the view that a full blackout was likely to occur with a blood alcohol consumption of .2 or above.

  8. Dr Robertson was of the view that either a full or fragmented loss of memory could occur at .2. Dr Robertson’s evidence was that with a blood alcohol level above .2, the complainant would show significant signs of intoxication, including impaired psychomotor function, impaired balance, slurred speech and reduced cognitive ability. He also agreed that the cumulative effect of the level of alcohol consumed, the rebound sedated effect of the cocaine and the fatigue of being awake all night were all relevant factors when considering the complainant’s level of sedation and tiredness by 6am in the morning.

The defence case

  1. The applicant submitted that the prosecution case was entirely dependent upon the reliability of the complainant. He submitted that it was necessary to consider all of the evidence in the case in respect of the unreasonableness ground. This was particularly so in a case where it was alleged that a complainant was sexually assaulted while unconscious; whether due to being asleep or for some other reason.

  2. The applicant submitted that the jury ought to have had a reasonable doubt as to his guilt because of the complainant’s inability to recall and challenge his evidence at trial. The applicant submitted that the prosecution failed to negative the reasonable possibility that the complainant consented to sexual intercourse or that the applicant honestly believed she was consenting.

  3. The applicant identified the essential questions for the jury as:

  1. whether the complainant had sexual intercourse by consent or if not;

  2. whether it was reasonably possible that the applicant honestly believed that the complainant was consenting to sexual intercourse.

  1. The applicant submitted that while there was no issue that sexual intercourse took place, only he gave evidence of the circumstances leading up to it.

  2. The applicant submitted that in substance the complainant’s evidence was that she was asleep and incapable of consenting while his evidence was a denial that she was asleep and an assertion of conversations and foreplay leading to intercourse. The applicant submitted that the complainant’s failure to recall the events preceding intercourse was readily explainable by the evidence of the experts to the effect that it could be inferred that she suffered a blackout of memory caused by her consumption of alcohol.

  3. The applicant submitted that there was little dispute between the experts and that the effect of their evidence was that an alcohol induced blackout impairs long term memory, as does sleep. The applicant submitted that it was not without significance that it was accepted by the prosecution that the complainant had over-estimated the volume of alcohol she had drunk. This, he submitted, adversely affected the assessment of her reliability.

  4. The applicant submitted that his case was that there was actual consent to the sexual intercourse, or that he honestly believed that the complainant consented to sexual intercourse. He submitted that his evidence was unchallenged as to the entirety of the conversations and acts immediately preceding intercourse. This was because the complainant did not remember dancing in a provocative way with him upon his return to the party and did not remember whether the applicant spoke to her from the door of her bedroom when she was in bed, before he lay down with her. Her response to all those propositions was that she did not remember.

  5. The applicant submitted that his evidence about those events was not the subject of direct challenge by the prosecutor in cross-examination. This was the series of events commencing with the complainant lying on the bed while they were alone in the apartment, i.e. him lying down next to her and speaking about the party, about one of the guests being drunk and about the cocaine they had used. The applicant noted that no challenge was directed at his assertions in evidence in chief that the complainant snuggled against his shoulder and that they were “getting cosy”, continued to converse and that she kissed him on the neck for a prolonged period. Her response was that she did not recall those matters (T.111.20).

  6. The applicant submitted that the complainant’s evidence in chief, which she confirmed to her Honour in cross-examination to the effect that her first memory after falling asleep on the couch was of waking during sexual intercourse did not ipso facto prove, or even justify, an inference that she was asleep immediately before intercourse commenced. The applicant submitted that the effect of that evidence went no higher than an assertion that it was the first thing she remembered.

  7. The applicant submitted that the prosecution case was entirely dependent upon the complainant’s reliability. The applicant submitted that while it was not part of his case and it was not suggested that the complainant was dishonest in the sense that she engaged in deliberate fabrication, it was his case that she was an unreliable witness. The applicant submitted that as a result of that unreliability, no jury acting rationally could be satisfied that an allegation dependent upon her evidence was correct beyond reasonable doubt. The applicant submitted that this was particularly so when the witness was unable to deny the accused’s entirely exculpatory evidence of consensual sexual intercourse or that he engaged in such conduct with an honest belief in her consent.

  8. The applicant submitted that it could not be said that her evidence was “compellingly credible” when she was unable to deny the essential aspects of his exculpatory assertions relating to consent on the basis that those were matters of which she had no memory. The applicant submitted that the law recognises that there is a real danger in overvaluing demeanour so that no jury may make the manner in which the witness gives evidence the only or even the most important factor in its decision. In support of that proposition, the applicant relied upon the observations of the High Court (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ) in Fennell v The Queen (2019) 93 ALJR 1219; [2019] HCA 37 at [81]

  9. The applicant submitted that the prosecution’s case was that the complainant was sedated (by her ingestion of alcohol and cocaine) and whether or not her memory was fragmented or blacked out, none of his assertions occurred. The applicant submitted that an examination of the whole of the evidence led to the inevitable conclusion that the reasonable possibility that sexual intercourse was consented to by the complainant had not been negatived.

  10. The applicant submitted that no matter how favourable or sympathetic a view was taken of the complainant, it was not open to the jury acting rationally to conclude that the prosecution had eliminated all reasonable doubt. The applicant submitted that where exculpatory evidence is raised, such as consent or honest belief in consent, the demeanour of the complainant does not inform its cogency. The applicant submitted that it was contrary to the burden of proof for a jury to accept the evidence of a complainant even though they cannot say why and to reason from the basis of that acceptance to a conclusion that there was no consent or honest belief in consent.

  11. The applicant submitted that as a matter of legal theory a response by a complainant to a proposition put to him or her that “I don’t remember” is not a rebuttal of the proposition because the complainant could still have engaged in the activity and not remembered what he or she had done.

  12. The applicant submitted that the ultimate question in the appeal was whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt. He submitted that in order to answer that question it was necessary for the Court to first independently assess the whole of the evidence (and not each piece in isolation), to consider whether it has itself a reasonable doubt about his guilt and if so, whether the jury had an advantage capable of resolving the doubt held by the Court. The applicant submitted that in this case the Court’s examination of the entirety of the evidence taken together, would compel it to doubt its capacity to contest his account. The applicant submitted that the whole of the evidence does not permit the jury to reject the unchallenged assertion of actual consent or honest belief in consent which he has put forward. The applicant submitted that the inability of the complainant to recall, much less contradict his evidence relating to consent, was such that even making full allowance for the jury’s advantage, there is left a significant possibility that an innocent person was convicted.

Consideration

Relevant legal principles

  1. The task of a Court of Criminal Appeal was set out by the plurality (French CJ, Gummow and Kiefel JJ in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13:

“11   It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, 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”.

12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as ‘cannot be supported, having regard to the evidence’.”

13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”

...

14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

“In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.””

  1. More recently, the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) restated those principles in Pell v The Queen [2020] HCA 12 (Pell) where their Honours said:

“37   Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.

38   It should be understood that when the joint reasons in M v The Queen spoke of the jury's “advantage in seeing and hearing the witnesses” as being “capable of resolving a doubt experienced by a court of criminal appeal” as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury’s assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or “constitutional” demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.

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

...

43   At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself:

“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”.

44   The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the I test in these terms:

“But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant’s guilt.” (footnote omitted; emphasis in original)

45   As their Honours observed, to say that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M.

46   When it came to applying the M test, their Honours’ subjective assessment, that A was a compellingly truthful witness, drove their analysis of the consistency and cogency of his evidence and the capacity of the evidence of the opportunity witnesses to engender a reasonable doubt as to his allegations. Their Honours reasoned, with respect to largely unchallenged evidence that was inconsistent with those allegations (the “solid obstacles” to conviction), that notwithstanding each obstacle it remained possible that A's account was correct. The analysis failed to engage with whether, against this body of evidence, it was reasonably possible that A’s account was not correct, such that there was a reasonable doubt as to the applicant's guilt.”

  1. It is not correct, as the applicant has asserted, that the prosecution case depended entirely upon the evidence of the complainant. There was evidence supporting the complainant’s evidence that she woke up to find the applicant having non-consensual sex with her. There was the evidence of Mr T as to her impaired physical condition shortly before the offence when he assisted her to move from the couch to her bed and undress. This was in circumstances where she was not speaking properly. The offence in question must have occurred at some time between about 6.15am, when Mr T left to walk the dogs, and 7.09am when he received the distressed phone call from the complainant. It can be inferred that it was shortly before 6.15am when Mr T helped her walk to bed and observed her condition.

  2. Contrary to what was asserted by the applicant at trial, I do not regard the evidence of Mr Graham as necessarily inconsistent with that of Mr T. His evidence as to what he saw when Mr T accompanied the complainant to bed was highly qualified:

“A. To be honest I can’t recall what I saw, it was just them walking into the bedroom. As far as I am aware he didn’t assist her she just walked by again. I wasn’t really, it’s not something that I can recall vividly to say exactly how it happened.” (T.216.41) (See also [29] hereof)

  1. Accordingly, if the evidence of Mr T is accepted as to the complainant’s condition when she moved from the couch to her bed, it is quite inconsistent with the evidence of the applicant as to what happened when he went to the complainant’s bedroom. The undisputed evidence of the experts as to the sedating effects of the complainant’s alcohol consumption, cocaine use and general fatigue, allows an inference to be drawn that within approximately 60 minutes of her being taken to bed she would not have been able to do the things described by the applicant. That evidence, taken together, provides support for the complainant’s evidence that she was and had been asleep at the time the intercourse commenced.

  2. It follows from the above that the jury was entitled to reject the evidence of the applicant that the complainant was conversational and active enough to initiate sex within a short time of Mr T and Mr Graham leaving to walk the dogs. The jury were also entitled to reject, as the complainant did, any suggestion that she was interested in having sex with the applicant who she knew to be in an existing gay relationship. The complainant denied having any knowledge that the applicant might have been bisexual.

  3. Moreover, the jury was entitled to accept the evidence of the complainant that she was asleep before she woke to find the applicant having sex with her. Her evidence is that her eyes were initially closed, consistent with her having been asleep, her process of reasoning as to what was happening was not fragmented and it was only when she heard the applicant’s voice that she realised that the other person in her bed was not her husband. Importantly, her recollection of events when she awoke was not only not fragmented but consistent with what the applicant said happened (apart from the issue of whether his statement about leaving was in the form of a question).

  4. There are difficulties in the applicant’s submission that the jury should have had a reasonable doubt as should this Court because of the complainant’s inability to recall and challenge his evidence at trial. Clearly the law contemplates situations where a complainant may be sexually assaulted while asleep (s 61HE(5)(b) of the Crimes Act 1900 (NSW)). The prosecution case which the jury obviously accepted was that the complainant was unable to recall events after she was assisted to bed because she was asleep at the time.

  5. One of the problems for the applicant, which does not depend upon an absence of memory by the complainant, is his assertion that there was an occasion when he and the complainant engaged in provocative dancing. He described various activities which were of an overtly sexual nature while he was dancing with the complainant. However, at the time that such dancing was said to have taken place, Mr Petro had left the party as had all the other guests, except for Mr T and Mr Graham. In those circumstances, given that it was a small unit, it would be most surprising if neither Mr T nor Mr Graham observed such dancing. If they had observed it, they had either no recall about it or had simply failed to mention it. Given Mr T’s actions and feelings towards the applicant after the complainant told him what happened, one can infer that had there been the provocative dancing as described by the applicant and had he seen it, he would have done something about it.

  6. When one has regard to the whole of the evidence, if the jury rejected the applicant’s version of events as they were entitled to and accepted the remaining evidence, it was open to them to be satisfied beyond reasonable doubt that the Crown had established all the elements of the offence noting that any belief as to consent by the applicant had to be reasonable.

  7. It should also be noted that although the complainant had no recollection of many of the matters put to her, particularly those relating to what was said to be her interaction with the applicant, the prosecution did directly challenge the applicant’s evidence at trial by putting a completely different version of events to him, i.e. that the complainant was asleep at the time that he commenced having sexual intercourse with her and that he knew this to be so.

  8. The applicant submitted that it was never established in the Crown case that the complainant was in fact asleep at the time when sexual intercourse commenced. This submission is not made out. On two occasions in evidence in chief, the complainant referred to “waking up to the feeling of penetration” (T.57.37, 59.39). Importantly in the course of cross-examination, the complainant reiterated the proposition that “my first memory is waking up to the penetration” when asked a question by her Honour (T.121.21). Throughout her evidence, the complainant consistently described what happened in those terms. That is how she described what occurred to the police (Detective De Castro) and to Dr Lee at the hospital. Accordingly, it is not correct to say that it was never established in the Crown case that the complainant was asleep when the sexual intercourse commenced. Her evidence on that issue was available for the jury to accept or reject. They clearly accepted it.

  9. When one looks at the competing versions of events, they cannot be reconciled. The complainant was well aware that she did have a gap in her memory between the time when she fell asleep on the couch and the time she says that she awoke to find sexual intercourse happening. While she cannot remember moving from the couch to the bed, the description of her thoughts and actions when she became conscious of the vaginal penetration are quite consistent with those of a person who had been asleep and was now waking up, rather than someone who had blacked out until that point in time. The evidence of Dr Lee was that her account of what happened when she first woke up was consistent with having what he described as “some sleep inertia”, particularly in circumstances where something out of the ordinary was happening.

  10. It needs to be kept in mind that the applicant’s case was not that she had somehow fallen asleep during sex, having been wide awake when she initiated sex, gone to sleep in the middle of it and then suddenly woken up. The applicant’s case was that she had been awake for the entire time and that the explanation for all of this was that later she had forgotten about it. That version of events cannot be reconciled with the statement by the complainant that “I woke up” or words to that effect. This is because there is no evidentiary basis for some in between finding. The evidence was not to that effect, nor was the case put to the jury in that way. If the jury was satisfied beyond reasonable doubt that the complainant was reliable and truthful when she said that she awoke to find the applicant penetrating her and from that point in time there was no memory loss, then it was well open to them on the whole of the evidence to find beyond reasonable doubt that she did fall asleep and was asleep when the sexual intercourse commenced. There is no middle ground.

  11. It was common ground that the applicant did not have to give evidence and it was not up to him to disprove the Crown case. He was, however, a witness in the case and his evidence had to be assessed in exactly the same way as that of the other witnesses in the trial. In those circumstances, it was open to the jury to reject his evidence.

  12. That, of course, does not mean that the prosecution case should succeed. It still had to be established beyond reasonable doubt by the Crown that the complainant was not consenting and that the applicant knew she was not consenting. Having reviewed the evidence, and for the reasons set out above, I have concluded that it was well open to the jury to find beyond reasonable doubt that those matters had been established.

  13. The last sighting of the complainant and the condition she was in would have been shortly before 6.15am. The evidence did not enable a precise time to be established but that was about the time when Mr T took the dogs out. His evidence of her condition and the state she was in showed that she was, at that stage at least, on the verge of sleep. She was unable to walk by herself and had to be assisted to undress. She was largely non-responsive to Mr T’s questioning or statement to her as to where he was going. It was reasonably open to the jury to conclude that until she became conscious of the penetration by the applicant, approximately 45 – 60 minutes later, that she had been asleep.

  14. The picture painted by the applicant is completely different and quite inconsistent with the evidence of both Mr T and to a lesser extent, Mr Graham. The applicant says that he and the complainant were lying on the bed having a chat and that she was wearing clothing. To accept that version, it would have to be accepted that the complainant had gone from lying in bed in a semi-conscious state to being able to dress herself and conduct a rational conversation. On the applicant’s case, she appears to have had a recollection of what went on at the party and then to have initiated sex with him in circumstances where she knew that he had a permanent partner.

  15. Keeping in mind that the complainant is unable to remember what happened between her lying on the couch and becoming conscious of vaginal penetration, if the jury found that the complainant was reliable when she gave evidence of having woken up and the circumstances surrounding that awakening, then it was well open to the jury to find beyond reasonable doubt that she had been asleep before that and had not been capable of consenting to sexual intercourse.

  16. For the reasons set out above, I am satisfied on the whole of the evidence that it was reasonably open to the jury to find beyond reasonable doubt that the complainant had not consented to sexual intercourse with the applicant and that he knew she was not consenting.

  17. It should also be noted that in this case, unlike that of Pell v The Queen, the jury did have a substantial advantage that this Court does not have, of having seen and heard the witnesses. This was not a case where, independently of the veracity and reliability of the prosecution witnesses, there was other material which placed doubt on their evidence.

  18. The orders which I propose are:

  1. Leave to appeal against conviction is granted.

  2. The appeal against conviction is dismissed.

  1. FAGAN J: I agree with the Chief Judge. The applicant’s submissions concentrated on the second and third of his points as to why the jury ought to have had a reasonable doubt about the credibility and reliability of the complainant, whose evidence was critical to proving absence of consent. In essence those points come down to the following proposition:

[The complainant] had no recollection of exculpatory matters asserted by the applicant relating to the issue of consent and did not challenge them.

  1. In the passages of the complainant’s evidence that the Chief Judge has quoted, she said:

I was asleep.

The next thing I remember is waking up to the feeling of penetration.

My first memory is of waking up to the penetration.

  1. The applicant’s evidence was that sexual intercourse with the complainant was preceded by conversation and foreplay in which she participated. The applicant’s counsel endeavoured to persuade the Court that, because the complainant said she had been asleep and was already being penetrated when she awoke, she was not in a position to contradict the applicant about how the sex commenced. Counsel submitted that the jury was therefore bound to accept him, at least to the point of having a reasonable doubt concerning absence of consent. Counsel submitted:

She was not […] denying that there had been foreplay, that there had been conversation and that there had been cuddling and so on. She is not saying it didn’t take place, she’s just saying look the first thing I recollect is during intercourse.

  1. I do not accept counsel’s argument. The complainant’s evidence that she was asleep and woke up to find penetration taking place was in itself a contradiction of the applicant’s description of preliminary conversation and encouraging foreplay. According to the complainant, on her side the prelude to penetration was sleep, not active participation. She said she had not consented and the jury could infer beyond reasonable doubt that the accused knew she was not consenting.

  2. On my reading of the whole of the evidence, relevant parts of which the Chief Judge has summarised, it was open to the jury not to believe what the applicant said about the circumstances in which he commenced intercourse. For the jury to discount that evidence it was not essential that the complainant should have given an alternative, waking version of what preceded her first awareness of being penetrated. It was open to the jury not to accord the applicant’s testimony sufficient credit or weight for it to raise any reasonable doubt about the complainant’s recollection of waking from sleep to find that intercourse had begun without her consent.

  3. I have reached this view after taking into account the advantage the jury had of seeing and hearing the witnesses. It is a conclusion drawn bearing in mind that “the setting aside of a jury's verdict is, on any view, a serious step” (MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [48]-[49]; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]). I have paid due regard to the position of the jury as “the body entrusted with the primary responsibility of determining guilt or innocence” (M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63) and “the constitutional tribunal for deciding contested facts” (MFA v The Queen).

  4. CAVANAGH J: I have had the benefit of reviewing the judgments of the Chief Judge at Common Law and Fagan J. I agree with the orders proposed.

  5. I have carried out my own independent assessment of the whole of the evidence.

  6. As the High Court stated in M v The Queen,[1] this Court must ask itself 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.

    1. (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.

  7. Further, as the High Court stated in Pell v The Queen, [2] in a case such as this, the Court proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The Court then examines the record to see whether, notwithstanding the assumption that the jury considered the evidence to be credible and reliable, there were any inconsistencies, discrepancies or other inadequacies, which ought to have led the jury to entertain a reasonable doubt as to proof of guilt. Regard should be given to the advantage enjoyed by the jury over a court of appeal, which has not seen or heard the witnesses called at trial.

    2. [2020] HCA 12 at [39].

  8. The jury was presented with a stark contrast between the applicant’s version of events and that of the complainant. There was little in the surrounding circumstances that could bear on the resolution of this conflict.

  9. For example, the complainant called her husband immediately, apparently in distress. On the other hand, when confronted by the complainant’s husband, the applicant immediately denied that which was suggested to him. There was differing evidence as to what the complainant was wearing if anything. Mr T’s evidence could only be reconciled with the applicant’s evidence on the basis that, after being put to bed by Mr T without any clothes on, she must have placed her top on after he left.

  10. Central to the applicant’s appeal is that despite being warned of the difference between a denial and a “don’t remember” type of answer, the complainant did not reject the applicant’s propositions as to her activities during the evening and leading up to the sexual intercourse but continued to assert that she could not remember.

  11. It is thus submitted that the applicant’s evidence of these same events was not subject to challenge.

  1. The applicant submitted:

“Whilst there was no issue that sexual intercourse took place, only the appellant gave evidence of the circumstances leading to it. …

The defence case that there was actual consent to the sexual intercourse, or that the appellant honestly believed that the complainant consented to sexual intercourse. His evidence was unchallenged as to the entirety of the immediately preceding conversation and acts …”

  1. That may be correct insofar as it relates to the activities earlier in the evening.

  2. However, that does not mean that the jury was bound to accept the applicant’s evidence as to the complainant’s conduct earlier in the evening and in the period leading up to the sexual intercourse. Further the applicant’s evidence was the subject of direct challenge in terms of the events that happened after the complainant’s husband left the premises as follows:

“Q. You went into that bedroom after [Mr T] left?

A. Yes, I did.

Q. And you found [the complainant] asleep in bed?

A. No, she was not asleep.

Q. And she had no clothes on?

A. That’s incorrect.

Q. And you see you knew because –

A. She was wearing a green floral dressy top and it went about halfway down her thighs.

Q. So you knew that [Mr T] had taken the dogs for a walk?

A. Yeah.

Q. You knew that he’d be gone for about an hour?

A. Correct.

Q. 45 minutes?

A. About that amount of time.

Q. So that’s about that much time you knew you had before he’d come back roughly, didn’t you?

A. Sure.

Q. And it’s the case you took advantage of that time, didn’t you?

A. That’s not right, no.

Q. Well you took advantage of [the complainant] being asleep in her bed?

A. No, that’s incorrect. I did not take advantage of her. That is incorrect. She was not asleep.

Q. She was naked?

A. She was not naked.

Q. And you knew that [Mr T] would be gone for about 45 minutes?

A. That’s – you’re putting those words in my mouth, that –

Q. I am putting it to you. You can agree or disagree?

A. That is the amount of time that it would normally take for them to walk the dogs. You asked the question, I answered it honestly. That wasn’t something that I was thinking of at the time.

Q. You went in and inserted your penis in [the complainant’s] vagina while she was asleep?

A. No.

Q. And you knew [the complainant] wasn’t consenting to sexual intercourse with you at that point?

A. No, I did not know that.

Q. That’s because she was asleep?

A. She wasn’t asleep.

Q. And she was heavily intoxicated?

A. No, she wasn’t intoxicated.

Q. And [the complainant] woke up when you were having sex with her, didn’t she?

A. No, she was awake the entire time.

Q. And she woke up when you were saying ‘I need to come’ or ‘I’m going to come’?

A. Like I said before I said, ‘I’m going to come’.

Q. She opened her eyes and touched you and she said, ‘What the fuck’ when she saw you?

A. Her eyes were already open.”

  1. The applicant submits that the prosecution case was entirely dependent upon the complainant’s credibility and reliability. He submits that the complainant’s unreliability is manifest and that no jury acting rationally is entitled to be satisfied that an allegation is correct beyond reasonable doubt when the relevant witness is unable to deny the accused’s entirely exculpatory evidence of consensual sexual conduct or that his conduct was engaged with an honest belief in her consent.

  2. The difficulty for the applicant is that the complainant maintained that she was asleep. She says that the next thing she remembers after lying on the couch was waking up to a feeling of penetration. She further said:

“Q. And what were you doing when you felt those two things at that stage?

A. Well as I said, I was asleep and so I woke up to this feeling and I was, I had my eyes closed still and I was very disorientated trying to gather what was happening.”

  1. That evidence may be contrasted with the evidence of the applicant to which I have already referred, that is, he specifically said that she had her eyes open and she was awake the entire time.

  2. According to Senior Constable Castro, the Police had arrived at the premises at 8.45am. That is, within two hours of the events. The complainant disclosed to the Officer that she woke up and recognised the person having sexual intercourse with her as the applicant.

  3. Of course, the applicant bore no onus but, as I said at the commencement of my judgment, the jury was faced with the stark contrast between the complainant’s version and that of the applicant. Resolving that contrast was a matter for the jury.

  4. The fact that the complainant could only answer questions with “I don’t remember” could be consistent with her having a memory blackout as referred to by the experts but her answers are also consistent with her being asleep as she said she was.

  5. In my view, it was open to the jury to accept the complainant’s evidence as credible and reliable. It must be taken to have accepted the complainant’s evidence in preference to that of the applicant. In all the circumstances, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.

********


I certify that this and the 33 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law.

Morna Lynch

Associate

Date: 31 July 2020

Endnotes

Amendments

31 July 2020 - Par [91] amended to provide anonymity.

Decision last updated: 31 July 2020

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Fennell v The Queen [2019] HCA 37
R v Pidoto [2002] VSCA 60
Fennell v The Queen [2019] HCA 37