Smith (a pseudonym) v The Queen
[2021] ACTCA 16
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Smith (a pseudonym) v The Queen |
Citation: | [2021] ACTCA 16 |
Hearing Date: | 18 February 2021 |
DecisionDate: | 2 July 2021 |
Before: | Murrell CJ, Loukas-Karlsson and Charlesworth JJ |
Decision: | The appeal is allowed. Pursuant to section 37O(1)(d) of the Supreme Court Act 1933 (ACT), the verdicts of guilty in respect of counts 1, 2, and 3 are set aside and in lieu thereof, a verdict of not guilty is entered on each count |
Catchwords: | CRIMINAL LAW – APPEAL – Whether verdicts unreasonable having regard to the evidence – Whether trial judge failed to adhere to Liberato direction – Whether trial judge made impermissible consideration of “common knowledge” – Application of s 144 of the Evidence Act |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 60 Criminal Code 1924 (Tas) sch 1 ss 2A, 14A Supreme Court Act 1933 (ACT) ss 37O, 68C |
Cases Cited: | Coughlan v The Queen [2020] HCA 15; 267 CLR 654 De Silva v The Queen [2019] HCA 48; 268 CLR 57 |
Texts Cited: | Australian Law Reform Commission, Uniform Evidence Law (Report No 102, February 2006) Richard Eggleston, Evidence, Proof and Probability (Weidenfeld & Nicolson, 2nd ed, 1983) |
Parties: | John Smith (a pseudonym) (Appellant) The Queen (Respondent) |
Representation: | Counsel B Walker SC with M Jones (Appellant) S Drumgold SC with K McCann (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 22 of 2020 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 4 June 2020 Case Title: R v Smith (a pseudonym) Citation: [2020] ACTSC 142 |
MURRELL CJ:
Introduction
The appellant was tried by Mossop J (the trial judge), sitting as a judge alone, on charges that, on 28 April 2018, he committed three sexual offences against the complainant: one act of indecency without consent, contrary to s 60 of the Crimes Act 1900 (ACT) (Crimes Act); and two offences of sexual intercourse without consent, contrary to s 54 of the Crimes Act.
The appellant and the complainant were 17 years old. Prior to 28 April 2018, they had known each other for several months and had engaged in sexual activity that fell short of penile/vaginal penetration, such as kissing and digital penetration.
On the night in question, the complainant collected the appellant from a party and drove him home. En route, they stopped at an oval, and engaged in consensual sexual activity inside the complainant’s vehicle.
The complainant said that, without her consent, the appellant then attempted to engage in cunnilingus and, in doing so, he licked her thigh. He proceeded to engage in penile/vaginal intercourse without her consent.
Very soon after the incident, the complainant made complaints to her friend Margaret Campbell (a pseudonym), both parents, and her friend Greg Brown (a pseudonym).
The appellant gave evidence that there had been no act of licking and the complainant had freely and voluntarily engaged in penile/vaginal intercourse.
At the trial, the issue of lack of recklessness by the appellant was not canvassed. The critical issues were:
(a)whether the alleged act of indecency had occurred; and
(b)whether any of the three alleged acts had occurred without consent.
The trial judge found that the appellant was guilty of each offence: R v Smith (a pseudonym) [2020] ACTSC 142.
Pursuant to s 37O(2) of the Supreme Court Act 1933 (ACT) (SCA), the appellant appealed against the convictions on two grounds:
(a)The verdicts were unreasonable, having regard to the evidence and the trial judge’s failure to adhere to the “Liberato direction” (the unreasonable verdicts ground).
(b)There had been a miscarriage of justice caused by the trial judge’s impermissible consideration of “common knowledge” material that had not been the subject of evidence, and in relation to which there had been no opportunity to put information to the Court or make submissions (the s 144 of the Evidence Act 2011 (ACT) ground).
The appellant did not complain about the trial judge’s directions. Relevantly, his Honour gave a “Liberato direction” (at [23] of the reasons), a “Murray direction” (at [24]), a “Markulevski direction” (at [25]) and observed that he was entitled to use his common sense, and his individual experience and wisdom in assessing the evidence (at [18]).
Evidence of the complainant and other prosecution witnesses
The complainant’s evidence-in-chief was given by an interview conducted with police on 30 May 2018 (a month after the incident). She was cross-examined in January 2020.
Earlier events
In cross-examination, the complainant agreed that, prior to Friday, 27 April 2018, on at least two occasions at Mount Ainslie, she had engaged in consensual sexual activity with the appellant, although they had not been “dating”. He had digitally penetrated her. She agreed that, “at some point” when at Mount Ainslie, she had put her hands down his pants and used her hand on his penis (contrary to what she had told police on 28 April 2018 at A 316–320). The complainant told police that she had never engaged in fellatio with the appellant, but in cross-examination she said that, while she could not recall having engaged in fellatio at Mount Ainslie, she “may have” done so. He had never ejaculated in her mouth.
The complainant was with the appellant on the morning of 27 April 2018. They parted at about 1:30 PM. That night, after the appellant’s “lift fell through”, the complainant offered to collect him from a party at Barton. The appellant accepted the offer.
At about 11:30 PM, the complainant collected the appellant. He was “very drunk”.
The incident
The appellant asked the complainant to stop the vehicle at an oval near his house as he was feeling sick and wanted to “sober up before going home”: She complied. The appellant exited the vehicle and chased kangaroos on the oval. The complainant filmed him on her mobile telephone and sent Snapchat messages.
The appellant returned to the vehicle and entered the back seat. He removed his shirt, saying that he was feeling hot. The couple talked for a while.
The appellant asked the complainant to enter the back seat, and she complied. They began to kiss. After some minutes, the appellant digitally penetrated the complainant for a couple of minutes, or possibly five minutes, with her consent. Her tracksuit pants had been removed or were around her knees; she could not remember whether he had removed her pants completely or they had been pulled down to her knees. She was still wearing her underwear. They stopped, talked and Snapchatted with friends.
The appellant told the complainant that mutual friends (including Edmond Purcell (a pseudonym)) were “fucking” and suggested that they do so. The complainant laughed and said “no”. They continued Snapchatting. She said, “I just don’t want to do it in the car park” and commented that he had been drinking. The complainant perceived the situation to be “a bit awkward” because the appellant was expecting that she would change her mind. In cross-examination, she said that she did not want to comply with the appellant’s request because he was drunk, they were in a car park, and the relationship was not sufficiently well-established.
They resumed kissing and, at the appellant’s instigation, the complainant started to give him a “hand job”. He pulled his pants off. Her tracksuit pants were off, but she was still wearing her underwear. The “hand job” continued for two or three minutes, until he asked her whether she would use her mouth. She declined to perform oral sex on him.
The complainant stopped giving the appellant a “hand job”. They were kissing, and he was on top of her.
At about this time (whether before or after the request for oral sex is unclear), the appellant quickly removed her underwear. As the cross-examination about the removal of the complainant’s underwear and tracksuit pants was disjointed, it is difficult to follow what the complainant was intending to say. She conceded the possibility that she may have removed her own pants; she said that she did not remember. She also agreed that, although she had told police that the appellant had removed her clothing after she said “stop”, the removal of her lower garments had been consensual.
After quickly removing the complainant’s underwear, the appellant asked, “Can I lick you out?”. She said “no” and suggested that they go home. However, the appellant opened her legs and went down to “lick her out”. She pushed his head away and said “no, stop, we’re not doing it”. He said, “I can’t hear anything” (in a joking way) and started to go down again but licked her thigh (Count 1act of indecency without consent—). She sat up, pushed him away and said “no, stop”. She told him that she wanted to go home.
The appellant apologised and said that he would not do it. They resumed kissing. He completely removed his underwear. She was still on her back. As they were kissing, “he went to go down again”. She lifted her arms and told him to stop, but he did not do so. She grabbed his hair and told him to stop.
The appellant then pushed her shoulders down and tried to put his penis in her vagina. She “felt it go in a little bit” (Count 2sexual intercourse without consent—).
The complainant pushed the appellant off, pulled her legs together and said “stop”. He pushed her legs back open and “put it all the way in”. They began to wrestle. The appellant pushed the complainant down by her shoulders and put his penis into her vagina while she periodically pushed him away and closed her legs. She was telling him “No, stop. Stop.” He kept saying “What? I can’t hear anything. Nothing is happening. I can’t hear anything”. He held her shoulders and told her to stop.
The wrestling continued for about five minutes (the complainant also said “a couple of minutes”, “10 minutes”, she didn’t know whether it was 10 minutes, and “it felt like a long time, however it could have been shorter”). The appellant’s penis went in and out of her vagina several times; the appellant may have tried to insert it on about six occasions. On the first occasion, it was painful.
There came a point when the complainant “let him go” and, for about 15 seconds, he penetrated her while lying on top of her and kissing her neck. Her head was turned to the side and there were tears in her eyes. (Count 3sexual intercourse without consent—).
The appellant stopped and said, “What – were you being serious?”. She told him that she was serious and that she had said “no”. He repeatedly asked, “are you being serious?”. He started to “freak out” and began to hit himself in the head.
The complainant asked for her tracksuit pants as the appellant had them. The appellant put the pants on her lap. The appellant got out of the car and put his pants on. The complainant put her pants on and got out. She was crying. Her vagina and lower abdomen hurt when she stood up.
He tried to hug her and wipe away her tears. She told him not to touch her. He was “freaking out”. He started to punch himself. She told him to stop and said that she would take him home. He said that he had thought that she was teasing him, saying “no” but meaning “yes”.
They re-entered the car. The appellant grabbed the complainant’s car keys from where she had left them on the passenger side floor of the car and said that he wanted to talk about it.
They spoke for about 40 minutes. The appellant repeatedly apologised and hit himself. The appellant asked the complainant whether she thought that he had raped her. She said, “I don’t know”. He said that he did not think that it was rape because he “didn’t know” and he had thought that she was “kidding”. He made her promise not to tell anyone. She agreed. He returned her car keys.
The complainant drove the appellant home. The appellant asked the complainant to advise him when she arrived home.
Complaint to Margaret Campbell
After the complainant dropped the appellant at his home, she was “hysterically crying” and hyperventilating. She pulled the car over. She attempted to contact a cousin and a friend in Melbourne but failed. She continued driving, then pulled over again. She recommenced driving and pulled over “further down the road”. She called her friend Margaret, who answered.
The complainant “started bawling [her] eyes out”. Through tears, she spoke to Margaret, attempting to explain what had happened. Margaret’s mother came to the telephone. The complainant declined their offer to take her to hospital. Subsequently, she regretted breaking her promise to the appellant that she would tell no one.
Margaret Campbell gave evidence that, when the complainant contacted her in the early hours of Saturday, 28 April 2018 she was very upset. She was hyperventilating and was incomprehensible. After crying for five minutes, the complainant told Margaret that “I said no, I said no, he stuck it in me. I said no” and “I said no. He just stuck it in. I couldn’t do anything”. She said that she had given the appellant “a hand job” and that he had then tried “to do stuff to her which she felt uncomfortable”. She said that the appellant had “started to finger her to which she said no” and “then he went down and she said no and then it became extremely forceful and he had tried to have sex with her and she just started crying again and just said no”. The complainant told her that, before she had rung her, she had attempted to contact a friend or cousin (Jeff or Judith (pseudonyms)). Margaret told her mother about the disclosure.
At 2:25 AM, the complainant and Margaret exchanged text messages in which the complainant stated, “I can’t stop shaking … and crying and it’s so hard to breathe properly”.
In response to Margaret’s request that she do so, at 2:43 AM the complainant sent a text message to Margaret saying that she had arrived home safely.
After the complainant arrived home
The complainant gave evidence that, after she arrived home, she communicated with the appellant via Snapchat. The appellant apologised to her, stating that he had not thought that she was serious and that he thought she was “just being a tease”. He also asked her whether she thought that it had been rape and requested her to tell him if she tells anyone. She reassured the appellant that she would tell no one. The messages were not retained.
The following morning at about 7 AM, the complainant messaged Margaret, telling her not to worry about coming over.
Complaints to the complainant’s mother and father
The complainant gave evidence that, at about 9 AM, her mother had come into her room. Her mother asked, “What’s wrong? Your eyes are puffy”. The complainant explained her appearance by saying that she had watched a sad movie. Her mother suggested that they go out for breakfast. While they were having breakfast, Mrs Campbell telephoned the complainant and asked whether she had told her mother yet. The complainant started crying. She hung up the phone.
After the complainant hung up the phone, Mrs Campbell attempted to call the complainant’s mother. The complainant told her mother not to answer. The complainant then told her mother that the appellant had “made me have sex with him”.
The complainant’s mother gave evidence that earlier that morning, she had heard the complainant on the phone, crying while she was speaking to her friend Judith. About half an hour later, the complainant had asked whether they could go out to breakfast.
The complainant’s mother said that, while they were having breakfast at a café, the complainant had become tearful. The complainant then told her that the appellant had “raped” her. She said that she and the appellant had been kissing “and then he pulled her pants, her pyjama or tracksuit pants, off her and she was saying ‘No, no, no’” and that she “just lay there and cried and tried to push him off her but he was too powerful for her”.
The complainant’s mother contacted the complainant’s father and asked him to meet them at home. She asked the complainant to tell her father what had occurred. The complainant told her father that the appellant had “made me have sex with him”.
The complainant’s father gave evidence that, when he had arrived home, the complainant had told him that “[the appellant] forced himself on her that night” but had not gone into detail. He had become enraged.
According to the complainant, her father had threatened to go to the appellant’s house. She had become upset and begged him not to go.
Later, the complainant’s father obtained the appellant’s telephone number and agreed to the complainant being with him when he telephoned the appellant.
By that stage, Margaret was at the complainant’s home. Margaret said that she had arrived between 10 AM and 12 PM.
The Snapchat message to the appellant
The complainant sent a Snapchat message to the appellant concerning what she had told her parents, including:
… I told her that I was using my hand and mouth and you had used your hand and that you asked if we could have sex and I said no because you’ve been drinking and that you ended up on top of me and you were just moving up and down and whenever I felt it was about to go in I told you no and to stop and then you went down to use your head but I pushed your head away and you came back up and we kept kissing and going on with that and then you put it in and I said no a few times then you didn’t so I just stop saying and lied there but then you stopped and realised I was actually being serious when I said no and stop.
(Emphasis added)
She photographed this message shortly before 1 PM on Saturday, 28 April 2018 (Exhibit P1).
In cross-examination, she denied sucking the appellant’s penis on the night in question and said that the reference to using her mouth would have been a reference to using her mouth to spit on his penis for lubrication, as she had done on other occasions.
The first text complaint to Greg
At about 12:55 PM on 28 April 2018, the complainant communicated by text with Greg, a friend, regarding what had occurred and her feelings. Among other things, she said:
i’m just confused.
like I said no over and over again and push him off and told him to stop
but he said he misunderstood
I just stopped saying no and stop and lied there while he was doing it and then he stopped after a while and said sorry heaps and started hitting himself saying he fucked up over and over again
I just feel really sick
it’s so hard to explain I feel like guilty and dirty [I don’t know] how to say it
Telephone call with the appellant’s mother
Evidence of prosecution witnesses
On the afternoon of Saturday, 28 April, the complainant’s father telephoned the appellant and spoke to his mother on speakerphone, while the complainant was standing beside him. He adopted a belligerent tone.
Because of the emotional state of the complainant’s father at the time of the telephone conversation and the passage of time since the conversation, when he gave evidence, he had little recall of the conversation.
The complainant gave evidence that, over the speaker, she heard the appellant’s mother tell her father that she understood that “[the complainant] freaked out halfway through and [the appellant] stopped”. Her father became angry.
Because of her father’s intemperate behaviour, the complainant took the telephone and walked away from her father. She apologised for her father’s extreme behaviour. She recounted her version of events to the appellant’s mother, who observed that the difference in the versions was that the appellant had “said that you never said no”. The complainant told the appellant’s mother that she “definitely made herself clear”. The complainant told her that she “had a Snapchat of him saying that [she] had said no”.
According to the complainant, the appellant’s mother had said, “He’s just told me that he did know you said no. I didn’t know that before” and “You’re going to ruin life if you go to the police”. Referring to the appellant’s football career, the appellant’s mother said that she needed to know whether the complainant intended to report the matter to police, and the complainant said that she did not.
In cross-examination, the complainant agreed that the appellant’s mother had told her that she understood that the sexual activity was “just for a few seconds”. The complainant stated that she was trying to “play it down” as she still did not know what she wanted to do. The complainant agreed that she had told the appellant’s mother, “no, I’m not saying he’s a rapist” and “I don’t think your son’s a rapist” and had described the appellant as “a nice guy”. When the appellant’s mother asserted, “You were comfortable, you were happy with it”, she responded, “To an extent, pretty much”. The appellant’s mother then told her “to be very clear” about what she was saying, because it was a “big deal”.
Margaret Campbell was present at the complainant’s house at the time of the telephone conversation and stayed overnight. She stated that, after the phone call with the appellant’s mother, the complainant seemed quite taken aback and frightened. The complainant told her that “I did eventually let him do things to me”, referring to “stuff like finger her” and that “although she said no to that she told me that she eventually just laid there while he was fingering her”. Margaret said that, when speaking to her after the telephone conversation, the complainant had “stuck by saying no to having sex”, but also said “I could have done more. … Maybe he got the wrong impression”.
Evidence of the appellant’s mother
In her evidence, the appellant’s mother agreed that, during a telephone conversation, the complainant had sounded upset and had been very apologetic. The appellant’s mother said that she had told the complainant’s father that her son had reported trying to have sex, putting his penis in, and removing it straight away because it was awkward.
The appellant’s mother gave evidence that the complainant had agreed that she had been “happy” with what had occurred, and that it had occupied “a very short few seconds” before stopping. The complainant said that the appellant had not “forced her or hurt her” and agreed that she had removed her own underwear. The complainant said that the appellant was “her friend”, “a good guy”, and “not a rapist”. She denied that there had been any conversation about football or that she had said that the complainant would ruin the appellant’s life.
Further text communication with Greg
After the telephone conversation, there was a further text conversation between the complainant and Greg, in which she told him what had happened during the telephone call and discussed her feelings. Among other things, she stated:
dad rang him and spoke to his mum then I spoke to his mum and just told her what happened
and then she just wanted to know if we were going to the police or not and I told her we wouldn’t.
When asked what the appellant’s mother had said, the complainant stated:
i don’t even remember she just wanted to know everything that happened it was so awkward to explain
In relation to her feelings, she said:
i liked him so much
and now it’s all ruined and [I don’t know] what to do
or think or feel or say
like it’s hard to explain
Greg told her that her father wanted him “to do something about this” and inquired whether she wanted him to do anything about it. She replied:
nah it’s okay dad’s just mad don’t listen to him
Sometime after about 1 PM on 28 April, the complainant blocked the appellant on social media.
Hospital attendance—further complaint and declining forensic examination
On Sunday, 29 April 2018, the complainant and her mother attended hospital. The medical record refers to a complaint of alleged sexual assault early on Saturday morning and recorded that the complainant “states that sex was not consensual”. Further, the complainant “refuses to take legal actions against offender – AFP or sexual assault group involvement”.
No samples were taken because the complainant declined a forensic examination.
The complainant gave evidence that, although she had realised that a forensic examination may have provided corroboration, she had declined an examination because she had not wanted the matter reported to police; she had not realised that a forensic examination and a police report were different processes.
The complainant’s mother understood that the complainant had declined a forensic test because “she thought that they meant the forensic police come in” and she didn’t want to involve the police at that stage.
The complainant believed that her parents wanted her to report the matter to police.
Police report on 8 May 2018 and subsequent police action
On Tuesday, 8 May 2018, the complainant reported the incident to Gungahlin Police Station. The Australian Federal Police case note of 8 May 2018 states that the complainant said that she and the appellant had started kissing, he had asked to have sex, she had said no, he had pulled her pants off, she had told him to stop, he had stopped but they had kept kissing, then he had pulled up her onesie, taken off her underwear, and penetrated her vagina.
On 30 May 2018, the police conducted an evidence-in-chief interview with the complainant.
The informant police officer gave evidence that, on 14 June 2018, the complainant’s mother had indicated that the complainant was unsure about whether she wanted to proceed with the complaint.
On 14 August 2018, the complainant’s phone was given to police.
On 7 September 2018, the complainant’s mother said that the complainant did wish to proceed.
False assertions about forensic evidence and the search for a forensic report template
The appellant’s friend, Charles Bannister (a pseudonym), said that, in mid-July, when drunk and crying at a party, the complainant had told him “your mate raped me”. She had said that the appellant had punched her, that there was evidence of his ejaculate inside her, and that blood had been found on the back seat of her car. She had said that her father would pay someone $5,000 to break the appellant’s legs and asked whether he would like to do so.
On 15 August 2018, Charles sent an Instagram direct message to the complainant in which he stated, “U know [no] one believes u and ur getting a bad name about it”. The complainant replied that she did not care what people think and that “ive got the evidence I need now anyways”. By “evidence”, the complainant meant a forensics report.
In cross-examination, the complainant agreed that, in the week before she gave police her phone for the forensic download, she had done a Google search on her phone for a sexual assault forensic examiner report template because she had wanted to fabricate evidence to convince her friends that there was forensic support for her allegations; she had wanted “the conversation dropped about me lying about it”.
In further messages at a different time, Charles asked the complainant, “Is that shit with [the appellant] true apparently it’s not”. She replied: “I wouldn’t lie about this … Ive gone to the police and hospital to get the forensic test …”. Later in the exchange, the complainant asserted that she had evidence of “trauma to my private area and his cum was in me”.
On 7 September 2018, when the complainant gave some messages to the police, she withheld messages with Charles which referred to the existence of forensic evidence. She conceded that she had done so deliberately because she had not wanted the police to know that she had lied about available evidence; she had been worried that they would doubt her truthfulness.
In cross-examination, the complainant conceded that she may have told Charles that the appellant’s ejaculate had been found inside her, that there was a “forensics report” and that her father would pay someone to break the appellant’s legs. The complainant denied telling him that the appellant had punched her, that blood had been found in the car, or proposing that Charles break the appellant’s legs. She agreed that, when she had been drunk and upset at a party, she had said that she wished that something bad would happen to the appellant.
Charles gave evidence that, in December 2018 during “coasties” at Batemans Bay, the complainant and three friends had arrived uninvited to a party at Edmond’s house. After the complainant was asked to leave, she had screamed “your mate’s a rapist” who would go to jail. Soon afterwards, the front window of the house had been smashed.
In cross-examination, the complainant said that she had been invited to a party by Charles but, when she and her boyfriend had arrived at the party, she had been told to leave. As they departed, the appellant’s friends followed her, called her names such as “slut” and accused her of lying. She called out “your mate’s a rapist”. She was hit by someone and ended up under a bridge, and was attended by an ambulance.
The complainant agreed that she had told her mother that she had been attacked by the appellant’s friends and hospitalised.
On 19 December 2018, the complainant’s mother reported to the police that the complainant had been “bashed” by the appellant’s friends and had been in hospital overnight.
The complainant’s father agreed that, when speaking to the appellant’s father, he had made threats against the appellant, including a threat to kill him. However, he denied that he had offered anyone $5,000 to assault the appellant.
The appellant’s evidence
The appellant gave evidence at the trial.
He said that, on three occasions, he and the complainant had engaged in sexual activity at Mount Ainslie. On the first occasion, they kissed, and he “fingered” the complainant. On the second occasion, the complainant gave him a “hand job” and he “fingered” her. At his suggestion, the complainant enthusiastically performed fellatio on him, and he ejaculated in her mouth. On about 10 or 11 April 2018, they engaged in consensual sexual activity; he digitally penetrated the complainant, and she used her hand on his penis, but they did not engage in fellatio.
On the evening of 27 April 2018, prior to when he was collected by the complainant, he had consumed only four to six drinks. He was not intoxicated.
They decided to park the car near his house, and he directed her to an oval.
After he chased kangaroos and the complainant filmed him doing so, he entered the rear seat of the car. The complainant filmed him from the front passenger seat, and then joined him in the back seat. He removed his shirt.
He did not communicate with his friend Edmond.
In the back seat, the appellant and the complainant engaged in consensual sexual activity, involving mutual kissing and “feeling each other up”. The appellant “fingered” the complainant. The “fingering” and the “hand job” occurred in a “real awkward position”. Each pulled down their own clothes to facilitate mutual masturbation. At the complainant’s suggestion, she engaged in fellatio. At no stage did she spit on his penis. He did not put her hand down his pants; she did so herself.
He asked her whether she wanted to have sex. She replied “yes, I do, but you’ve been drinking”. He said that he was fine, as long as she was. She agreed to have sex, saying “yes, I’m okay with it”. The complainant’s vagina was lubricated. Penetration was very easily achieved; the appellant did not even guide his penis, it just “glided in”. They engaged in penile/vaginal intercourse for, at most, 10 seconds.
He then stopped suddenly “because it just felt real awkward at the time” and he wasn’t wearing a condom. By “awkward” he meant that it was awkward “in his mind”: He maintained his erection after ceasing intercourse. In cross-examination, he agreed that there had been no awkwardness between himself and the complainant during the sexual activities that had preceded penile/ vaginal intercourse.
However, after they stopped having sex, the mood between them was “awkward” and “it didn’t feel right”.
They sat up. Each pulled on their own pants. The appellant climbed into the front seat and the complainant returned to the driver’s seat. They had a general chat for about 40 minutes to an hour. By the time that they left, the mood was “normal”. She drove him home.
At no stage did the complainant say “no”, cry, scratch him, or push him. He did not ask whether he could “lick her out”, and he did not attempt to do so and, in the process, lick her inner thigh. He did not withhold car keys from her; they remained in the centre console. He did not say “I can’t hear you”. Previously, once or twice, they had discussed when they might start having sex, but they had not engaged in it.
When the complainant dropped him at his house, she was “a bit quiet”. He asked whether she was okay. She replied that she was okay, adding “it’s just not how I wanted it to happen”. They hugged and kissed. He asked her to contact him when she arrived home so that he would know that she had arrived safely.
The appellant denied receiving or sending Snapchat messages in the early hours of 28 April, sending a Snapchat message saying “do you think it’s rape?”, or “I thought you were teasing me by saying no”.
After he woke up later in the morning, he exchanged Snapchat messages with the complainant, who repeated “it’s just not how I wanted it to happen”. The complainant said that she intended to tell her mother that they had had sex. She told him that he should tell his parents as her father would be calling him. In cross-examination, he said that he was “very shocked” because, as far as he was concerned, there was absolutely no reason for the complainant to tell her parents what had occurred.
He told his mother that he had had sex but that it had lasted only a few seconds before he had stopped because it was “awkward”, and he had not been wearing a condom.
He denied that he had ever received a Snapchat message similar to the message in Exhibit P1. He suggested that the display name may have been changed and the message had not been sent to him.
When shown a Snapchat video (Exhibit D8) of him lifting his waistband and photographing his penis, he denied that he had been doing so, saying that he had been “taking a photo from [his] shoulders down”.
The trial judge’s reasons
In the reasons for decision, under the heading “Assessment of the evidence”, the trial judge assessed the evidence of various witnesses.
In relation to the complainant’s evidence, at [161]–[168], the trial judge addressed the various challenges to the complainant’s credibility. His Honour described the complainant’s demeanour as “impressive, particularly during the course of her cross examination”, when she had given very clear and responsive answers without defensiveness. He observed that the complainant had been willing to make admissions about engaging in conduct that might be seen as damaging to her credibility. He described the complaint evidence as “very strong” (presumably, a reference to the complaint evidence providing strong support for the complainant’s credibility).
In relation to the appellant’s evidence, after referring to the appellant’s good character, his Honour stated (at [188]–[191]):
188.The accused was not a particularly impressive witness. However, I remind myself not to place too much weight on his demeanour in the witness box or the manner in which he gave his answers, as opposed to the content of those answers. His denial that he was taking a photograph of his penis or holding his pants open in the Snapchat video within exhibit D8 did not reflect well on his credibility.
189. …
190.On the central issue in the case, the accused said that the complainant positively agreed to sexual intercourse, which then commenced but stopped after about 10 seconds because “it just got real awkward”. He then withdrew his erect penis and put his pants back on. He then said that the two of them spent 40 minutes having a general chat. This version of events seems to me to be positively implausible. There was no adequate explanation of why matters “got real awkward” or why a fully aroused 17-year-old boy who had been engaging in mutual masturbation would cease intercourse after 10 seconds with a young woman who, on his version, was fully consenting. The reference to the absence of a condom seems to me to be an ex post facto rationalisation which did not fit with the assertion that there had been an explicit conversation earlier about sexual intercourse. I do not accept the accuracy of the evidence given by the accused about what occurred in relation to the sexual intercourse.
191.Because of my rejection of his evidence on the central issue as to consent to, the nature of and duration of sexual intercourse, his other evidence about matters going to the complainant’s credit, such as the performance of fellatio at Mount Ainslie, do not cause me to have a doubt about the accuracy of the complainant’s version of events.
Under the heading “Conclusion and findings”, at [195]–[203], the trial judge stated:
195.I accept beyond reasonable doubt the evidence of the complainant that the sexual intercourse occurred without her consent. That evidence was consistent with her conduct, including her complaints to Ms Campbell, her parents and Mr Brown after the incident. It is also consistent with the attitude that she had previously demonstrated to Ms Peters.
196.I have rejected the accused’s evidence about the critical events in the car. That evidence does not cause me to have a doubt about the complainant’s evidence that she did not consent and did not have a conversation in which she indicated that she consented either to sexual intercourse or to being “licked out”.
197.I accept beyond reasonable doubt the complainant’s evidence that the accused requested that they have sexual intercourse and that she said no. I accept that he asked if she wanted to be “licked out”, that she declined and that he went down as if to do so and licked her thigh. I am satisfied that this was indecent in the relevant sense. Because I am satisfied that the complainant had declined the offer made by the accused, I am satisfied beyond reasonable doubt that she did not consent to the licking of her thigh and that the accused was as [sic] least reckless as to her lack of consent. I am satisfied that each element of count 1 has been proven beyond reasonable doubt.
198.I am satisfied beyond reasonable doubt that sexual intercourse did occur. That finding is uncontroversial having regard to the evidence of the accused.
199.I accept the complainant’s evidence that, following on from the mutual masturbation, the accused was positioned over her and penetrated her vagina, and that she said “No” or otherwise verbally indicated that she did not want this to occur. I accept her evidence that he penetrated her vagina again and that once again she said “No” or otherwise verbally indicated that she did not want this to occur.
200.I do have a doubt about the complainant’s evidence as to the duration of the sexual intercourse. Her evidence ranged from it being a couple of minutes through to 10 minutes, but most consistently fixed on the period of 10 minutes. The doubt that I have arises from the absence of a coherent explanation of what might have been occurring during that 10 minutes which would also be consistent with the accused desisting from further intercourse when he observed the complainant to give up and cry. I accept the complainant’s evidence about giving up, turning away and crying beyond reasonable doubt. I have a doubt about her explanation of what was occurring during the period of intercourse prior to that, as her description of the interaction appears to be inconsistent with the enthusiasm of the accused waning so decisively when he observed her to be crying.
201.I am satisfied beyond reasonable doubt that the intercourse continued for a period until the complainant turned her head and started crying, after which the intercourse continued only for approximately a further 20 seconds. During the period prior to the complainant turning her head and crying, I have a doubt as to whether the accused deliberately used force upon her for a period of minutes. There is no doubt that he was on top of her, was stronger than her and was in a position to exercise a degree of physical control over her during the intercourse. However, I have a doubt as to whether he deliberately used that strength to subdue her.
202.I am satisfied beyond reasonable doubt that the accused was reckless as to the complainant’s consent. She had previously declined to have sexual intercourse with him. She is not taken to have consented to sexual intercourse because she was prepared to engage in mutual masturbation or even perform fellatio on him. I am satisfied beyond reasonable doubt that the previous refusal of consent, and the absence of express consent immediately prior to intercourse, gave rise to a possibility in the accused’s mind at the point where he first penetrated her that the complainant was not consenting. After he had penetrated her, she indicated her lack of consent and the continuation of the intercourse at that point was at least reckless. My finding is at least recklessness, because there is a possibility that he was prepared to discount her statements that she did not consent. However, I am satisfied beyond reasonable doubt that he recognised the possibility that she was not consenting.
203.At the point where the complainant simply gave up and cried, the attitude of the accused changed and he ceased to have sexual intercourse. He was not prepared to continue the sexual intercourse when it became obvious to him that the complainant was upset to the point of tears. I am satisfied beyond reasonable doubt that the accused then recognised that he had gone too far and had proceeded in circumstances where the complainant had not consented to the sexual intercourse. It is that which provides the reason, consistent with the complainant’s evidence, for him wishing to discuss what had occurred with her, in the hope of reducing or eliminating any upset on her part and thereby protecting his own interests.
Appellant’s submissions
The submissions addressed the following questions.
(1)The s 144 question. Can a trial judge take into account that “a fully aroused 17-year-old boy who had been engaging in mutual masturbation” may be disinclined to terminate penile/vaginal intercourse after 10 seconds when assessing whether the appellant lied about why he terminated intercourse with the complainant? Is such a consideration a matter of general “common knowledge” in relation to which s 144 of the Evidence Act requires that a party be given the opportunity to make submissions and refer to relevant information?
(2)The gender stereotyping question. Did the trial judge err by making an impermissible gender stereotyped assumption about the ability of aroused 17-year-old boys to control their sexual urges which fed into his Honour’s rejection of the appellant’s evidence on the critical issue of consent?
(3)The appellant’s evidence. Having regard to any errors in the approach of the trial judge to the assessment the appellant’s credibility, did the Crown eliminate the reasonable possibility that the appellant’s evidence on the critical issues was true?
(4)The onus of proof question. Did the trial judge misapply Liberato by using the appellant’s evidence to bolster the Crown case, particularly at [190] where his Honour observed that the appellant had provided “no adequate explanation” for why events had unfolded in the manner in which he asserted that they had unfolded? In substance, did the trial judge merely prefer the complainant’s evidence to the that of the appellant?
(5)The complainant’s evidence. Did the trial judge err in his assessment of the complainant’s credibility by treating matters that substantially undermined her credit as “collateral issues” (at [164])?
If successful, the ground that raises s 144 of the Evidence Act 2011 (ACT) (Evidence Act) may support an argument that there has been a miscarriage of justice. Alternatively, it may be relevant to whether the verdicts were unreasonable, having regard to the evidence. Consequently, it is convenient to consider the s 144 ground before considering other arguments that may support the unreasonable verdicts ground, either individually or cumulatively.
The s 144 issue
The amended notice of appeal contained the ground that:
The trial judge impermissibly and unfairly introduced evidence into his deliberations that was not before his Honour and upon which no submissions had been made or an opportunity to make submissions was provided to the defence, giving rise to a miscarriage of justice.
This ground referred to a passage at [190] of the judgment, which was said to show reliance on a “common knowledge” fact concerning the sexual behaviour of adolescent boys to reason that, on the occasion of the alleged offences, the appellant behaved in that way.
I have concluded that the trial judge did not use a “common knowledge” fact to reason that a fact in issue was proved. Consequently, s 144 of the Evidence Act had no application.
When cross-examining the appellant, the prosecutor suggested that it was not credible that a 17-year-old boy would cease intercourse after 10 seconds “for no reason”. The defence objected to the prosecutor’s comment, and it was withdrawn.
In closing, the prosecutor invited the trial judge to use his common sense and ordinary knowledge of human affairs when assessing the appellant’s evidence:
On his version, this was the night they first had consensual sex. Both were apparently aroused, fully consenting, there was no interruption, nothing awkward was said or done and yet, it stopped after 10 seconds. Part of his reason for this was no condom. They didn’t move on to do anything else though … He couldn’t really explain what it was that caused that moment to become awkward.
The defence did not criticise the submission.
The trial judge directed himself to use his common sense, experience, and wisdom when assessing the evidence given by the witnesses: at [18]. The appellant complained about that direction neither at the trial nor on the appeal.
As noted at [109] above, in the section in the reasons for decision devoted to “assessment of the evidence”, at [187]–[191] his Honour assessed the appellant’s evidence. At [187], his Honour took good character into account. At [188], his Honour referred to the appellant’s demeanour, finding that he was “not a particularly impressive witness”. At [189], his Honour referred to the limited areas of factual dispute.
At [190], the trial judge said:
On the central issue in the case, the accused said that the complainant positively agreed to sexual intercourse, which then commenced but stopped after about 10 seconds because “it just got real awkward”. He then withdrew his erect penis and put his pants back on. He then said that the two of them spent 40 minutes having a general chat. This version of events seems to me to be positively implausible. There was no adequate explanation of why matters “got real awkward” or why a fully aroused 17-year-old boy who had been engaging in mutual masturbation would cease intercourse after 10 seconds with a young woman who, on his version, was fully consenting. The reference to the absence of a condom seems to me to be an ex post facto rationalisation which did not fit with the assertion that there had been an explicit conversation earlier about sexual intercourse. I do not accept the accuracy of the evidence given by the accused about what occurred in relation to the sexual intercourse.
The appellant submitted that the behavioural inclinations of aroused 17-year-old males were a matter of “common knowledge” within the meaning of s 144 of the Evidence Act.
Section 144 provides:
144Matters of common knowledge
(1)Proof is not required about knowledge that is not reasonably open to question and is—
(a)common knowledge in the place in which the proceeding is being held or generally; or
(b)…
(2)The judge may acquire knowledge mentioned in subsection (1) in any way the judge thinks fit.
(3)The court (including, if there is a jury, the jury) must take knowledge mentioned in subsection (1) into account.
(4)The judge must give a party the opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge mentioned in subsection (1) that is necessary to ensure that the party is not unfairly prejudiced.
Section 144 addresses facts that were formerly the subject of “judicial notice”. It removes the need for proof of such facts.
In relation to facts the subject of “judicial notice”, in Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460 (Woods) at [64], McHugh J said:
Facts that may be judicially noticed fall into two categories: facts that can be judicially noticed without enquiry and facts that can be judicially noticed after enquiry.
(Emphasis original)
Section 144(4) seems to contemplate that, to ensure procedural fairness, it may be necessary to make an enquiry about any “common knowledge” fact, although only to the extent “necessary to ensure that the party is not unfairly prejudiced”.
In Victorian Women Lawyers v FCT [2008] FCA 983; 170 FCR 318 at [116], French J took judicial notice of the “historical and persisting disadvantage of women in relation to their participation and career advancement within the legal profession”, a “social fact” in relation to which there was no dispute (at least in that case).
The authors of the ALRC Uniform Evidence Law Report 102 considered that s 144(4) could extend to “social facts” i.e. “statements about human behaviour, nature of society and its institutions and social values”: at [17.17] and [17.26].
In Higgins v The Queen [2020] NSWCCA 149 (Higgins), the Court of Appeal found that the trial judge had taken notice of three matters that had not been proved: that, as Dr Geoffrey Edelstein had fallen foul of the law and been deregistered, it was no surprise that his medical records could not be located; a well-established church practice of moving priests from parish to parish when complaints arose about their mistreatment of parishioners; and a widespread, accepted use of corporal punishment in schools in the 1950s and 1960s. At least as to the latter two matters, Payne JA (with whom Bellew and Rothman JJ agreed) found that the trial judge’s failure to comply with s 144(4) had occasioned a miscarriage of justice.
In Woods at [66], McHugh J said:
Facts that have been judicially noticed without enquiry include: that cancer is a major health problem in the community and, despite research, little progress has been made in controlling it; that HIV is a life-endangering disease; that a child victim of sexual assault may be reluctant to resist, protest or complain about the sexual assault, due to fear of punishment or rejection; and that many lawyers now charge hundreds of dollars an hour for their services, that legal aid is often available to litigants in tort cases and that the cost of those services is substantially increased when lawyers cannot give advice to their clients because the law is unpredictable.
(Citations omitted, emphasis original)
But in Woods at [165], Callinan J cautioned against judges drawing their own conclusions about matters of social ethics, psychology, politics, or history for two reasons:
The first is that the parties must be given an opportunity to deal with all matters which the court regards as material. The second reason is that rarely is there any universal acceptance of what is true history, politics and social ethics.
There may be differences of opinion as to whether particular facts may properly be the subject of “judicial notice” (or characterised as “common knowledge” facts). In Elzahed v State of New South Wales [2018] NSWCA 103; 97 NSWLR 898 at [63], after referencing the different perspectives of McHugh J and Callinan J in Woods, the Court observed that the precise limits of permissible judicial knowledge were unclear.
On the other hand, it is indisputable that a factfinder must apply their common sense and the wisdom that they have gained through life experience. In some circumstances (including those in the present case), the application of common sense will include a consideration of “the apparent logic of events”, a decision-making tool that was mentioned with approval in Fox v Percy [2003] HCA 22; 214 CLR 118 at [31].
The application of common sense is one of the greatest perceived strengths of the jury system; that the jury brings to bear the combined common sense, life experience, and understanding of human affairs of its members. In Doney v the Queen (1990) 171 CLR 207 at 214, the Court stated that:
[T]he genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brough to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.
Just as a jury’s combined common sense and human wisdom must be respected by an appeal court, so must that of a trial judge. If factfinders could not use their human wisdom and common sense, it would be better that they were replaced by robotic decision-makers, as it is inevitable that people will use their life experience and common sense when assessing evidence, either consciously or unconsciously.
In Evidence, Proof and Probability (Weidenfeld & Nicolson, 2nd ed, 1983) at 143–144, Richard Eggleston wrote:
Apart from the facts relevant to the particular case, the judge or jury must also make use of his or its general knowledge in order to interpret the evidence. The meaning of the words, and the implications of statements about everyday affairs, can be understood only by a person who has some knowledge and experience of the everyday affairs of life. When we come to deal with probabilities, the judge or juror cannot avoid drawing on his personal experience in deciding whether it is more probable than not that a particular fact exists, or the degree of probability to be attached to a particular assertion of fact. This is not a question of judicial notice, but of the tribunal relying on its own experience as to the ordinary course of human affairs.
At least in theory, there is a clear distinction between a “common knowledge” fact that may be admitted although not proved by evidence, and the application of common sense, life experience and the associated understanding of human affairs to an evaluation of evidence in the process of fact-finding. A factfinder’s personal history may or may not inform a “common knowledge” fact (for example the “common knowledge” facts in Higgins). However, their common sense, life experience and general understanding of human affairs will inform their evaluation of evidence for the purpose of finding facts.
In this case, there was no dispute that the complainant and the appellant were adolescents, that penile/vaginal intercourse was preceded by consensual sexual conduct, that the appellant commenced penile/vaginal intercourse but stopped partway through, or that the appellant withdrew his erect penis and then spent 40 minutes chatting with the complainant, rather than pursuing further consensual sexual conduct that did not invite the use of a condom and had not previously led to feelings of “awkwardness”.
The appellant said that, although the complainant had consented to penile/vaginal intercourse (freely and voluntarily agreed to those particular acts of intercourse), he had terminated the intercourse because it had “got real awkward” and he had become aware that he was not using a condom.
It was in that context that, at [190], the trial judge applied the direction that he had given himself at [18]. His Honour did not use his experiences concerning the general behaviour of sexually aroused 17-year-old boys as a fact from which he inferred that the appellant had behaved in that way, i.e. did not treat such behaviour as a “common knowledge” fact. Rather, his Honour used his common sense and knowledge of adolescent affairs to assess the veracity of the appellant’s assertion that, although the complainant was consenting, he had called a stop because he was feeling “awkward” and was not wearing a condom; it was not because the complainant was crying, and he realised belatedly that she was not consenting (that “no” did not mean “yes”). Common sense suggested to the trial judge that, in the context of the preceding and subsequent events, a sexually aroused teenager may well not trouble themselves about the “awkwardness” of the situation or pause mid-intercourse to reflect on whether it was wise to proceed without a condom. Common sense suggested that the appellant’s evidence concerning consent was untrue.
Having found that there is no substance to the s 144 appeal ground, I now turn to the first ground, which alleges that the verdicts were unreasonable having regard to the evidence and the trial judge’s failure to adhere to the “Liberato direction”.
Verdicts unreasonable or unsupportable having regard to the evidence
The unreasonable verdicts ground of appeal invokes s 37O(2)(a)(i) of the SCA, which provides that the Court must allow an appeal against conviction if it considers a verdict to be unreasonable or unsupportable, having regard to the evidence.
The principles that govern an appeal court’s consideration of a jury verdict apply to a consideration of a verdict in a trial by judge alone. Section 68C of the SCA provides:
68CVerdict of judge in criminal proceedings
(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3)In criminal proceedings tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict.
The s 68C(1) reference to “finding” is a reference to the ultimate finding of guilt or otherwise, not the findings of fact leading to the ultimate finding: Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou) at [6] per French CJ, Bell, Keane and Nettle JJ; Gageler J at [80].
Filippou dealt with an appeal court’s consideration of a trial judge’s reasons in a trial by judge alone. The Court (the plurality at [12], Gageler J at [82]–[83]) held that a trial judge’s finding of guilt is not to be disturbed:
… unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice.
(Footnote omitted)
On an appeal alleging unreasonableness, the appeal court must review the whole of the record of the trial and make an independent assessment of the evidence, both as to its sufficiency and its quality. The task of the appeal court is to determine whether, upon the whole of the evidence, acting rationally, the factfinder must (as opposed to might) have entertained a doubt as to the appellant’s guilt: M v The Queen (1994) 181 CLR 487 (M), Libke vThe Queen [2007] HCA 30; 230 CLR 599 per Hayne J at [113], Pell v The Queen [2020] HCA 12 at [43], Coughlan v The Queen [2020] HCA 15.
It is only if it was “not reasonably open” to the jury (here, the judge) to be satisfied beyond reasonable doubt of the commission of the offence that a verdict of guilty cannot stand.
The assessment of the reasonableness of a verdict should not be piecemeal in nature: Esposito (a pseudonym) v The Queen [2020] VSCA 245 at [52].
An appeal court must respect the trial judge’s assessment of the witnesses. In M at 491, Mason CJ, Deane, Dawson and Toohey JJ stated:
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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
In Filippou at [83], Gageler J stated:
In some cases of an appeal against a conviction following a trial by judge alone, consideration of the first limb [of s 6(1) of the Criminal Appeal Act 1912 (NSW) – verdicts unreasonable or cannot be supported having regard to the evidence] will require the court of Criminal Appeal to review for itself the totality of the evidence so as to form its own assessment of whether or not it was open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty without any regard to the reasons for judgment of the trial judge … In a case where the argument in the appeal against conviction is that there are particular reasons why it was not open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty, it may be open to the Court of Criminal Appeal to discharge its appellate function under the first limb by reviewing the evidence and forming its own independent assessment of that evidence to the extent necessary to engage with that argument while adopting, without the need for independent assessment, other intermediate findings of fact of the trial judge about which no complaint is made in the appeal. But having adopted the intermediate findings of fact of the trial judge about which no complaint is made, and having arrived at its own conclusion on the evidence to the extent necessary to engage with a particular argument, the question for the Court of Criminal Appeal in such a case will remain whether or not the Court of Criminal Appeal has a reasonable doubt about the ultimate finding of guilt which cannot be resolved by taking into account the trial judge’s advantage in seeing and hearing the evidence.
The appellant argued that, individually and cumulatively, various matters established that the verdicts were unreasonable. I will now consider those matters by addressing questions (2) to (5) in [111] above.
The gender stereotyping question
Contrary to the appellant’s submission, the trial judge did not make an impermissible gender stereotyped assumption about the ability of aroused 17-year-old boys to control their sexual urges and did not, on that basis, infer that the appellant had been unable to control his sexual urges.
First, there was no relevant gender stereotyped (or, for that matter, age stereotyped) “assumption”. For example, we do not know what the trial judge’s common sense and life experience told him about the conduct of 13-year-old adolescents of various genders or 16-year-old adolescent girls. The trial concerned a 17-year-old boy who was admittedly sexually aroused, and that is the matter to which the trial judge addressed himself.
Second, the trial judge did not reason from an assumption that the appellant had behaved in accordance with the assumption. On the evidence, the appellant was able to control his sexual urges; by all accounts, he voluntarily ceased penile/vaginal intercourse partway through.
The trial judge simply applied his common sense and life experience, looking at the context and the individual appellant, when considering whether the appellant’s evidence about consent might possibly be true.
Other submissions concerning the appellant’s evidence
Among other things, the appellant contended that, in fairness, the prosecutor should have given him the opportunity to answer the suggestion that his evidence that he had ceased penile/vaginal intercourse because of “awkwardness” and a realisation that he was not wearing a condom was untrue (that it was a fabrication and/or a recent invention).
There is no substance to the contention.
It was abundantly clear that the prosecution case was that the appellant’s evidence concerning his reasons for ceasing intercourse was untrue. He was cross-examined about his assertion that he felt “awkward” despite the preceding consensual sexual conduct, the ease with which penetration was achieved, and the maintenance of an erection. The prosecution case concerning non-consensual intercourse and the surrounding events was put to the appellant in detail. It was put that, when he engaged in penile/vaginal intercourse, the appellant was “pushing the envelope because this was the first time that the two of you had had sex” and that he “just kept going [thinking that] she would just get used to it and change her mind”.
The prosecutor did not need to further explore the proposition that the appellant was lying, or—as was suggested by the appellant—use terms such as “fabrication” or “recent invention” to describe the lies.
The trial judge found the appellant to be an unimpressive witness. In this regard, his Honour had a critical advantage which this Court does not enjoy. His Honour considered that the appellant’s denial that he had held his pants open to take a photograph of his penis in a Snapchat video (a “dick pic”, part of Exhibit D8) reflected poorly on his credit: at [188]. Having applied his common sense and life experience, his Honour found the substance of the appellant’s account of the key events to be “positively implausible”.
Witness assessment is a dynamic process that is best entrusted to the factfinder who is immersed in the unfolding trial. It was well open to the trial judge to conclude that the prosecution had eliminated the possibility that the appellant’s evidence on the critical issues was true.
Application of the Liberato direction
The appellant submitted that, while the trial judge had directed himself correctly concerning the onus of proof and had given himself a “Liberato direction” at [23], he had not applied the Liberato direction. Rather, he had simply preferred the complainant’s evidence to that of the appellant. In particular:
(a)In stating at [190] that there was “no adequate explanation” as to why the appellant would have ceased intercourse, the trial judge had come “perilously close to reversing the onus of proof”.
(b)Of itself, the rejection of the appellant’s evidence about consent should not have led to rejection of his other evidence, some of which was corroborated.
(c)In stating at [196] that the appellant’s evidence did not cause him to doubt the complainant’s evidence about lack of consent, the trial judge used his rejection of the appellant’s evidence to bolster the credibility of the complainant, rather than putting the appellant’s evidence to one side when considering whether to accept the complainant’s evidence on the critical issues beyond reasonable doubt.
If a factfinder rejects an accused person’s account of important matters as not reasonably possible, then, at least in so far as it has been rejected, that account must be put to one side. Rejection of the accused’s account cannot be used to bolster the prosecution case.
It is never appropriate for a trial judge to frame the issue as involving a choice between conflicting prosecution and defence evidence; in a criminal trial, the issue is always whether the prosecution has proved the elements of the offence beyond reasonable doubt: De Silva vThe Queen [2019] HCA 48; 268 CLR 57 at [9] (De Silva). If the accused’s account is rejected, the factfinder must proceed to assess whether, on the evidence that they do accept, the critical facts are proved beyond reasonable doubt: Liberato v The Queen (1985) 159 CLR 507 (Liberato) per Brennan J at [11]; De Silva at [9]–[12]. A “Liberato direction” serves to clarify and reinforce directions on the onus and standard of proof: De Silva at [10].
In De Silva at [12], the Court proposed the following Liberato direction:
(i) if you believe the accused’s evidence (if you believe the accused’s account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
When assessing the appellant’s credibility, among other things, at [190], the trial judge stated:
[The appellant’s version] of events seems to me to be positively implausible. There was no adequate explanation of why matters “got real awkward” or why a fully aroused 17 year old boy who had been engaging in mutual masturbation would cease intercourse after 10 seconds with a young woman who, on his version, was fully consenting. …
From the context in which the trial judge referred to “no adequate explanation”, his Honour was not suggesting that there was an onus on the appellant to provide a credible explanation. Rather, in the part of the judgment that was devoted to witness assessment, his Honour was explaining why he rejected the appellant’s account of what had occurred in relation to penile/vaginal intercourse.
The appellant did not fully develop his submission that the rejection of the appellant’s evidence about consent should not have led to rejection of his other evidence, some of which was corroborated. The submission was unclear about what other relevant evidence was rejected or how rejection of other evidence may have been material to the outcome of the trial.
At [195]–[196], the trial judge said:
195. I accept beyond reasonable doubt the evidence of the complainant that the sexual intercourse occurred without her consent. That evidence was consistent with her conduct, including her complaints to Ms Campbell, her parents and Mr Brown after the incident. That is also consistent with the attitude that she had previously demonstrated to Ms Peters.
196. I have rejected the accused’s evidence about the critical events in the car. That evidence does not cause me to have a doubt about the complainant’s evidence that she did not consent and did not have a conversation in which she indicated that she consented either to sexual intercourse or being “licked out”.
The comment in [196] did not support, but rather followed, the trial judge’s conclusion in [195] that the complainant’s account should be accepted beyond reasonable doubt. Earlier in the judgment, his Honour had comprehensively addressed the matters that may have undermined the complainant’s credibility; the appellant’s lack of credibility was not one of those matters. At [196], the trial judge was reiterating that there was no reasonable possibility that the appellant’s account about the critical events was true; consequently, the appellant’s account had not caused him to doubt the complainant’s account. His Honour was not suggesting that the appellant’s lies bolstered the complainant’s credibility.
His Honour correctly applied the onus of proof, including the Liberato direction.
Asserted defects in the complainant’s evidence
The appellant’s principal contention was that the verdicts were unreasonable because, having regard to deficiencies in the complainant’s evidence which undermined her credibility, it was not reasonably open to the trial judge to be satisfied beyond reasonable doubt about the element of lack of consent; at [164], the trial judge wrongly characterised the deficiencies as merely “collateral issues”.
The appellant relied on the following deficiencies:
(a)A conflict between the evidence of Margaret Campbell, whose evidence the trial judge accepted, who said that the complainant had told her that, on the night in question, the appellant had engaged in digital penetration without the complainant’s consent, and the complainant’s evidence that she had consented to digital penetration.
(b)Unsatisfactory statements by the complainant about whether she had previously performed fellatio on the appellant and whether she did so on the night. The complainant denied that she had previously performed fellatio but, in cross-examination, she said that, although she did not recall engaging in fellatio on a previous occasion, she “may have” done so. In the Snapchat message sent at 12:57 PM (Exhibit P1), the complainant said that she had used her “hand and mouth” on the night in question, which she said was a reference to her spitting on the appellant’s penis to facilitate the “hand job”.
(c)Statements made by the complainant to the appellant’s mother that were consistent with consent. In cross-examination, the complainant agreed that she had told the appellant’s mother that the appellant was “not a rapist” and had said “I’m not saying he raped me … at that time I didn’t know what was going on”. According to the appellant’s mother, the complainant also agreed that she had been “happy” with what had happened.
(d)Intention to fabricate a forensic report. In August 2018, the complainant decided to fabricate a sexual assault forensic examination report for the purpose of showing other people that there was forensic support for her allegation of sexual assault. She undertook an Internet search for a template.
(e)False statements to Charles. According to Charles, at a party, the complainant had told him that the appellant had punched her and there had been blood in the car. The complainant lied to Charles about having forensic evidence that supported her complaint and, on or around 15 August 2018, she messaged him:
I wouldn’t lie about this …
ive gone to the police and hospital to get the forensic test …
… I had trauma to my private area and his cum was in me if I decide to go forward with it.
(f)The complainant deliberately withheld the messages between herself and Charles (Exhibit D2) from the police when she disclosed other messages (Exhibit D1).
(g)The complainant made a false complaint to her mother about the event in late 2018 during “coasties” at Batemans Bay, saying that she had been attacked by the appellant’s friends, knocked out and found face down in a creek.
(h)In the evidence-in-chief interview, the complainant did not mention that she had been to Mount Ainslie with the appellant. She said that she had never used her hand on his penis but, in cross-examination, she agreed that she had done so (on 16 March 2018).
(i)When the complainant first spoke to police on 8 May 2019 (Exhibit P7), she said that the appellant had removed her clothes after she had said “stop”, but in cross-examination, she said that it had been consensual.
(j)The complainant did not agree to have a swab taken when she went to the hospital.
The trial judge identified most of these matters as relevant to an assessment of the complainant credibility as a witness: at [164].
(a) Complaint to Margaret Campbell and the complaint evidence generally
The trial judge accepted Margaret Campbell as a very credible witness: at [171]. He accepted that the complainant had told her that she had not consented to digital penetration and that, in that respect, Margaret’s evidence was inconsistent with that of the complainant. However, his Honour did not consider the discrepancy to be significant, observing that there was “a variety of possible reasons for the discrepancy”: at [172]. On the other hand, his Honour considered that Margaret’s evidence was significant evidence going to the principal issue of lack of consent to penile/vaginal intercourse.
While his Honour did not elaborate on the possible reasons for the discrepancy, such reasons might include that the complainant was extremely upset and was struggling to recount a highly traumatic incident in a coherent fashion.
(b) Evidence about fellatio
As to previously engaging in fellatio, the complainant’s concession that, although she did not recall having engaged in fellatio, she may have done so, tended to support her credibility rather than undermine it.
The complainant explained the reference in the Snapchat message photograph at 12:57 PM on Saturday, 28 April to “using [her] hand and mouth” as a reference to spitting on the appellant’s penis for the purpose of facilitating a “hand job” rather than a reference to fellatio.
The trial judge found that the complainant’s explanation was “not a convincing explanation”: at [185]. His Honour was satisfied that the message was “a contemporaneous document created by the complainant recording her version of events”: at [186]. Consequently, there was an inconsistency about whether fellatio did or did not occur on 28 April. As the Snapchat message was a contemporaneous account of events, it seems likely that fellatio did occur.
However, this inconsistency was not significant to an assessment of the complainant’s credibility on the critical events; she agreed that, on the night in question, the critical events were preceded by consensual sexual interaction.
(c) Telephone conversation between the complainant and the appellant’s mother
The appellant’s mother said that the complainant had agreed that she had been “happy” with what had happened. While the complainant did not clearly agree with that proposition, she did agree that she had described the appellant as “not a rapist”.
At the time of the conversation, the complainant harboured conflicting feelings towards the appellant. She still “liked” him, although she was distressed by what he had done. To describe a person as “not a rapist” may be simply to say that they are not a rapist by nature; not to say that they have never raped.
At the time of the conversation, the complainant was still very distressed by events and her father’s reaction to them would not have calmed her emotional state. It must have been confronting to speak to the appellant’s mother. The complainant may have felt emotional pressure to understate the situation. Immediately after the conversation, she told Greg that she did not remember what she had said to the appellant’s mother.
Similarly, the appellant’s mother would have been emotionally upset at the time of the conversation; whether or not the appellant’s mother used the precise expression, she must have regarded the allegations as a “big deal”.
The trial judge took the circumstances of the conversation into account in finding that the content of the conversation did not damage the complainant’s credibility: at [193]. That approach was well open to his Honour.
(d), (e) and (f) Statements to Charles about a forensic test, a punch and blood in the car, the Internet search for a forensic report, and the withholding of messages from police
The appellant’s friend Charles said that, at a party in mid-July 2018, the complainant had begun to cry unexpectedly and had said, “Your mate raped me … He punched me, forced me, put me into the back of the car, punched me” and that they found evidence of his ejaculate inside of her and blood on her back seat. She said that her father was offering $5,000 to anyone who would break the appellant’s legs and she had asked him whether he would like to do that.
The trial judge described the demeanour of the complainant as “impressive, particularly during the course of her cross-examination” (at [161]). His Honour properly cautioned himself not to place too much emphasis on a witness’s demeanour when assessing a witness’s reliability. The trial judge went on to specifically observe of the complainant (at [162]):
Notwithstanding a lengthy cross-examination, her answers were usually very clear and responsive to the question that was asked. Even when dealing with intimate and awkward topics and giving evidence which would not necessarily advance the Crown case, she answered clearly and without defensiveness. She made clear what she could recollect and what she could not.
For the purposes of what follows, the trial judge’s impressions of the direct manner in which the complainant gave her evidence may be accepted and adopted. However, two further observations should be made.
First, the impression that the complainant “made clear what she could recollect and what she could not” cannot enhance the credibility of the complainant if a professed inability to recall an event is either inherently implausible, or is inconsistent with an earlier positive denial that the event occurred. The complainant’s evidence concerning fellatio (discussed below) is illustrative.
Second, whether a witness readily gives evidence that does not necessarily advance the Crown case may or may not enhance the credibility of the witness, depending on the subject matter of the evidence. As discussed below, there was compelling objective evidence demonstrating that the complainant had intended to falsify a forensic report and that she had lied about the existence and content of such a report. It is hardly surprising that the complainant would admit that dishonest conduct, given the objective strength and nature of the evidence going to prove it. The fact of the dishonest conduct was plainly relevant to the complainant’s credit, whether or not it was readily admitted. Whether the dishonest conduct was adequately explained had to be considered in light of the evidence as a whole.
I will return to this topic after considering some of the particular deficiencies and discrepancies emphasised by the appellant on this appeal.
Assessment of the Crown case
I prefer to consider the reasonableness of the verdicts by reference to the broad topics discussed below. To the extent that I have accepted the appellant’s submissions on the appeal, that will become apparent in the analysis that follows. As will become clear, I do not consider the path to conviction adopted by the trial judge to have been reasonably open. There being no other path to conviction reasonably open, the appeal must be allowed.
Evidence concerning consensual acts
The complainant and the appellant gave differing accounts of a conversation about whether they would have penile/vaginal intercourse. On both accounts, that conversation took place after a certain amount of consensual activity had already commenced, including the appellant digitally penetrating the complainant and the complainant manipulating the appellant’s penis with her hand. The content of the conversation is significant.
The appellant’s evidence was that he had asked the complainant whether she wanted to have sex, and that she had replied “yes, but you’ve been drinking”. The complainant maintained that she had replied “no”. However, under cross-examination she agreed she had used the phrase “but you’ve been drinking”. The relevant exchange was:
Counsel for the appellant: I suggest that you said ‘But you have been drinking’?
Complainant: Correct.
Counsel for the appellant: You had not raised the question of him having been drinking before you started manipulating his penis or before he started putting his fingers in you, had you?
Complainant: No.
Counsel for the appellant: Because whether you thought he was drunk or not, that was something you were both happy and were enjoying doing at that stage?
Complainant: Correct.
Counsel for the appellant: He asked if you wanted to have sex and you said ‘But you have been drinking’?
Complainant: Correct.
Counsel for the appellant: He said ‘No, I am okay’. Do you agree with that?
Complainant: Yes.
The complainant’s use of the phrase “but you’ve been drinking” lends considerable support to the appellant’s account of the whole of the conversation.
The words fairly indicate that the complainant perceived that drinking was an issue that might affect the quality of the appellant’s consent, not her own. The words tell strongly against a finding that the complainant referred to drinking in an explanation for saying “no” to intercourse as she had alleged.
Moreover, the appellant said that the complainant had consented to and initiated further sexual activity, including by performing fellatio on him and by removing her underpants (as to which see below). The evidence did not preclude the possibility that the complainant did those acts voluntarily after the conversation about the appellant’s drinking and after the consensual acts, including digital penetration. The evidence disclosed a reasonable basis for the appellant to believe that the words “but you’ve been drinking” did not amount to a denial of consent on the complainant’s part.
Inconsistency regarding digital penetration
There was no dispute that digital penetration occurred. In her police interview and at trial, the complainant said that she had consented to that activity.
The complainant’s telephone call to Ms Campbell is the most proximate out of court complaint upon which the Crown relied. Ms Campbell’s evidence about the call included the following:
Counsel for the Crown: Did she say that either her or [the appellant] had done anything physically to one another?
Ms Campbell: Yes, so she said that they were – she was touching him, she was giving him a hand job and that it led to him trying to do stuff to her to which she felt uncomfortable because she explained to me that she was in a dressing gown with long pants on. She wasn’t looking whatsoever presentable and that he then went and continued and started to finger her to which she said no. Then he continued and she said she just laid there helpless and then he went down and she said no and then it became extremely forceful and he had tried to have sex with her and she just started crying again and just said ‘I said no’.
Counsel for the Crown submitted that this evidence was capable of different interpretations and that it fell to be considered against the highly emotive state the complainant was in at the time that the call was made.
I do not accept that the evidence is capable of differing interpretations. The evidence means what it says. Ms Campbell later gave evidence of words said by the complainant after the telephone call with the appellant’s mother. Ms Campbell’s evidence was:
She said that ‘Well I did eventually let him do things to me’ in regards to not sex but other stuff like finger her and she said so although she said no to that she told me that she eventually just laid there while he was fingering her and then on from that she always stuck by saying no to having sex even after the conversation with her mum - his mum, she stuck by saying no to having sex but it was just ‘I could have done more. We have been talking. Maybe he got the wrong impression’, however and - but she did repeat ‘I did say no to sex’ and she said that to his mum.
In my view, the trial judge was correct to identify a discrepancy between the complainant’s evidence and her out of court statements as to whether she had said “no” to digital penetration.
The trial judge did not consider the discrepancy between the account given to Ms Campbell and the evidence given at trial to be of significance. His Honour said that there were a variety of possible reasons for the discrepancy, however, none was expressly identified. His Honour did not consider possible reasons for the discrepancy that were damaging to the complainant’s credit, or determine why those possibilities may be ruled out.
It cannot be overlooked that the discrepancy was one of a number of exaggerations and falsehoods having common features: the overstatement of the complainant’s role as a victim and the appellant’s role as offender, both as to the lack of consent and the appellant’s knowledge.
That is not to deny that the circumstances and content of the early morning call to Ms Campbell was powerful evidence lending support to the Crown case. However, in all of the circumstances, it was not permissible to cherry pick from that evidence those parts that were particularly powerful and ignore those parts that may be particularly damaging if not adequately explained. The possibility of falsehood or exaggeration in one aspect of the prior complaint necessarily affects the reliability of the remainder.
Underwear
In her EICI, the complainant gave specific evidence about the removal of her underwear, including the following:
… And then we started kissing again for a while and he got my hand and put it - like, we were kissing and he, like, pulled my hand down into his pants and I started giving him a hand job. And then he pulled his pants completely off and I was wearing grey tracksuit pants and a pink nightgown. So my, like, tracksuit pants were off but I still had my underwear on at the time. And then I stopped giving him the hand job and we were just kissing and he was on top of me and he just, like, quickly pulled my underwear off and said ‘Can I lick you out’.
(emphasis added)
It was at that point in the complainant’s narrative that the non-consensual activity started to occur, the removal of her underpants being an immediate precursor to it. She did not profess to having any difficulty recalling when her underpants were removed, how swiftly it was done, by whom it was done, and where she was positioned relative to the appellant when it occurred.
That aspect of the complainant’s account was inconsistent with the account given under cross-examination, including the following:
Counsel for the appellant: You agree that at some point your lower part was naked, you can’t remember when or how?
Complainant: Correct.
Counsel for the appellant: But however it happened, it was consensual by you?
Complainant: Yes, I think so.
Counsel for the appellant: Well ---?
Complainant: Yes.
Counsel for the appellant: --- he did not rip your pants off you?
Complainant: No.
Counsel for the appellant: However they came off, you either helped him get them off or you took them off yourself? –
Complainant: Correct.
Counsel for the appellant: Voluntarily?
Complainant: Correct.
The fact and circumstances of the removal of the complainant’s underpants is not an insignificant issue, quite apart from the credit issues arising from the inconsistency. The evidence is consistent with a scenario in which the complainant voluntarily removed her own underpants after digital penetration and after the conversation about whether or not she and the appellant might have sex. That being the case, a person in the appellant’s position might reasonably believe that the underpants were removed to facilitate penile/vaginal intercourse. That order of events would also be consistent with the appellant’s account that the sexual activity was a continuous progression in which the complainant was an equally initiating participant. The order of events also lends support to the appellant’s denial that the complainant had said “no”. If she had said “no” when she had claimed, it is unlikely that she would have then proceeded to remove her own underpants.
There was no explanation on the Crown’s case as to why the complainant had told the police that the appellant had quickly removed her underpants when on top of her, when in fact she had no recollection of how they came to be removed, and accepted the possibility that she had voluntarily removed them herself. When considered together with the other discrepancies, this aspect of the Crown’s case gives rise to a reasonable doubt as to whether the complainant said “no” and, if she did so, when that occurred. It is a further example of inconsistent evidence about the acts on her part that were consensual and voluntary and those that were not.
Inconsistency regarding fellatio
The complainant told the police that the appellant had asked her to “use her mouth”, that she had said no, that the appellant was “fine with that” and that fellatio had therefore not occurred.
The appellant’s evidence was that the complaint had performed fellatio on him after first asking if she could do so. Of course, the performance of fellatio is not among the charged acts. However, as discussed below, whether the complainant initiated and/or performed fellatio went both to the complainant’s credit and to the question of whether the appellant’s version of events might be true.
The complainant gave evidence that she could not recall whether she had performed fellatio on the appellant in their previous encounters at Mount Ainslie. When asked whether she may have “given [the appellant] oral sex on at least one occasion” she acknowledged that she “may have”. That evidence was inconsistent with the complainant’s out of court statement to the police in which she said she had not previously done so or previously been asked to do so. The performance of fellatio on the appellant at earlier occasions is not something readily forgotten, the complainant having no difficulty recalling other consensual sexual activities at her prior meetings with the appellant. When considered with other evidence, the inconsistency clearly gave rise to the possibility that the complainant was not truthful in her EICI on that topic.
The complainant’s adamant evidence that she had not performed fellatio on the appellant on the night of the charged acts was inconsistent with the Snapchat message (exhibit P1) in which she stated that she had used her mouth. The trial judge (appropriately) considered it unnecessary to ascertain whether that message had been sent.
The complainant said that the words “used my mouth” meant that she had spat on the appellant’s penis to provide lubrication whilst manipulating him with her hand. The trial judge rejected that explanation as “unconvincing”. I share that view. But the enquiry does not end there. It remains necessary to consider the consequences of categorising the testimony in that way. In my view, the proper finding is that the complainant’s assertions that she had been asked by the appellant to perform fellatio, that she had said “no” to performing fellatio and had not in fact performed fellatio cannot be accepted, so giving rise to real concerns about her reliability as a witness. Moreover, there arises a reasonable possibility that the appellant was truthful in his account that the complainant had been the initiator in a continuing course of sexual activity, including by initiating and performing fellatio on him. As to the order of events, it is reasonably possible that the complainant initiated fellatio after the conversation about whether the couple would have sex and before she voluntarily removed her underpants. It was necessary to factor those possibilities into the assessment of the appellant’s evidence that he believed the complaint to have consented to penile/vaginal intercourse.
The inconsistency concerning fellatio (along with other discrepancies) also bears on the assessment of the complainant’s evidence that she had “downplayed” events in her telephone discussion with the appellant’s mother, to which I now turn.
The call with the appellant’s mother
The trial judge described Ms Smith’s evidence as “generally reliable”. His Honour did not identify any discrepancy in her evidence that might give rise to a concern that it was unreliable in any way, except to observe that she was “likely to be affected by the passage of time and her obvious desire to believe her son” (at [192]). That qualification did not cause his Honour to reject her version of events. To the contrary, the trial judge considered Ms Smith to have provided the most reliable account of the telephone call, as do I. His Honour summarised her evidence about the call as follows:
140.Subsequently she answered the accused’s phone and it was the complainant’s father. He suggested that he call back when the accused was there. She said that she was aware of the situation and was happy to speak with him. She said that the accused had explained that the two of them had done things in the car and that her understanding was that the complainant was happy with what had happened. Mr Jones said that the accused had gone to the oval, that he was chasing kangaroos and that they had had sex. She said that she was aware of that. He said that this had happened on a number of occasions previously but did not involve sex. She said that she understood the accused had tried to have sex, that he had put his penis in, but took it out because it was awkward. Mr Jones then got angry and said that the accused had had intercourse for 15 minutes while the complainant was screaming ‘No’. Ms Smith said that the accused had told her that the complainant was happy and that she had instigated it. He did not accept that and was angry and yelling. She heard the complainant say ‘Dad that’s not what happened … you never listen to me Dad, that’s not what happened’. He asked whether Ms Smith wanted to speak to the complainant.
141.The complainant took the phone and apologised for the behaviour of her father. Ms Smith said the accused had told her what had happened between the two, and that the complainant was happy with it. The complainant agreed with her. She agreed that it only happened for a very few short seconds. Ms Smith asked the complainant if the accused forced her or hurt her or anything and she said no. Ms Smith said she really needed to explain to her parents exactly what happened because ‘this was a very big deal for her father to be saying this about John’. The complainant said that the accused was her friend and a good guy, and said ‘He’s not a rapist’ and ‘he’s just not like that’. Ms Smith said she needed to sit down with her parents and make sure her father understood exactly what happened because it was a very big accusation for him to be making. The complainant agreed with her. The complainant said thank you for listening and apologised again. The call ended.
Ms Smith denied raising the topic of the appellant’s football career or the topic of engaging lawyers in that particular call. Those denials were not challenged.
The complainant acknowledged that she had interrupted the conversation between her father and Ms Smith, and that before doing so she had yelled to her father “that’s not what happened”. She took the phone after her father aggressively alleged that the appellant had raped her for fifteen minutes and that she had been screaming.
It is to be recalled that at the conclusion of her cross-examination the complainant maintained that the only respect in which her father’s account was exaggerated was the duration over which the intercourse had occurred. The complainant’s words in the call with the appellant’s mother are inconsistent with that narrative in significant respects. She agreed that intercourse had proceeded for only a few short seconds, that the appellant had not used force and that he was a “good guy” and not a rapist.
The complainant’s act of seizing the phone and her accompanying words when doing so betrays a belief that the actual events were very different from her father’s description in significant respects, and not merely by reason of a five minute difference in the time over which the intercourse was said to have occurred.
The complainant’s explanation that she “downplayed” events in the call because she was scared when speaking to the appellant’s mother for the first time must be carefully considered in its proper context. In my view, the explanation was itself problematic, when considered in light of the other discrepancies, together with the following contextual matters:
(a)Ms Smith had not initiated the conversation. It was the complainant’s father who called Ms Smith, and it was the complainant who then took the phone from her father. On the complainant’s account, it was her father who acted threateningly, Ms Smith remaining calm and polite throughout.
(b)Plainly, the complainant initiated the conversation with Ms Smith in order to correct what her father had said. At the time that she took the phone, there was no reason for the complainant to diminish her account to anything less significant than what had in fact occurred.
(c)In her EICI, the complainant gave a detailed version of the telephone conversation. In the EICI, the complainant said that she had defensively told Ms Smith her side of the story and that she had “definitely made [herself] clear” when doing so. She did not suggest that she had felt the need to downplay her version of events, whether out of a sense of intimidation or otherwise.
(d)The complainant’s assertion that she had downplayed the events in the call with Ms Smith was not supported by the text messages she sent to her friend Greg Brown shortly after the call. Whilst the texts contain a statement that the complainant could not remember all that Ms Smith had said, there is also an unqualified statement to the effect that she had told Ms Smith “what happened”. She did not suggest to Mr Brown that she had felt scared or intimidated and so had downplayed the account in any way. She did not tell Mr Brown that she had given an account of events to Ms Smith that did not fairly represent what had in fact happened.
(e)The complainant’s statement that the appellant was “not a rapist” must of course be understood in the context of a 17-year-old distressed by the confronting and unhelpful behaviour of her father. However, the statement lends support to the hypothesis that there was confusion or concern in the complainant’s own mind as to whether the appellant knew that she was not consenting, at least at the time when intercourse commenced.
(f)The presence of confusion of that kind is reinforced by the words the complainant said to Ms Campbell immediately following the call with the appellant’s mother: “I could have done more. We have been talking. Maybe he got the wrong impression”. The words are difficult to reconcile with the protestation evidence. Like the call to the appellant’s mother, the statement is more consistent with a concern on the complainant’s part that the appellant may not have appreciated that she did not consent. Yet further support for that concern is to be found in her unsent Snapchat message (exhibit P1) which concluded with the words “but then you stopped and realised I was actually being serious when I said no and stop [sic]” (emphasis added). That message was drafted before the telephone conversation with the appellant’s mother occurred.
The discrepancies discussed so far give rise to a real likelihood that the complainant had falsely diminished the extent to which she initiated and continued sexual activity with the appellant and falsely stated the things she had positively said and done to convey her lack of consent. They provide some context for consideration of the next topic.
The forensic report evidence
The Crown submits that the complainant was forthcoming in her admissions that she intended to falsify a forensic report and that she had made false out of court statements about the existence of such a report and its content. The complainant’s frank admissions to that conduct were said on this appeal to enhance her credibility as a witness rather than detract from it. I cannot accept that submission.
It is unsurprising that the complainant admitted to lying about the existence of a forensic report. Evidence of the fact of the dishonest conduct was overwhelming. It was contained on her mobile phone as seized by the police.
I do not consider it was open to explain away the dishonest conduct by reference to a social environment in which the complainant’s reputation was under attack, for three reasons.
First, the chronology of events does not wholly support the explanation. The complainant first lied about the existence of a forensic report in a conversation she had with Mr Bannister at a party in July 2018. The lies occurred in the same conversation in which the complainant first alleged to Mr Bannister that she had been sexually assaulted by the appellant. There is no evidence that Mr Bannister had been made aware of the allegations at any earlier time and so no occasion had arisen for Mr Bannister to question the complainant’s veracity about any allegations she had made before that time. The initial lie told at that time could not be explained by reference to Mr Bannister being (in the words of the trial judge) an “inter-meddling busybody”. When the complainant reported social harassment to the police, it was the latter conduct of Mr Bannister about which she complained. The Crown adduced no evidence that there was any significant campaign of social harassment before the complainant’s original lies to Mr Bannister occurred.
Second, the complainant acknowledged that she had sought by her lies to be believed by her peers. However, what she said about the content of the forensic report (not in fact obtained) was an account quite different than the account she had given to the police. It was intended to paint a picture that the appellant had persisted in an act of non-consensual intercourse through to ejaculation accompanied by force causing her personal injury. It is reasonable to infer that the complainant considered the ends (harm to the appellant’s reputation caused by that false narrative) to justify the means (the portrayal of herself as the victim of a vicious attack).
Third, there was insufficient evidence to found a conclusion that the social stakes said to have precipitated the lies had altered in any way by the time of the trial. If anything, the social stakes for the complainant in the outcome of the proceedings (as she perceived them to be) were the same, if not higher. There was a real risk that her admitted preparedness to tell lies in order to be socially accepted persisted at the time of the trial.
The complainant withheld evidence about her conduct so as to avoid its detection, on her own admission because of a concern that the police might not consider her to be a reliable witness. The complainant had a correct insight into the concerns her conduct might raise in the mind of a reasonable person about the veracity of her evidence as a whole.
I consider this feature of the evidence ought to have given rise to a reasonable doubt as to the appellant’s guilt when considered in conjunction with the nature and number of discrepancies discussed in the foregoing paragraphs. The proven dishonesty was closely connected to the proceedings and provided a critical context against which all other discrepancies in the Crown’s case ought to have been considered. The explanation given for the conduct could not provide a proper basis for proceeding as though the conduct had not occurred.
The appellant’s evidence
The appellant was entitled to verdicts of acquittal either if his version of events was accepted or if it was determined that his version of events might be true: Liberato v The Queen (1985) 159 CLR 507 (Liberato) at [515]; De Silva v The Queen [2019] HCA 48; 268 CLR 57 (De Silva) at [12].
The trial judge did not accept the appellant’s stated reasons for abruptly ceasing intercourse: a feeling of awkwardness referable in part to the lack of contraception and in part by a sense of mental unease having no particular reason articulated for it.
The trial judge considered the stated reasons to be “positively implausible”. By that phrase, his Honour may be understood to have determined that there was no reasonable possibility that the appellant’s account was true.
The reasoning of the trial judge presupposed some knowledge of the characteristics of 17-year-old males in the course of consensual sexual intercourse. His Honour reasoned from the premise that the sexual urges of a young man in the course of consensual intercourse are unlikely to be overcome by a sense of disquiet or awkwardness. In my view, that reasoning presumed a universality of human experience in sexual relations that does not and cannot exist. It appears that the generalised statement of likelihood informed the conclusion that the appellant’s account could be excluded beyond reasonable doubt.
The appellant’s stated feeling of awkwardness is supported by the content of the telephone conversation between his mother and the complainant’s father hours after the relevant events occurred. It is undisputed that in that conversation, the mother attempted to relay the appellant’s story as disclosed to her by the appellant. In doing so, she told the complainant’s father that the intercourse was consensual but the appellant had stopped because it was awkward. That evidence tells against a finding that the appellant’s use of the word “awkward” to describe his experience was a recent invention.
The trial judge was nonetheless entitled to reject the appellant’s account as to what occurred after intercourse. I respectfully agree with that aspect of his Honour’s reasons. If the intercourse had ceased so abruptly, the possibility that the couple then spent 40 minutes talking of anything other than what had just occurred could be rationally rejected. I consider that to be a distinct and sufficient basis upon which the trial judge correctly put aside the appellant’s version of events in the proper application of the principle stated in Liberato and De Silva.
The trial judge properly directed himself that the rejection of the appellant’s case could not strengthen the Crown’s case. The first ground of appeal accordingly turns upon the sufficiency of that case to establish the appellant’s guilt beyond reasonable doubt.
Conclusions in respect of the Crown case
In light of the discrepancies to which I have referred (and especially having regard to their number and nature) I do not consider the path to conviction taken by the primary judge to have been reasonably open. That particular path to conviction involved an acceptance beyond reasonable doubt that the complainant said “no” but a rejection of the protestation evidence to the extent that it included allegations of screaming, yelping, statements such as “I’m serious, fuck off” and physical resistance. The trial judge ought to have found that the protestation evidence as a whole was significantly exaggerated so as to give rise to a reasonable doubt as to the whole of the complainant’s account. If the exaggeration of that evidence was not of itself sufficient to give rise to a reasonable doubt, then in my view it was plainly sufficient when considered cumulatively with the nature and number of the other discrepancies described above.
I am not satisfied that the deficiencies in the Crown’s case can be overcome by the special advantages enjoyed by the trial judge in the conduct of the trial, including his Honour’s observations of the manner in which the complainant gave evidence.
In addition, as observed at the outset of these reasons, it could not be concluded beyond reasonable doubt that the appellant had the state of mind attributed to him on the facts as found by the trial judge in any event. If the appellant had proceeded to penetrate the complainant with reckless disregard to the existence of her consent, I consider it unlikely that he would have abruptly ceased intercourse upon it becoming “obvious” that her consent was lacking. It is all the more unlikely that he would have behaved in the fashion described by the complainant immediately after intercourse ceased.
There being insufficient evidence to support guilty verdicts beyond reasonable doubt, it is unnecessary to decide whether there has been a miscarriage of justice for the reasons advanced on the second ground of appeal. The verdicts should be set aside and substituted with verdicts of acquittal.
The verdicts of acquittal do not depend on a positive finding that the complainant was committed to a false version of events because of the behaviour of one or more of her parents. In my view, pursuance of that theory is a distraction. The appeal may (and should) be allowed without reference to that theory.
| I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Charlesworth Associate: Date: 2 July 2021 |
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