Smith (a pseudonym) v The Queen

The Supreme Court of the Australian Capital Territory, constituted by Murrell CJ, Loukas-Karlsson and Charlesworth JJ, allowed an appeal by the appellant, identified pseudonymously as Smith, against his convictions for three sexual offences. The charges, heard by Mossop J as a judge alone in the ACT Supreme Court, involved one act of indecency without consent and two offences of sexual intercourse without consent, all alleged to have occurred on 28 April 2018. The complainant, also 17 years old at the time, alleged that the appellant had engaged in these acts without her consent, despite prior consensual sexual activity between them. The appellant maintained that the intercourse was consensual.

The appeal raised two primary grounds: first, that the verdicts of guilty were unreasonable having regard to the evidence and the trial judge's alleged failure to adhere to the "Liberato direction"; and second, that a miscarriage of justice had occurred due to the trial judge's impermissible consideration of "common knowledge" material, contrary to section 144 of the *Evidence Act 2011* (ACT), without affording the appellant an opportunity to address such material. The appellant did not challenge the trial judge's directions to himself, noting that a "Liberato direction" and other relevant directions had been given, alongside an observation that he was entitled to use his common sense and individual experience in assessing the evidence.

The Court found that the verdicts were unreasonable, particularly in light of the evidence presented and the application of the "Liberato direction". The reasoning focused on the assessment of the complainant's evidence, which contained inconsistencies and concessions regarding the nature and extent of consent, particularly in the context of the appellant's repeated assertions of not hearing the complainant's refusals and his subsequent confusion and self-harm. The Court concluded that the trial judge's reliance on "common knowledge" in assessing the credibility and voluntariness of the complainant's actions, without proper evidentiary foundation or opportunity for submissions, constituted an error.

Consequently, the appeal was 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 were set aside, and in lieu thereof, a verdict of not guilty was entered on each count.