Xu v R

[2023] NSWCCA 93

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Xu v R [2023] NSWCCA 93

Hearing dates:

28 September 2022

Date of orders:

21 April 2023

Decision date:

21 April 2023

Before:

Garling J at [1];
Hamill J at [3];
N Adams J at [23].

Decision:

(1) Grant an extension of time.

(2) Appeal dismissed.

Catchwords:

CRIMINAL LAW – conviction appeal – applicant convicted of sexual assault offences – application for extension of time – seven grounds of appeal – whether the trial miscarried and there was a substantial miscarriage of justice arising from how the Crown prosecutor opened on the complainant’s intoxication and the element of consent and the trial judge’s response to this – whether the trial miscarried because there was no expert evidence on intoxication at trial – whether the trial miscarried because of the trial judge’s ruling to disallow the complainant from being cross-examined on a particular document – whether the verdicts were unreasonable – strong Crown case – alleged inconsistencies all jury matters that were raised at trial – applicant seeks to adduce “new” evidence on intoxication, the complainant’s residence and CCTV footage – new evidence does not prove applicant’s innocence or raise a doubt about guilt – all grounds dismissed

Legislation Cited:

Crimes Act 1900 (NSW), ss 61, 61HA, 61I, 61L, 61P

Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Criminal Procedure Act1986 (NSW), s 159

Evidence Act1995 (NSW), ss 55, 101A, 102, 103

Cases Cited:

Beattie v The Queen (2020) 287 A Crim R 287; [2020] NSWCCA 334

Croftsv The Queen (1996) 186 CLR 427; [1996] HCA 22

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15

Hamide v The Queen (2019) 101 NSWLR 455; [2019] NSWCCA 219

Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36

Holt v R [2021] NSWCCA 140

House v The King (1936) 55 CLR 499; [1936] HCA 40

Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118

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

Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44

SC v R [2023] NSWCCA 60

SC v The Queen [2023] NSWCCA 60

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

Xie v The Queen (2021) 386 ALR 371; [2021] NSWCCA

Zhou v The Queen [2021] NSWCCA 278

Texts Cited:

New South Wales Law Reform Commission, Consent in relation to sexual offences (Consultation Paper No 21, October 2018)

Category:

Principal judgment

Parties:

Longwei Xu (Applicant)
Crown (Respondent)

Representation:

Counsel:
Mr T Hickie (Applicant)
Ms C Curtis (Respondent)

Solicitors:
Chess Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2015/379625

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 July 2018

Before:

Noman SC DCJ

File Number(s):

2015/379625

HEADNOTE

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

Mr Xu (the applicant) was convicted of seven offences arising out of the sexual assault of a young woman on 26 December 2015. These offences included three counts of assault with act of indecency, two counts of attempted intercourse without consent, one count of sexual intercourse without consent and one count of common assault.

The applicant was sentenced to an aggregate term of imprisonment of 4 years with a non parole period of 2 years and 6 months by Judge Noman SC at the District Court on 23 July 2018.

The applicant appealed the conviction under s 5(1) of the Criminal Appeal Act 1912 (NSW) on seven grounds. Four of the grounds asserted that the trial miscarried as a result of how the Crown prosecutor presented the issue of intoxication and the complainant’s level of intoxication, and the trial judge’s response to this. The fifth ground related to the absence of expert evidence on intoxication. The sixth ground related to the trial judge’s ruling to disallow the complainant from being cross-examined on a “cheat-fail” on her academic record. The seventh ground contended that the verdicts were unreasonable.

The applicant required an extension of time to bring the appeal.

The court held, granting an extension of time and dismissing the appeal (per N Adams J, Garling and Hamill JJ agreeing):

1. In order to establish a miscarriage of justice, the applicant must show that there is a "real chance" that what occurred affected the jury's verdicts: [101].

2. Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA, applied; Zhou v The Queen [2021] NSWCCA 278, applied.

3. Evidence that a complainant in a sexual assault trial was intoxicated can be relevant on a number of bases, not just where the Crown is relying on substantial intoxication to establish a lack of consent: [158].

In respect of ground 1

4. The trial did not miscarry as a result of the Crown prosecutor’s reference in her opening address to substantial intoxication being relevant to whether the complainant had freely and voluntarily agreed to have sexual intercourse with the applicant: [150]. The trial judge’s directions were correct and it must be assumed that the jury followed those directions: [150].

5. Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, applied.

In respect of ground 2

6. The relevant question for an appellate court when considering a trial judge’s decision not to discharge the jury is whether a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act has been established as a result of the decision: [152]. The trial judge’s decision not to discharge the jury following the Crown prosecutor’s reference in the opening address to substantial intoxication did not lead the trial to miscarry: [162].

7. Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, applied.

In respect of ground 3

8. The trial judge did not err in not directing the jury about intoxication immediately after the opening address; the directions were not required as they did not arise on the evidence: [154].

In respect of ground 4

9. Expert evidence as to the complainant’s level of intoxication was not required on the facts of this case: [170]. Such evidence could be relevant but the decision not to adduce it did not lead the trial to miscarry. It was a matter for the tribunal of fact to consider the evidence of intoxication.

10. Holt v R [2021] NSWCCA 140, cited as an example.

11. It is permissible for a Crown prosecutor to open its case on alternate bases and to narrow the case for the closing address: [174]. To do so did not represent a departure from the Crown case at opening in this matter.

In respect of ground 5

12. “Fresh” evidence is evidence of which the applicant was unaware at the time of their trial that could not have been discovered by the exercise of reasonable diligence: [188]. “New” evidence is evidence that was available at first instance or could have been obtained in the exercise of reasonable diligence. If the evidence is new evidence, there would only be a miscarriage of justice if the applicant satisfies this court that the new evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that he/she was innocent or that his/her guilt was not established beyond reasonable doubt: [189]. Evidence about the complainant’s intoxication was new evidence and fell far short of proving the applicant’s innocence or raising such a doubt about guilt that the convictions cannot stand: [191], [200].

13. Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118, applied; Xie v The Queen (2021) 386 ALR 371; [2021] NSWCCA 1, applied; SC v The Queen [2023] NSWCCA 60; applied.

In respect of ground 6

14. The trial judge did not fall into error in deciding that, on the information available, the “cheat/fail” on the complainant’s transcript could not substantially affect the jury’s assessment of the complainant’s credibility: [5]. While a finding of cheating in an academic setting could affect the assessment of a witness’s credibility, there was insufficient particularity and detail of the matter upon which counsel sought to cross-examine: [10], [15].

In respect of ground 7

15. The question for an appellate court when considering whether the jury’s verdict was unreasonable is whether it thinks that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, that question being one of fact which the court must decide by making its own independent assessment of the evidence: [217].

16. Dansie v The Queen 2022) 96 ALJR 728; [2022] HCA 25, applied.

17. The jury had the opportunity to consider nearly all the matters raised under this ground at trial: [242]. The Crown case was relatively strong and there was no significant possibility that an innocent man was convicted: [245].

JUDGMENT

1. GARLING J: I agree with the orders proposed by N Adams J and with her Honour’s reasons. I also agree with the additional reasons of Hamill J with respect to Ground 6 of the grounds of appeal.

2. I have no doubt that the convictions were soundly based on the evidence adduced at the trial. Having regard to that evidence, and making proper allowance for the advantage which the jury had in seeing and hearing the complainant and other witnesses give evidence, I am wholly unpersuaded that the convictions were unreasonable.

3. HAMILL J: I enjoy the considerable benefit of having read the draft reasons of N Adams J. I agree with the orders proposed by her Honour although it is tempting either to decline to extend time or to refuse leave to appeal in view of: (i) the lengthy delay in bringing the appeal; (ii) the fact that Mr Xu has served the entirety of his sentence; and (iii) the lack of any significant merit in the grounds of appeal. However, I agree with N Adams J that “in the interest of finality” time should be extended and, where necessary, leave should be granted.

4. I have nothing to add to N Adams J’s careful analysis of grounds 1 to 4, all of which concerned the complainant’s state of intoxication. Similarly, I cannot add anything to her Honour’s reasons for rejecting ground 5, which was based on expert evidence that could have been obtained for the trial but was not. Given the evidence and issues at the trial, the probative value of that new evidence is, to put it kindly, limited.

5. As to ground 6, I agree with N Adams J’s conclusion that the trial Judge did not fall into error in deciding that, on the information available, the material upon which counsel sought to cross-examine could not substantially affect the jury’s assessment of the complainant’s credibility. It was, however, a matter upon which minds may differ.

6. Dr Webb, counsel appearing for the applicant at trial, with great courtesy and propriety, advised the Prosecutor before the trial commenced that he intended to cross-examine the complainant regarding an entry on her academic record which read “Cheat Fail”. The Prosecutor indicated that she objected to the proposed cross-examination and the issue was ventilated before the trial Judge. Dr Webb did not simply confront the complainant in the witness box and wait to see if there was an objection.

7. The argument was brief and included the following exchange at the outset:

“WEBB: … as your Honour will see accounting 1B and there's an email that your Honour will also see. This has result[ed] in a grade of cheat fail. I don't think it can be taken much further than that. That's in July 2017.

HER HONOUR: Yes, Mr Webb what's the basis of the admissibility?

WEBB: The basis is that in aspect and degree doubtless and fair enough too, the complainant will of course present the evidence as being evidence which is honestly given. That is a recent example of there being some evidence going to a question of something other than honesty. It's within the purview of academic misconduct as opposed to some other reason of accounting for.”

8. The Prosecutor submitted that the evidence was not relevant and, if it was, it was not admissible under the credibility rule in s 102 of the Evidence Act 1995 (NSW) or the exception to that rule in s 103. Section 102 provides that “credibility evidence about a witness is not admissible”. There was no doubt or dispute that the evidence was “credibility evidence” as defined in s 101A. Section 103 provides an exception to the rule in s 102 when evidence is adduced in cross-examination and “could substantially affect the assessment of the credibility of the witness”.

9. After the Prosecutor summarised her position, Judge Noman SC addressed further questions to Dr Webb:

“HER HONOUR: This is all the information you have Mr Webb?

WEBB: That's so. That was what came back from the subpoena and some further enquiries were made and understandably there was no further information forthcoming from the registrar.

HER HONOUR: The hurdle you have is not just that it affects the credibility. It has to be something that substantially affects the credibility. Is there any indication that she was under an obligation to tell the truth at the time?

WEBB: It could be inferred that the process of examinations requires or imports a degree or a standard in terms of how those tasks are approached.

HER HONOUR: The difficulty is it's not precisely known what was involved by the complainant --

WEBB: That is the case.”

10. On its face, a finding of “cheating” in an academic setting is a matter that could affect the assessment of a witness’s credibility. It could “substantially” do so depending on the timing and details of the behaviour. The matters referred to in s 103(2) (set out at [207] by N Adams J) are not exhaustive; they do “not limit the matters to which the court may have regard”. I am not persuaded that the passing of around one year between the entry on the academic record (July 2017) and the trial (July 2018) would have, by itself, denied the evidence of its capacity to impact on an assessment of the complainant’s credibility: cf s 103(2)(b).

11. The problem for the applicant is that the bare entry of a “cheat fail” on the academic transcript said nothing of the detail of the complainant’s conduct. That entry could have represented something relatively benign (such as the inadvertent failure to attribute a source) or it could have been something bearing substantially upon the complainant’s integrity (such as submitting another student’s work as her own). This lack of detail was what laid behind the trial Judge’s questions of counsel.

12. There was no application to examine the complainant on the voir dire to ascertain the detail of the entry.

13. The trial Judge decided the issue quickly and provided the following brief explanation:

“It's two years distant from the matter before the Court and although it seems to be something that is part of a formal course of study I'm not sure it equates with under an obligation to tell the truth. On the material currently placed before me I'm not inclined to allow the admissibility of it. I do not determine that it would substantially affect the credibility of the complainant.”

14. The reference to “two years distant” appears to be a (slightly inflated) reference to the time between the incident giving rise to the charges (December 2015) and the recorded “cheat fail” (July 2017). That does not appear to be a reference to “the period” referred to in s 103(2)(b), which concerns “the period that has elapsed since the events to which the evidence relates” [that is, the “cheat fail”] (my emphasis).

15. Even so, the Judge’s decision was largely based on the lack of particularity and detail of the matter upon which counsel sought to cross-examine. Counsel acknowledged this, based on the appropriate diffidence with which he pursued the matter. The references in her Honour’s ruling to “the material currently placed before me” and “I’m not inclined” demonstrate that Judge Noman SC concluded that the proposed cross-examination did not meet the exception in s 103(1), because of the dearth of information about the matter that counsel sought to put to the complainant.

16. In the circumstances, I agree with N Adams J that ground 6 ought not to be upheld.

17. As to ground 7, the assertion that the verdict is unreasonable and unable to be supported having regard to the evidence, I have independently considered the record of the trial.

18. On my review of the record, I agree with N Adams J at [217] and [245] that, contrary to the applicant’s submissions, the case against him was “relatively strong”.

19. The complainant’s evidence, as recorded in the transcript and considered at this distance, has a ring of truth to it. None of the criticisms made at trial or on the appeal are matters of great substance or matters that shook the credibility of the complainant’s account in any significant way. She made an almost immediate complaint and the CCTV evidence of her entering and leaving the applicant’s hotel room supported her evidence as to her state of intoxication at each of those times. There was also evidence from people at the dinner party that provided support for her evidence that she told them she was not accustomed to drinking alcohol. There was also the evidence of bruising and scratches and the fact that the complainant left her underpants behind, rather than running the risk of waking the applicant from his slumber.

20. While there was evidence upon which the applicant could rely – such as some inconsistency in the complaint, the evidence of the defence and character witnesses, and an absence of certain forensic evidence or investigation – the case against him remained a reasonably strong one.

21. I refer to the summary of the evidence provided by N Adams J and respectfully adopt her Honour’s reasons for rejecting ground 7.

22. I agree that the appeal must be dismissed.

23. N ADAMS J: On 9 July 2018, the applicant, Mr Longwei Xu, stood trial before Judge Noman SC and a jury of twelve on seven offences, all arising out of the sexual assault of a young woman on 26 December 2015 in Sydney. In order to protect the anonymity of that woman, I propose to refer to her simply as “the complainant”.

24. The indictment charged the applicant with the following offences:

1. Count 1: Assault with act of indecency, contrary to s 61L of the Crimes Act 1900 (NSW) (removing the complainant’s clothing);

2. Count 2: Assault with act of indecency, contrary to s 61L of the Crimes Act (removing the complainant’s bra);

3. Count 3 Attempted sexual intercourse without consent, contrary to s 61I and 61P of the Crimes Act (pinning the complainant down and trying to insert his penis into her vagina);

4. Count 4 Attempted sexual intercourse without consent, contrary to s 61I and 61P of the Crimes Act (rubbing his penis against the complainant’s vagina and trying to insert his penis into her vagina);

5. Count 5 Assault with act of indecency, contrary to s 61L of the Crimes Act (putting the complainant’s hand on his penis);

6. Count 6 Sexual intercourse without consent, contrary to s 61I of the Crimes Act (inserting his fingers into the complainant’s vagina for around one minute or more); and

7. Count 7: Common assault, contrary to s 61 of the Crimes Act (slapping the complainant’s face).

25. On 23 July 2018, the jury returned verdicts of guilty on all seven counts.

26. On 12 October 2018, the applicant was sentenced to an aggregate term of imprisonment of 4 years with a non parole period of 2 years and 6 months to commence on 23 July 2018 and expire on 22 January 2021.

27. The applicant was released to parole on 20 August 2021 and transferred to Villawood Immigration Detention Centre. He was subsequently deported to the People’s Republic of China on 3 October 2021 where he currently resides.

Grounds of appeal

28. The applicant seeks leave to appeal against his convictions under s 5(1) of the Criminal Appeal Act 1912 (NSW) on the following seven grounds:

Ground 1:   The trial miscarried by reason of the prejudice occasioned by the Crown prosecutor’s opening address to the jury asserting that the complainant was “so substantially affected by alcohol” it negated consent.

Ground 2:    A substantial miscarriage of justice was occasioned from the convictions of the appellant in relation to Counts 1-6 as a result of the trial judge’s failure to discharge the jury after the Crown prosecutor’s opening address.

Ground 3:    A substantial miscarriage of justice was occasioned as a result of the trial judge’s failure after the prosecutor’s opening address, and later in the trial judge’s summing up, to give the jury a full direction of the law on intoxication and consent.

Ground 4:    A substantial miscarriage of justice was occasioned as a result of how the Crown prosecutor presented to the jury the level of the complainant’s intoxication.

Ground 5:    A substantial miscarriage of justice arose from the absence at the trial of expert evidence on intoxication, now available as both fresh and new evidence.

Ground 6:    A substantial miscarriage of justice was occasioned as a result of the trial judge’s ruling to disallow the complainant to be cross-examined as to the “cheat fail” on her academic record from the TOP Education Institute, Sydney.

Ground 7:    The verdicts of the jury should be set aside on the ground that they are unreasonable or cannot be supported, having regard to the evidence.

29. By way of overview, the Crown case was that on 26 December 2015 the complainant was the guest at a dinner party which the applicant also attended. The complainant was not accustomed to drinking and became dizzy and sick after drinking three glasses of white wine. The applicant offered to take her home but instead took her back to his hotel room at the Shangri-La Hotel which was nearby. The CCTV footage of her walking to the hotel and inside the lift were tendered at trial. When she entered the hotel room, she was feeling unwell and lay on the bed. The applicant got into bed with her and started to undress her. She told him she was “not that type of girl” but he did not stop what he was doing. He undressed her (counts 1 and 2) and attempted to sexually assault her, while she struggled against him. He placed her hand on his penis (count 5) and tried repeatedly but unsuccessfully to insert his penis into her vagina (counts 4 and 5). He inserted his fingers into her vagina (count 6). He then slapped her on the face (count 7).

30. The complainant waited for the applicant to fall asleep and crept out of the hotel room in the dark using the torch from her phone. She left her underpants behind as she could not find them in the dark. The CCTV footage depicts her coming out of the room with the torchlight on her phone, consistent with her account. She immediately called her boyfriend and then a friend in Singapore. She was distressed. She told both of them that she had nearly been raped. Her boyfriend picked her up and took her to the police station. A paramedic who attended on the complainant observed her to be intoxicated. There was evidence from the police officer and her boyfriend that she vomited.

31. Given the complainant’s account, the Crown case, as it went to the jury, was that the applicant knew that she was not consenting because of her words and actions. Thus, the question of the complainant’s intoxication went largely to her credit and the background to the assault. Despite this, the Crown prosecutor suggested in her opening address that another basis upon which the Crown could prove its case on lack of consent (and knowledge of that fact) was on the basis that the complainant was too intoxicated to be able to give free and voluntary consent and the applicant would have realised that. By the end of the trial, prior to addresses, the Crown prosecutor placed on the record that she would not be closing on that basis and no direction to that effect was sought or given.

32. Grounds 1-5 concern how the Crown dealt with the evidence of the complainant’s intoxication at the trial. Ground 6 concerns the trial judge’s refusal to permit defence counsel to cross-examine the complainant on a particular document, and ground 7 contends that the verdicts were unreasonable.

Extension of time

33. The applicant requires an extension of time to bring this appeal.

34. The reason for the delay is somewhat unclear. The applicant privately funded his trial. He also initially sought to privately fund his appeal but there was some delay in that regard. Although a Notice of Intention to Appeal (“NIA”) was filed on 16 October 2018, so many extensions were sought that on 30 June 2020 the Registrar refused a further extension and the NIA lapsed. A grant of legal aid to obtain an advice on merit was subsequently made on 31 March 2021. As at that date, the applicant was nearing the end of his non parole period and undergoing the Moderate Intensity Sexual Offender Program (“MISOP”). He was unable to complete this course because of his pending conviction appeal (and also due to language difficulties). It was apparently on that basis that a grant of legal aid was approved to brief counsel to provide an advice on merit.

35. The applicant’s new solicitor spent some time in 2021 contacting the applicant’s previous solicitor and the District Court requesting all of the relevant papers and liaising with the CCA Registry. The NIA was subsequently extended.

36. On 23 September 2021, the applicant’s solicitor, Ms Lau, received Mr Hickie’s advice which included a request to engage an expert forensic pathologist to “clarify” the evidence of intoxication. A further grant of legal aid was made to engage Dr R Byron Collins to provide such a report.

37. Dr Collins provided his report on 10 December 2021 and the grounds of appeal were finally filed on 24 January 2022.

38. The matter took some time to be listed as the original submissions filed were 118 pages long. Although the Registrar ordered that a shorter version (30 pages) be filed, that order was not complied with, and the appeal proceeded with the lengthy 118 page submissions. On 9 September 2022, the matter was listed for hearing.

39. The Crown opposed an extension of time being granted on the basis that there was no merit in the grounds. It was submitted that if the court was satisfied that the trial had miscarried in some way then an extension of time should be granted.

40. For reasons provided below, I am not satisfied that any of the grounds should be upheld. Despite this, in the interests of finality, I would extend the time to bring the appeal, grant leave to appeal, and dismiss the appeal.

The evidence at trial

41. Given that ground 7 contends that the verdicts are unreasonable, it is necessary to set out the evidence at trial in some detail.

The complainant’s evidence

42. The complainant was 20 years old in December 2015 and 23 years old by the time she gave evidence in 2018.

43. The complainant gave evidence that she was invited to a party on 26 December 2015 by a woman called Coco, who she had met working at an event earlier that month. Coco had previously invited the complainant to two events with Coco’s “rich” friends, which she refused. On this occasion, Coco told her the party was for the birthday of Coco’s younger brother, the applicant. The complainant said she did not mind going with Coco to the party for “her own brother’s birthday” and denied that she attended because the people at the party were very wealthy. Arrangements were made for the applicant to take the complainant to the party, and he collected her in a car with a driver and a woman called Candice was also there. There were about eight other people at the dinner party. Candice was one of the three women there including the complainant.

44. The complainant recounted that when they sat at the table to eat dinner, a bottle of white wine was opened and all the males present (except for the owner) encouraged her to drink wine. She said that she told them that she was allergic to alcohol. She said that she tells everyone she is allergic to alcohol, but she drinks it a few times a year. She said she was forced to drink wine even though she did not want to and drank two and a half to three “cups” of wine. She began to feel dizzy, had a headache and felt like vomiting. She said she put her elbow to the table to support her head up and fell asleep for a few seconds. She agreed that, as a result of drinking the wine, she became so affected that she was unable to socialise and talk to people because she felt like she was about to pass out.

45. The complainant weighed 52kg and was 170cm tall.

46. She said that Candice was also encouraged to drink alcohol, to a lesser extent than the complainant was, and ended up “drunk on the couch”.

47. The complainant said that the owner suggested that he would arrange for his driver to take her home however the other males agreed that the applicant would take her home. She said that she was unsteady on her feet and unable to walk on her own, so the applicant assisted her.

48. She recounted that she vomited when they got outside and the applicant assisted her to get up and walk, although she did not know where they were going. She said that they arrived at the Shangri-La Hotel after walking for one or two minutes and took the lift to level 13. This is depicted on the CCTV footage where the applicant can be seen with his arm around her waist. The footage also shows the complainant entering the lift and placing her hands on the handrail to support herself, putting her hand over her mouth and bending over, and holding her head.

49. She described feeling drunk, dizzy and cold when they entered a room on level 13, so she lay down on the bed under a quilt. She said that the applicant removed his clothes and got under the quilt and cuddled her. He then pinned her down by laying on top of her body, began removing her clothes and forcibly kissed her. She described that she tried to push him off her and told him “[n]o”, but he grabbed both her hands. She told him she “was not that kind of girl” and that she had a boyfriend. She disagreed that the applicant asked her why she had gone back to the hotel room if she did not want to sleep with him.

50. The complainant gave evidence that the applicant began “aggressively” or “forcefully” removing her clothing (count 1). When he was unable to open her bra, he pulled the strap, and she heard it tear and the thread came off. He eventually removed her bra by pulling it over her head. Photographs of the black bra were shown to the complainant, and she indicated the damage she was referring to.

51. The complainant said that at some point the applicant went to the bathroom and she started to put her bra back on. When he returned, he removed her bra. He was too strong for her to stop him despite her efforts (count 2). She said that she continued to say “[n]o, I don’t want to”.

52. The complainant said that the applicant went to the bathroom a second time and then dragged her back to the bed. She recounted that he pinned her hands down, separated her legs, and tried to insert his penis into her vagina (count 3). By this stage, she recalled that he had removed her underwear despite her efforts to prevent this.

53. She also gave evidence that when the applicant was lying on top of her, he rubbed his penis against her vagina using his hand. She explained that she covered her vagina with her hands, but the applicant removed her hands, placed his legs between hers and tried to push his penis into her vagina (count 4). She described resisting and struggling to prevent the applicant from penetrating her.

54. The complainant also described how at one point the applicant put her hand on his penis and her hand was in contact with his penis for a short time before she was managed to free it (count 5).

55. The complainant gave evidence that the applicant then inserted two fingers into her vagina. She tried unsuccessfully to push him away (count 6). His fingers were in her vagina for one minute or more until she was able to move her body away. She recalled that after this the applicant slapped her on the left side of her face and said, “[d]on’t refuse me. You cannot refuse me” and she kept saying “[n]o” (count 7).

56. The struggle lasted for about an hour. She said that during this period she slipped off the bed trying to run away, and the applicant picked her up and threw her back to the bed.

57. When the applicant fell asleep, the complainant found her phone and used the torchlight to find her clothes (although she could not find her underpants) before sneaking out of the hotel room. The CCTV footage shows her leaving the room quickly with the torchlight on her phone still on. She described calling her boyfriend crying as she left the hotel, telling him she was almost raped and asking him to pick her up. She said that she waited behind a screen outside the hotel as she hoped this would conceal her from the applicant if he came out. She also called her friend Jing Jiang Feng who lived in Singapore and told her that she had nearly been raped. When her boyfriend arrived, he took her to the police station.

58. The CCTV footage from the Shangri-La Hotel on 26 December 2015 showed the complainant leaving the hotel holding a phone to her ear. She said she was then able to walk unassisted as it had been an hour since she drank alcohol, and she had a “big shock … that is why I became sober”.

59. The complainant’s phone records show that she called her boyfriend, Guan Wang, at 11.04.35pm on 26 December 2015 and Ms Feng at 11.12.45pm.

60. The complainant gave evidence that she was left with bruises and scratches, mainly on her legs, thighs and arms. She indicated that the applicant was wearing a Rolex watch, at least initially, which is what scratched her.

Allegations of blackmailing the applicant and Sam Xia’s evidence

61. The complainant explained that around two weeks after the incident she heard from other people that her boyfriend was blackmailing the applicant. She said that her boyfriend told her that he contacted a “gangster” to contact the applicant. She recounted that Mr Wang “admitted that he did that... he said he was helping me, but then he said since other people got involved he will no longer help me”. She said that she did not have anything to do with this and denied asking anyone to contact the applicant to pay her money.

62. She and her boyfriend broke up in the weeks after the assault.

63. She gave evidence that she told her friend Sam [Mr Xia] about the incident in person. She said that when they met about a week after 26 December 2015, Mr Xia suggested that she should write a new statement and that he would get her a new lawyer. She recalled that he said to her, “[w]hy didn’t you get some benefit from [the applicant], such as 50,000”. She stated that she had asked Mr Xia to lend her $2,500 for tuition fees but he transferred $5,000 to her account. He separately transferred $5,000 to a lawyer and sent her a tax invoice showing this. She disagreed that she told Mr Xia she was not able to pay her tuition fees and rent.

64. The complainant agreed that within a month after the incident, Mr Xia took her to see a lawyer in the city who had typed out a new statement for her that said she had been willing to do sexual things with the applicant. She refused to sign that statement. She stated that some time later Mr Xia contacted her and offered her $100,000 to change her story when they met in person, which she refused. A couple of months later, she said that Mr Xia contacted her again about seeing another lawyer, who she met with twice, and the lawyer told her to tell the truth about what had happened. She said that after the meeting, Mr Xia told her not to tell the truth. Six months later, the complainant said she deleted Mr Xia’s contact details from her phone.

65. Defence counsel put its case to the complainant during cross-examination. In addition to the questions concerning the defence case and the answers that I have already summarised, the questions generally suggested that the complainant was interested in making or soliciting money. Defence counsel suggested that the complainant, although affected by alcohol, was able to converse throughout the night and raised the topic of wealthy people she knew. He suggested that the applicant and complainant were flirting throughout the night and that she suggested going back to his hotel. It was suggested that she tried to get money out of the applicant after the incident, including through Mr Xia. Questions also went to the complainant’s relationship with Coco. The complainant accepted that Coco invited her to attend events with “high status, rich and good looking” people.

Evidence of Guan Wang

66. Mr Wang was in a relationship with the complainant at the time. He gave evidence that the complainant called him at around 11pm on the night of the offence and said, “[c]ome here quickly to save me, I was nearly raped by someone”. He picked her up from the Shangri-La Hotel. She told him that a man tried to have sex with her, she refused and resisted, and her clothes were taken off. She could not find her underpants and assumed that they were in the hotel room. Mr Wang gave evidence that he felt that the complainant did not want to tell him what had been done to her physically because he was her boyfriend. He took her to the Day Street Police Station.

67. Mr Wang described the complainant as not being that “emotional” at that time but looking haggard, upset and distressed. He said, “[i]t’s just like someone got drunk”. He described how the complainant vomited a lot in the car for one to two minutes.

Evidence of Jing Jiang Feng

68. Ms Feng was a friend of the complainant. She gave evidence that the complainant called her via WeChat that evening crying. The complainant told her that she had almost been raped by someone from the party and that “the guy just tried to take off her clothes, and she kept refusing… she struggled very strongly and then the guy said, ‘[y]ou’re pretending, and you are no different from those other girls who try to deceive money’… [as said] then he also hit her.” Ms Feng said that the complainant did not give any details about whether sex had occurred during the phone call.

Evidence of paramedic Lauren Milne

69. Lauren Milne, a paramedic employed by the NSW Ambulance Service, spoke to the complainant at the Day Street Police Station at around 12.02am on 27 December 2015. The complainant told her that she had drunk three glasses of white wine and had been feeling sick and vomited. There was some inconsistency in Ms Milne’s evidence about whether the complainant told her that she agreed to go with the applicant back to her hotel room or a hotel room. During examination-in-chief, Ms Milne agreed with the Crown prosecutor’s proposition that the complainant said that the applicant offered to take her “back to her hotel room”. In cross-examination, Ms Milne agreed with defence counsel’s proposition that the applicant offered to take her “back to a hotel room”.

70. Ms Milne gave evidence that the complainant told her that when they had started kissing, the male had forced his tongue into her mouth, and she bit his tongue. The male tried to have sex with her, and she said no and told the male that she had a boyfriend. There had been a physical fight between her and the male. When the male fell asleep, she then snuck out of the room.

71. Ms Milne said she observed the complainant take a few unsteady steps and felt she needed to stabilise her to stop her falling over. The incident detail report, which Ms Milne said may have been made by the call-taker who allocated Ms Milne the job, said that the complainant was completely alert and responding appropriately. Ms Milne agreed that the complainant’s Glasgow Coma Scale result was 15 out of 15 which indicated that her responses were normal, and that she did not observe evidence of an allergic reaction or anaphylaxis. She also agreed that she had recorded that the complainant had an “altered conscious state” and “vomiting post alcohol consumption”, along with other similar observations, on the consolidated ambulance electronic medical record.

Evidence of Amanda Woods

72. Amanda Woods, the duty manager at the Shangri-La Hotel on the night, told police at about 1am on 27 December 2015 that the room they were describing to her was room 1319 and the registered guest was Longwei Xu.

Evidence of Detective Senior Constable Luke Lieschke

73. Detective Senior Constable (“DSC”) Luke Lieschke, the officer in charge of the investigation, observed the complainant at the Day Street Police Station on the night. He described her as being scruffy and a little dishevelled with slow speech and movements. He saw her vomit and thought that she might have been intoxicated.

74. Sometime later, DSC Lieschke and DSC Beau Egan went to room 1319 at the Shangri-La Hotel and spoke to the applicant, who was placed under arrest and asked to provide identification. DSC Lieschke located a pair of black underpants, the applicant’s mobile phone, and a Rolex watch in the room. The black underpants, dress and bra worn by the complainant, and a blood sample they had taken from her were sent for forensic examination. Tape lifts were taken from the inside crotch area of the black underpants and various areas of the bra, which were later tested for the applicant’s DNA. DSC Lieschke agreed that there was no evidence of the applicant’s DNA in the complainant’s vaginal area and no DNA match on the bra. DSC Lieschke observed that one side of the bra attachment was frayed, and the other side was not. The Rolex watch was not sent for testing.

75. DSC Lieschke said he was not aware of the complainant having any injuries and she was not in a state to be photographed, as she appeared intoxicated and in need of medical attention. He also said that no inquiries were made as to whether the complainant had bitten the applicant’s tongue and the applicant did not complain of any injuries.

Evidence of Dr Maria Bastas

76. Dr Maria Bastas examined the complainant between 3.15am and 4.15am when she presented to the Royal Prince Alfred Hospital (“RPA”) sexual assault service on 27 December 2015. She noted that the complainant said the following: she was encouraged to drink wine at a gathering and had about three glasses; she felt dizzy and was unsteady on her feet; the males at the place were talking about taking her home; a male took her to a hotel next to the house; she felt dizzy and lay on the bed; the male took off his clothes, got into the bed with her and took off her clothes. She noted the following about the details of the offence:

“And then the male got into – or took off his clothes firstly and got into the bed with her and then took off her clothes. Then he tried to – well then I’d have to – as far as the details go, he was holding her and pushing her hands, yeah holding her and pushing her hands and he was – he put her legs over her head and then he tried to put his penis in her vagina but she kept moving about so as to avoid that happening. And he – it wasn’t clear whether he penetrated her to any extent, but it appears he didn’t. But then he proceeded to put his fingers in her vagina. He kissed her and he also said to her if he didn’t let her – if she didn’t let him have his way with her, he would, he would hurt her. And he also slapped her on her left cheek. She was resisting and she was moving about to avoid having sex with him, I understood from the history. And anyway at – in summary, he got tired, he fell asleep and once he fell asleep she got up, got dressed, couldn’t find her underpants, and then left the hotel. Apparently she called her boyfriend, he came and picked her up; that’s following the events.”

77. Dr Bastas recorded in the history that the complainant recalled drinking about three glasses of white wine between 8pm and 9pm and that her last meal was at 9pm. She confirmed that the complainant weighed 52kg.

78. Dr Bastas obtained a number of samples from the complainant, including a high and low vaginal swab and smear to detect DNA and sperm, and blood samples.

79. Dr Bastas noted several injuries, including scratches and bruises on the complainant’s legs, inner thighs, arms and hands. She gave evidence that it was difficult to determine the cause of the bruises and they may have been accidental, although it was less likely that the scratches on the inner thighs were accidental. She said the bruises were probably three or four days old but could have occurred in the last two weeks, reiterating that it is difficult to age bruises.

Evidence of Sandra Trabuio

80. Sandra Trabuio is a senior forensic biologist at the Forensic Biology DNA Laboratory at the Forensic & Analytical Science Service (“FASS”) who examined the samples taken from this case. She gave evidence that whether DNA was likely to be found on the complainant’s bra and underpants depends on how much DNA was transferred, which is contingent on the length of time of contact with the item and whether there was friction. She said that two possible reasons why the applicant’s DNA was not found on the tape lifts taken from the complainant’s underpants were that he either did not touch them or that he touched them and did not deposit enough DNA for detection.

81. Ms Trabuio gave evidence that it is difficult to retrieve foreign DNA from the vagina in particular and that no foreign DNA was detected in 70% of cases where digital penetration had occurred. She stated that male DNA was identified in the complainant’s vaginal swabs, however it was too weak to include or exclude anyone from being the contributor.

82. The major component of the DNA mixture from the applicant’s hands had the same profile as the complainant.

The applicant’s electronically recorded interview

83. The applicant participated in an electronically recorded interview with DSC Lieschke and DSC Egan on 27 January 2015. He said that the complainant drank one or two glasses of wine, and he did not believe her to be intoxicated but during dinner the complainant had said that she was drunk and that “she can’t drink”. He said that once they got to the hotel room, they both took off their own clothes (on his part because he was hot) but the complainant left her underwear and a t-shirt on. He denied kissing her, pushing her legs apart, using fingers to penetrate her vagina and being sexually aroused. He said they had body contact, “like hug together”, and agreed he may have touched the outside of the complainant’s underwear but not the inside.

84. As to the complainant’s demeanour, the applicant said that her body language was “not saying mean to me, it’s not saying, fuck off … She was fine”. He initially said that he did not think the complainant had fallen to the floor but later said she had fallen once or twice.

Defence case

85. The defence case was that the complainant had exaggerated both her state of intoxication and what occurred in the hotel room. On the defence case, it was the complainant’s idea to go back to the applicant’s hotel room with him. The applicant got into bed with her but once she said, “I’m not that kind of girl” the applicant ceased what he was doing and did not go on to indecently or sexually assault her. He asked why she had come back to his hotel room if she was not going to have sex with him.

86. The defence case was put in this in way in the closing address:

“First of all, in terms of the question of what happened in the hotel room, if it can ever really be known - that’s a matter for you - there was no contest in the trial that the complainant said, ‘Well, I’m not that kind of girl’ and the complainant said words to the effect of, ‘I have a boyfriend.’ Those words or those statements from the complainant are not the whole of the evidence, but they’re an important verbal aspect in the case as to her indicating that she did not wish to proceed any further, as of course was her right to do.

…

Does the accused know, prior to his being told, that she is not the kind of girl that wants to then proceed to further or other or any sexual contact in the hotel room? Does the accused know that? That’s an entirely separate question from the actual issue of the consent or state of mind of the complainant.

…

Members of the jury, it's not the defence case, as you'll be aware well and truly by now - unless I will have failed in terms of putting the case for the accused - that at some stage [the complainant] communicated that ‘I don't want to’. The question before you in some respects, perhaps some important respects, is did the accused persist in such a way as to infringer the administration of the law having regard to the tests about which your Honour will direct you.”

87. The applicant did not give evidence at the trial but called a number of witnesses.

Evidence of Wenbo Cao

88. Wenbo Cao attended the party and looked after the drinks. He said that the complainant asked him for white wine, and nobody told him that the complainant did not want any alcohol or that she was allergic to it. He denied trying to force the complainant to drink alcohol or seeing anyone else do it. He said that the complainant and the applicant got along well, and they sat next to each other and chatted often, occasionally whispering to each other.

89. Mr Cao said that he saw the complainant ask the applicant to “take her back to the hotel” and they left. The complainant realised she had forgotten her bag, so Mr Cao got it for her. He said that she did not appear intoxicated or heavily affected by alcohol.

90. He gave evidence that he was not paying attention to Candice and did not see if she had gone to lay down on the couch to sleep.

Evidence of Sam Xia

91. Mr Xia had met the complainant two years prior to the assault. They met up at the end of 2015 before the new year. Mr Xia gave evidence that the complainant messaged him or called him and told him that she went to a function and was nearly raped.

92. He said that they met up in the new year and he asked whether the applicant did anything to her, to which she responded, “[n]ot really … [the applicant] wanted to have intercourse … but she said ‘[n]o’”. He said that she recalled that Tommy [the applicant] asked, “[w]hat do you mean, like you come to the hotel with me and you don’t want to have intercourse with me?” and she responded, “I’m not that kind of cheap girl”. He explained that she said her boyfriend was texting her and she did not want to tell her boyfriend that she was in a hotel room with another man so “she told her boyfriend she was raped”.

93. Mr Xia also gave evidence that the complainant asked him to contact Coco to get money from the applicant as she needed money for tuition fees and living expenses. He said he had already given her a total of $5,500 (transferred on two occasions). He thought that the complainant deleted him because he would not help get money out of the applicant.

94. Mr Xia also said that he had never met or communicated with the applicant at the time. He said that the only time he met the applicant was in September 2017, when a friend invited him and others for a meal. Mr Xia said he recognised the applicant because he was active in the WeChat group. They started chatting and Mr Xia said to the applicant “so you are the unlucky guy. You were charged for … rape.” Mr Xia said that he told the applicant that he “almost dated that girl and she wanted to get money from you”.

Evidence of Jerry Wang

95. Jerry Wang was called as a character witness. He gave evidence that he had known the applicant for over three years and believed him to be an honest person who tends to be happy and not violent after a few drinks.

Evidence of Li Gao

96. Li Gao was called as a character witness. She was a friend of the applicant and had been involved in a sexual relationship with him. She said that he had no difficulty with her refusing sexual intimacy, he was the more submissive one in the relationship, and he was “more soft”.

GROUNDS OF APPEAL

Introduction

97. Before turning to consider each of the seven grounds of appeal, I would make three introductory observations.

98. First, there was a significant amount of repetition of certain submissions across the various grounds of appeal. If an argument is repeated under a separate ground, I have only addressed it once, the first time it appeared.

99. Secondly, some of the complaints made under these grounds were raised before the trial judge, some were not and in some cases an argument was put in this court contrary to the position taken by trial counsel. Although I will point out the change in position in some instances, I do not propose to do so in all cases in the interests of brevity.

100. Thirdly, in relation to each of grounds 2-6, it is contended that the particular error caused a “substantial miscarriage”. I have proceeded on the basis that what is meant by such language is that there was a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act and that the court would not apply the proviso; that is, the court would not dismiss the appeal on the basis that “no substantial miscarriage of justice” has actually occurred.

101. In order to establish a miscarriage of justice, the applicant must show that there is a "real chance" that what occurred affected the jury's verdicts: Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 at [47] per Kiefel CJ, Keane and Gleeson JJ; at [118] per Gageler J. As Beech-Jones CJ at CL (with whom Davies and Wilson JJ agreed) observed in Zhou v The Queen [2021] NSWCCA 278 at [22]:

“To constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 such an irregularity has to be prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J) or ‘realistically [could] have affected the verdict of guilt’ (at [123] per Gageler J) or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’ (Edwards v The Queen [2021] HCA 28 at [74] per Edelman and Steward JJ).”

102. Only if the appellate court is satisfied that there has been a miscarriage of justice does the court turn to the question of whether it is satisfied that no “substantial” miscarriage of justice actually occurred. While there is no universally applicable test for when there will have been no substantial miscarriage of justice, an appellate court can only conclude that no substantial miscarriage of justice occurred if it is satisfied that evidence properly admitted at trial established guilt beyond reasonable doubt: Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 at [20] and [41]. This requires a consideration of the nature and effect of the error that gave rise to the miscarriage of justice: Orreal v The Queen at [20] and [41].

Grounds of appeal

Ground 1:   The trial miscarried by reason of the prejudice occasioned by the Crown prosecutor’s opening address to the jury asserting that the complainant was “so substantially affected by alcohol” it negated consent.

Ground 2:    A substantial miscarriage of justice was occasioned from the convictions of the appellant in relation to counts 1-6 as a result of the trial judge’s failure to discharge the jury after the Crown prosecutor’s opening address.

Ground 3:    A substantial miscarriage of justice was occasioned as a result of the trial judge’s failure after the prosecutor’s opening address, and later in the trial judge’s summing up, to give the jury a full direction of the law on intoxication and consent.

103. Grounds 1, 2 and 3 were addressed together by the Crown as they all relate to the Crown prosecutor’s opening address.

104. The Crown opening address was very detailed in its recitation of the elements of the offences. As is the usual practice, the Crown prosecutor observed the following in the context of her explanation of those elements:

“… [W]hen I explain some of the counts on the indictment to you and how the Crown puts its case in relation to that, to the extent that I might raise or talk about any issues of law you should bear in mind that it's what her Honour will say to you through the trial or at the end of the trial about the law that you're obliged to follow, not what I might say, not that there will necessarily be any difference about that, but just keep that in mind as well.”

105. She went on to explain the elements of lack of consent and knowledge of lack of consent in this way:

“I'll start with count 6. Count 6 alleges that the accused had sexual intercourse with [the complainant] without her consent, knowing she was not consenting. What that relates to is [the complainant’s] evidence that the accused when they were struggling on the bed that he inserted his finger into her vagina. That's the discrete act that that charge relates to. That has three essential elements that the Crown has to prove beyond a reasonable doubt and you'll be receiving some detailed directions about this at the end of the trial. First, the Crown has to prove that the accused had sexual intercourse with the complainant, so with [the complainant].

The second, that the intercourse occurred without her consent and the third is that the accused knew at the time of the intercourse that [the complainant] was not consenting. That's what needs to be proven in terms of that count. The first element that the accused had sexual intercourse with the complainant, again at the end of the trial you will receive some detailed directions about this from her Honour. I expect that she will tell you that if you find that the accused's finger or fingers penetrated to any degree the genitalia of [the complainant], so it includes the vagina that that will be sexual intercourse for the purposes of the law.

Now the second element, which is that the intercourse occurred without the complainant's consent, so, without [the complainant’s] consent, the Crown has to prove that [the complainant] did not consent to the intercourse and, in relation to that again, her Honour will tell you what consent means, and what can be taken into account when you're looking at that but, just for the purposes of you understanding the Crown's case, a person consents to the physical touching, if they freely and voluntarily agree to it.

The Crown's case is that [the complainant] did not consent and was never in a position to consent given that she was so substantially affected by alcohol, so, she was intoxicated by alcohol. Also, the Crown says that [the complainant] did not, in fact, consent, as in she communicated to the accused, when they were in the room, when they were on the bed, through the resistance to the accused, and also what she said, that she did not consent. The third element is that the accused knew, at the time of the intercourse, that [the complainant] did not consent. That might, at first, strike you as a bit difficult.

How can the Crown prove, beyond reasonable doubt, what a person knew, or what was in the accused's mind, unless they admit what was in their mind? The answer to that question is that the Crown will ask you to infer, or conclude, from the evidence that you hear, that the accused knew that [the complainant] was not consenting and did not honestly believe that she was consenting to the sexual intercourse. The Crown's case is that the accused knew that she was not consenting and knew that she was so substantially affected by alcohol that she was not in a position to freely and voluntarily agree to sexual intercourse.

There are two other ways that the Crown can also prove this third element of knowledge, that you can also be satisfied about. That is, firstly the Crown can prove knowledge, if you satisfied beyond reasonable doubt, that the accused was reckless as to whether [the complainant] consented to the sexual intercourse, and her Honour will provide you with some directions about what that means, so, what it means to be reckless about something.

Just for the purposes of my address to you, I expect that that will be to the effect that the Crown must prove that the accused failed to consider whether [the complainant] was consenting at all, and just went ahead with the act of sexual intercourse, even though the risk, that she was not consenting, would have been obvious to someone with the accused's mental capacity, had they turned their mind to it.

The other way in which an accused can be reckless is if the Crown proves that the accused realised the possibility that she was not consenting, that, realising the possibility that she was not consenting, went ahead regardless of whether she was consenting or not. So, the Crown's case, in relation to recklessness, is that the accused knew the extent of [the complainant’s] intoxication and that he was reckless as to whether or not she consented to the sexual intercourse. The Crown can also prove knowledge, if the accused did not believe that [the complainant] was consenting to sexual intercourse - sorry, if he did believe that she was consenting to sexual intercourse but had no reasonable grounds for that belief.

So, the final element of knowledge, there are a few things for you to consider, and you will receive some detailed directions about that at the end. When you do come to consider the accused's knowledge about consent, and about what his state of mind was at the time of the alleged sexual intercourse, the Crown case is that, as a matter of law, you can, and should, consider any steps that he took to ascertain whether or not [the complainant] consented to the sexual intercourse and you can't take into account, when you're looking at that, the effects, or the impact, of any alcohol that he'd had, or he'd consumed, may have had on that question.

So, if you form a view that the accused had had some alcohol, or was intoxicated at the time of the intercourse, you must put that to one side when you come to consider that third element of the offence, that is the accused's knowledge as to lack of consent.”

(Emphasis added.)

106. When the jury left the courtroom after this opening, counsel for the applicant complained about the italicised portion of the above passage in the following terms:

“WEBB: My learned colleague has raised intoxication and intoxication as I understand it to arise in the evidence insofar as the complainant is concerned is self-induced intoxication in the sense that whatever happened at the party the alcohol was not force-fed or introduced via tube or something of that nature.

In that context I understand the Crown to have submitted that because of the degree of intoxication which ran with the state of mind or extinguished insofar as has relevant a state of mind capable of not indicating a consent that the intoxication on the part of the complainant made her incapable of indicating consent or the lack of it.

At the same time, it is, as I apprehend, submitted in the alternative that even given the, effectively, incapable condition of the complainant that failing that, that the accused was reckless as to the fact of what is in essence, perhaps not unconsciousness, but similar insofar as consent is concerned. So, a person of course as your Honour would accept who is incapable of consent is at law not in a position greatly dissimilar to a person who is incapable or unconscious.

In my submission in terms of where that places the issue of intoxication it is submitted problematic, because the issue of intoxication has been raised as going to the complainant being incapable of consenting at the same time intoxication can't be taken into account in anyway shape or form and that part in my respectful submission is likely right as to the accused conduct.

(Emphasis added.)

107. Her Honour responded in this way:

“HER HONOUR: Yes. I don’t think the Crown has said anything illegally [sic legally] incorrect. Are you submitting that factually it doesn’t apply or are you saying that there was an error of law?”

108. Defence counsel replied:

“WEBB: The first submission on the issue of law is that intoxication has been deployed on the one hand so as to render in substance and at law the aspect of consent irrelevant insofar as the complainant's concerned because the complainant is in effect unconscious and at the same time if the accused had had anything to drink, of course, it will establish that he could not make intoxication excepting very particular circumstances consistent with other doctrines which are no application really on these facts that he could not avail himself at all of intoxication which in my submission is undoubtedly the position.

So, the issue of intoxication is used in a way and in my submission, which is legally not right. This is not upon the facts in my submission a case of intoxication being so severe or manifest as to render the complainant incapable of consent and then it is—"

109. Again, her Honour asked:

“HER HONOUR: That's what I was asking. Are you saying the facts don’t present intoxication to be in issue?”

110. The following exchange then took place:

“WEBB: In my submission, not to the extent of rendering consent are [sic] irrelevant because - of course, consent is always relevant but simply that the complainant was so intoxicated as to be incapable of consent. In those circumstances it is in my submission that makes the considerations in relation to the third element quite complex and in my submission in the way in which the Crown opening has been cast perhaps irreparably unfair to the accused and perhaps also irreparably unfair in respect of the question of consent in fact as is generally considered in what might be called the second element. It's a highly legal opening which has - so open very high on the law, not--

HER HONOUR: I'm not sure about very high. I'd say very broadly.

WEBB: Very broadly, with great--

HER HONOUR: There's perhaps nothing left for me to say at the end of the trial.

WEBB: With great complexity and your Honour in the circumstances as they are in my submission your Honour may consider either discharging the jury on the way in which intoxication has been opened upon regrettably and it is my submission that intoxication being put in - train in that way, if the jury found for whatever reason that the complainant was not so intoxicated as to be unconscious and incapable of indicating one thing or another as is ad idem with unconsciousness or sleep it would be very difficult for the jury to then do other than acquit.

In other words, if the jury found that the degree of intoxication was not so severe as to in effect render the complainant unconscious then the jury would be in a difficult and dangerous position as to questions of recklessness adverting to the possibility and matters of that kind.

HER HONOUR: Well at this stage I don’t detect that there is a problem with the way the Crown has opened. The Crown very appropriately referred to the fact they're bound by anything I say and from what I heard and what I made a note of, I don’t think the Crown has made any error in relation to giving a very fulsome indication to the jury as to what they would be looking at and everything that possibly could arise.

I know that s 61HA sets out the matters and I think it has been largely compliant, well not largely, been entirely compliant with what's set out in there. It may well be ultimately on the facts that some of those directions aren't necessary to be given at the end of the trial when I perform my role, but I don’t think there's been any error with what the Crown has opened on. There is a live issue in relation to the complainant's intoxication as I understand it given all of the evidence about what can be observed about the manner in which she walked or stood or responded so clearly intoxication is in issue.

WEBB: Your Honour it is in issue but in my--

HER HONOUR: But it may not ultimately be in issue at the end of the trial. It may well be because the complainant on what has been opened on was repeatedly and strongly indicating a lack of consent that that may be all the jury need to be directed on. It's a little bit hard until I hear all the evidence but I'm not sure that anything - well, I don’t think it warrants a discharge because the Crown has indicated anything that she says at this stage is subject to anything I say towards the end and she's just very fully covered all of the provisions by which a jury may well reach a determination. If some of those have no significance at the end of the trial then they won't be directed on, but I'm not saying they don’t have significance because I don’t know how the evidence will pan out.”

(Emphasis added.)

111. I pause here to note that the trial judge clearly did not have a transcript of what the Crown had stated but, having listened to it, she did not consider there to be any misstatement of law or any other difficulty with the opening, besides the fact that it was very long and detailed. Her Honour observed, correctly, that the Crown had told the jury that anything she said was subject to what the trial judge said and that at the end of the Crown case it may be that not all of the different bases put to the jury in the opening would be the subject of directions to the jury. Her Honour observed that she was not aware of the evidence and thus not in a position to discharge the jury. Defence counsel went on:

“WEBB: In my submission it would be difficult to conceive of an accused in one way shape or form who would not be guilty in relation to what's gone on in the hotel room in the course of the learned Crown's opening. In my respectful submission when your Honour sees the evidence as it unfolds your Honour would be troubled in relation to the degree of intoxication opened on and with respect it is opened on to the extent that it's placed before the jury as a matter of principal significance that when all is said and done and when the sun sets on the point, ladies and gentlemen, the complainant was incapable of consent.

That also intersects of course with questions of recklessness as they relate to the third element namely by reason of the fact that in a manner of speaking the complainant was out cold or unconscious as to the issue of consent for that reason the accused surely ought to have known and you'd be satisfied beyond reasonable doubt that in fact the complainant was completely was not conscious. In my respectful submission, it is a very dangerous address and a discharge of the jury is sought rather than to try and pick up the pieces from here and there is reparable prejudice.

Also, as a judge of very considerable learning and experience for the defence to limp on with more baggage now than an aircraft carrier these things do not assist in the fair conduct and disposition of the real issues which would be in dispute in this trial. So, it may be he's submitted respectfully to be inadequate to leave something like that in the closet of reflection affecting the jury's deliberations at this stage when your Honour will have, with respect, concerns as to what's going on vis-à-vis that level of intoxication.

The first respectful application is discharge because of the reparable (sic) damage done in firstly as to a no doubt in advertent complete misstatement of the position vis-à-vis intoxication in this case and the splicing of that unconscious state with the question of recklessness and in my submission going forward from here you'd recommend the discharge of the jury. That's my first submission.”

(Emphasis added.)

112. Defence counsel then went on to make an alternate application on the basis that her Honour was not inclined to discharge the jury. That application was to the effect that he should not be bound by s 159 of the Criminal Procedure Act1986 (NSW) in his opening. During submissions on that application, the following exchange took place:

“WEBB: Your Honour, the difficulty is going forward in the case that the jury will perhaps regard the intoxication to that degree to be in some way relevant where on the evidence in my submission it doesn't really come up to proof on that issue. It has a close relationship also to recklessness and

HER HONOUR: If you were right then there would be no such direction. You're saying the Crown shouldn't have opened on it and in due course I wouldn't be giving a direction on it. That's your submission; that the evidence doesn't allow for that?

WEBB: The evidence falls short of intoxication to that degree. Yes.

HER HONOUR: So, at the end of the trial when I give my directions, assuming you're correct, I will not be giving a direction in relation to the complainant's intoxication? I will not be giving whatever it is, 61HA(6)?

WEBB: Yes

HER HONOUR: So, the jury will, if you are right, not receive that legal instruction?

WEBB: As to the complainant?

HER HONOUR: They need to receive one as to the accused, I don't think you're challenging that.

WEBB: I wouldn't be raising intoxication on the part of the accused to any degree.

HER HONOUR: Let's just pull it back for a moment. From the notes that I took my understanding of what the Crown Prosecutor did was to address very widely in relation to all the bases that the Crown could seek to prove its case. Intoxication arose in relation to the complainant, all the different ways in which the Crown could satisfy the element of the accused's state of mind. All of those matters were very fully opened on as part of an opening that went through the different elements that applied for different types of offence to a jury who at the time were only armed with a copy of the indictment, but no writing material in, what was a very detailed opening.

I would be most surprised if the jury retained the detail of the opening. I think the Crown very fairly indicated to them that it was to assist them, that it was subject to anything being directed upon differently at the end of the trial, but also an acknowledgement that they weren't in a position to make notes. Any lasting memory of the detail of the elements would be hard to accept. You are very skilled in this, Mr Webb.”

(Emphasis added.)

113. In refusing the discharge application her Honour stated the following:

“HER HONOUR:  The Crown is very skilled and I have some skill, because we all look at the bench book, and so we also look at the provisions that guide us in the offence provisions. We know the key words to listen for and we know where things are going. To an untrained person, as I assume most of the jury are as far as the law, I do not for a moment contemplate that they would have taken a firm and full understanding of how the Crown can prove these charges with the different ways in which offences can be proven.

Even if there was an error, and I'm not saying there was, I don't think it would have been one that would warrant a discharge. On your first application, even without hearing from the Crown, I'm against you.”

114. As for the application not to be bound by s 159 of the Criminal Procedure Act, her Honour inquired the following of defence counsel:

“Why would you need to go into this area in any detail?  What is your case?  Your case, as I think you indicated earlier, is not necessarily accepting all of the acts, but to the extent that some things happened, that the Crown isn't in a position to prove certainly element three of the accused's state of mind.”

115. The following exchange then took place:

“WEBB:  Insofar as it relates to those charges where it's an opposite consideration, and that the jury, as the fact finders, before all this doom and gloom descends upon the accused they'll need to first determine what certain facts are or find certain facts as to what happened in that hotel room.

HER HONOUR: So, what I'm getting at is from what you have indicated you seem to have a very clear case. Why would you be descending into detail that you wouldn't normally have an entitlement to do because of s 159?

WEBB: Section 159 would not waylay reference to facts in dispute, one fact which is in dispute and which is now very relevant, it is submitted, merely because the learned Crown Prosecutor as a minister for justice has opened to the jury on the issue. Well, was the complainant unconscious or in substance unconscious?

HER HONOUR: But you are entitled to do two things under s 159; to indicate what is in dispute, so if you're saying it is challenged that the complainant was intoxicated or that she passed out you're entitled to do that in any event, and to say what your case is. So, what do you envisage you need to say that goes outside of the limitation?

WEBB:  It may be a matter, less appropriate for an advocate and more appropriate for the learned presiding judge that - not to give excessive weight or to view the evidence in such a way as to overstate the position of intoxication.  The danger, of course, is‑‑

HER HONOUR:  Sorry, you want me to say that?

WEBB:  I don't, with respect, think that it's really capable of correction by an advocate insofar as‑‑

HER HONOUR: Mr Webb, if it's in dispute by your client and it's something that falls within what is provided under s 159 then it is appropriate that you say something.  I don't think it's appropriate I say something at this stage because I haven't heard any of the evidence and the evidence is outlined by the Crown as anticipated evidence and until I actually know what the evidence is in the trial then it isn't prudent for me to be launching into some discourse about what I anticipate the evidence will be based upon what the Crown opened on.  I don't think it's appropriate I say something, but given that your second application is that you not be limited by s 159 what is it that you want to say that goes beyond it?

WEBB:  Firstly, one issue is, as the Crown asserts as relevant in the Crown's opening address, the complainant is unconscious and therefore the issues of consent ultimately don't arise in the sense that there's nothing to assess in the sense that the complainant is in a somnolytic state or out cold for all intents and purposes.  If the evidence falls short of that then it really sets up the issue of recklessness so if you don't find that the complainant is unconscious surely you'd find that the accused must have been reckless to state which was close to unconscious.  It's a troubling address.

HER HONOUR:  Sorry, I'm losing the gist of your application.  I'm also perhaps going back through my notes.  My notes have, from what the Crown opened on, certainly there was a time at the Quay West apartments where the complainant has her head down on a table and has great difficulties, but there's no sexual activity that occurs there, so it's then the 13th floor hotel room.

WEBB:  That relates to something I think that the complainant asserts of herself.

HER HONOUR:  That's all I'm dealing with because that's all that's been opened on.  I'm just dealing with the material the Crown opened on.  The 13th floor, that the complainant could not stand or sit, so she lay down.  She was in a position of replying to a text and then the accused commenced by taking his clothes off, got into bed, and then there were various touchings, manoeuvrings, resistance that goes on, and it takes I think about an hour from what the Crown indicated in opening.  Was there an indication during that time of various sexual touching, various acts of resistance by way of physical acts and words spoken, that there was an indication that the complainant was unconscious?

WEBB:  Yes, insofar as the complainant did not consent on account of intoxication and that was‑‑

HER HONOUR:  No, in the opening did the Crown say, from your recollection, that during that time the complainant was unconscious.

WEBB:  I have a note here, whether it's right or not, I'm ginger about that, that by reason of the intoxication that the inference was the complainant was incapable of consent.  That was how I understood the address, which is not the test; that the complainant was incapable of consenting on account of the degree of intoxication.  That's what in my submission goes to issues of the degree which is really not very obvious.

HER HONOUR:  So as succinctly as you can, just so I can process it, what do you precisely want to say?  What is your application as to what you want to say beyond what 159 provides that you can say?

WEBB:  To suggest to the jury that - I don't think it can be said in an opening address on reflection, your Honour.  If the jury found that the complainant had reached a stage which fell short of her being incapable of consent that places the jury in a very difficult position as to assessing recklessness because of the intoxication.  It's not about recklessness as in certain gestures were made or certain things were said.  It's about recklessness on a very particular ground, namely the intoxication was so severe that the complainant is incapable of consent.  That's a different species of recklessness.

201. The Crown objected to the complainant being cross-examined on this document on the basis of relevance and failure to meet the test in s 103 of the Evidence Act.

202. The trial judge was concerned that there was no indication from the document that the complainant was under an obligation to tell the truth at the time. Although it might be inferred that the process of examinations requires some standard, the difficulty was that it was not known even whether there was an exam or what was involved at all. In those circumstance, the trial judge was not satisfied that the material was something that could “substantially” affect her credibility. Her Honour concluded:

“HER HONOUR: --. It's two years distant from the matter before the Court and although it seems to be something that is part of a formal course of study I'm not sure it equates with under an obligation to tell the truth. On the material currently placed before me I'm not inclined to allow the admissibility of it. I do not determine that it would substantially affect the credibility of the complainant.”

Applicant’s submissions

204. The applicant submitted that a substantial miscarriage of justice was occasioned as a result of the trial judge’s ruling to disallow the complainant to be cross-examined as to the “cheat fail” on her academic record in 2017.

205. The applicant submitted that the exception to the credibility rule in s 103 of the Evidence Act applied as the evidence could “substantially” affect the assessment of her credibility. It was submitted that it ought to have been submitted because “academic misconduct is a very good example of where there was some (moral or legal) obligation to tell the truth”. It was also submitted that the trial judge erred when she found the cheating was two years distant to the matter before the court (a matter the court may have regard to under s 103(1)(b) of the Evidence Act) because it, in fact, occurred one year prior to the trial commencing.

Consideration: Ground 6

206. Section 102 of the Evidence Act provides that “Credibility evidence about a witness is not admissible”. There are a number of exceptions to that rule, one of which is in s 103 of the Evidence Act, which is in these terms:

103   Exception: cross-examination as to credibility

(1)  The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

(2)  Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to—

(a)  whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and

(b)  the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

207. The trial judge upheld the Crown objection to the defence being permitted to cross-examine the complainant on the subpoenaed document due to the paucity of detail in it. There was no evidence as to what the “cheat fail” related to and no evidence that it related to a circumstance where there was an obligation to tell the truth. In those circumstances, no error is disclosed in the finding by the trial judge that such cross-examination could not substantially affect the complainant’s credibility.

208. No error is disclosed in her Honour’s assessment of the potential for the document to be used as a basis for substantially affecting the complainant’s credibility. Nor is any error disclosed in her Honour’s reference to the effluxion of time of two years: the “cheat fail” entry was recorded two years after the alleged sexual assault in this matter.

209. I would not uphold ground 6 for these reasons and the reasons of Hamill J which I agree with and adopt.

Ground 7:   Unreasonable verdict

210. The applicant submitted that the verdicts of the jury should be set aside on the ground that they are unreasonable or cannot be supported, having regard to the evidence. The applicant relied on 12 separate arguments, one of which contained four sub-arguments and another which contained eight sub-arguments. The applicant also relied on two “new” pieces of evidence: the CCTV footage and the evidence of the complainant’s home address. I shall consider that new evidence as it arises in the context of the applicant’s submissions.

Applicant’s submissions

211. The applicant submitted that there are 12 issues of “inconsistencies, discrepancies or other inadequacy” with this conviction, namely:

1. The absence of the applicant’s DNA on the vaginal swabs and smears, the complainant’s bra and underpants;

2. The inadequacy in the evidence of the complainant’s alleged bruises and scratches, including the evidence of Dr Bastas that the bruises may be older;

3. The lack of evidence of the complainant’s skin from under the applicant’s fingernails or the complainant’s DNA on the applicant’s watch;

4. The inadequacy in the evidence of the complainant allegedly biting the applicant’s tongue, as there was no DNA testing and no evidence the complainant made such an allegation to police or Dr Bastas;

5. The inadequacy in the evidence of the complainant allegedly kicking the applicant, as the complainant did not tell DSC Lieschke, Ms Milne or Dr Bastas that she kicked him and there was no evidence of injury;

6. The lay “non-expert” interpretations of whether a torn thread from the complainant’s bra had been caused by the applicant. The applicant made four sub arguments in respect of this evidence. The applicant submitted that:

1. The evidence of the bra and damage to the bra is inadmissible because of the lack of expert evidence (counsel withdrew this submission during the hearing of the appeal);

2. In the absence of expert evidence, the bra did not support the complainant’s allegations;

3. The complainant’s evidence about damage to the bra was not supported by complaint evidence; and

4. The nature of the damage opened on differed from the evidence the complainant gave and that the Crown closed on.

7. The lack of explanation as to how the complainant’s cardigan and dress were taken off her by the applicant, which adversely impacts the complainant’s credibility;

8. The Crown prosecutor’s subjective interpretations of the CCTV footage, which the applicant submits were not supported by the complainant’s evidence. There were eight sub points to this submission. One aspect was the contention that in the absence of supporting evidence from the complainant, the Crown prosecutor’s submissions about what was occurring were not open. The applicant also submitted that the complainant’s phone records are inconsistent with the complainant’s evidence as there is no record of the complainant’s text to her boyfriend, and there are Vodafone entries during the period that the complainant said she was looking for her phone;

9. The absence of expert evidence about the complainant’s level of intoxication;

10. The absence of independent expert evidence about the complainant’s vomiting;

11. The Glasgow Coma Scale assessment of the complainant’s level of consciousness as 15/15;

12. Ms Milne’s evidence as to whether the complainant said on the night that the applicant offered to take her back to a hotel or her hotel. It was submitted that this may have led to doubt about the complainant’s credibility in circumstances where there was no evidence that the complainant was living in a hotel. The applicant submitted that the trial judge made a partial error in stating during summing up that the complainant said there was an agreement to go home, and that the complainant told Ms Milne that there was an agreement to go back to her hotel.

Crown submissions

212. The Crown provided detailed submissions responding to each of these arguments in turn. I will address those submissions in my consideration of this ground below.

Consideration: Ground 7

213. The relevant principles for an appellate court to apply when considering whether a verdict is “unreasonable” in this context are well established. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63, Mason CJ, Deane, Dawson and Toohey JJ explained the relevant test in this way (at [7]) (footnotes omitted):

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

(Emphasis added.)

214. The High Court re-stated the applicable test in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In their joint judgment at [13]-[14], French CJ, Gummow and Kiefel JJ stated the following (footnotes omitted):

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

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

…

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

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

215. The test was re-stated again more recently in Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25. The joint judgment of Gageler, Keane, Gordon, Steward and Gleeson JJ confirmed (at [8]-[9]) that the reasoning in the joint judgment in M v The Queen requires:

“… [T]hat ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’.

The joint judgment in M made clear that ‘in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses’. The joint judgment equally made clear how those considerations are to impact on the court's independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:

‘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 [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.” (Citations omitted)

216. I am not satisfied that the verdicts are unreasonable. I consider the Crown case to have been a relatively strong one.

217. The complainant gave cogent evidence. There is the CCTV footage of her both before and after she and the applicant entered the hotel room that is consistent with her evidence. The footage at 9.49pm shows her in the lift being propped up by the applicant, unable to walk without support, and then being led to the applicant’s hotel room. Later, at 11.04pm, the footage shows her leaving the room with the torch on her phone on, visibly upset, hurrying away and waiting behind a screen outside the hotel.

218. There is also the physical evidence of the complainant’s underpants in the hotel room that she left there, consistent with her evidence that she was worried about waking up the applicant.

219. As for the evidence of complaint, the complainant called her boyfriend immediately afterwards and told him that she was nearly raped (which is depicted in the CCTV footage of her in the hotel lift with a phone to her ear and on her phone records). Her boyfriend picked her up from the hotel and took her to the police station. She also called her friend in Singapore, Ms Feng, while she waited to be picked up and told her that she was nearly raped (which is on her phone record). Her complaint to Dr Bastas at 3.15am was consistent with her evidence about how much she drank, that she felt dizzy and unsteady, and the details of the offence. Her complaint to the paramedic Ms Milne was also largely consistent. Ms Milne noted that the complainant was nauseous and walked unsteadily. DSC Lieschke said she looked dishevelled, and he thought that she might have been intoxicated.

220. The complainant had bruises and scratches on her legs, inner thighs and arms, which Dr Bastas said could be the result of an impact injury or pressure applied to her. Although the date of the bruising was unclear, her evidence was that it was unlikely that the scratches to the inner thighs could be accidental.

221. Turning to the specific complaints made by the applicant I respond as follows.

222. The absence of the applicant’s DNA on the vaginal swabs and the complainant’s underwear was explained by the DNA expert, Dr Trabuio. There are difficulties involved in retrieving foreign DNA from the vagina where the allegation is digital rather than penile penetration. The available DNA would come from skin cells rather than blood, saliva or semen. Only 30% of assaults by way of digital penetration will result in the recovery of foreign DNA.

223. Dr Trabuio also gave two explanations for the fact that the applicant’s DNA was not found on the tape lift from the underpants and bra: either the applicant did not touch the item in the area that was tape lifted; or he touched it and did not deposit enough DNA to detect. The absence of the applicant’s DNA on the items was repeatedly put to the jury in defence counsel’s closing address and obviously did not give rise to a reasonable doubt.

224. As for what was said to be the inadequacy of evidence concerning the complainant’s bruises and scratches, I do not accept the applicant’s contention that Dr Bastas’ evidence about the age of the bruises did not support the complainant’s evidence. As stated above, the scratching on her inner thighs was cogent evidence. In any event, Dr Bastas’ evidence was also put to the jury in defence counsel’s closing address.

225. There was a simple explanation as to why there was no evidence of the complainant’s skin from under the applicant’s fingernails or the complainant’s DNA on the applicant’s watch: there was no testing of these areas. That was a neutral fact; if it had been tested it may well have located the relevant DNA, but the jury should not have speculated about that. Further, the absence of a specific initial complaint by the complainant of being scratched is of little consequence given the consistency of her complaint that night overall.

226. Similarly, the fact that the complainant told the paramedic (but nobody else) that she had bitten the applicant’s tongue was a matter the jury could have regard to when assessing the complainant’s account. As with all of these minor discrepancies, it was up to the jury to give that little weight.

227. The applicant also relied on the fact that the complainant alleged that she kicked the applicant but there was no evidence of injury to the applicant. But the complainant’s evidence was actually that she tried to kick him. In those circumstances, even if a forensic procedure had been conducted on the applicant, the action described was not one that would necessarily have left a mark. Again, the significance of any omissions from account given that night falls to be considered in the context of the complainant’s sick and dishevelled state and the fact that she was seeking medical treatment, not attempting to make a detailed statement for court.

228. The applicant placed significance on what was said to be the lay “non-expert” interpretation of whether a torn thread from the complainant’s bra had been caused by the applicant. This complaint ignores the fact that the complainant was able to give direct evidence about the damage to her bra. Whether there was visible evidence to support the complainant’s statements was a matter for the jury. The jury could either accept or reject that evidence but even if the jury rejected it, it does not follow that they were bound to have a doubt about her credibility overall. As for the complaint that the Crown misdescribed the damage in her opening (by describing the buckle being damaged), the Crown prosecutor told the jury that what she said was not evidence. The Crown correctly described the damage in her closing. The difference in the nature of the damage the Crown prosecutor opened on compared with the evidence given is of little consequence in these circumstances. Nor was any complaint made about that at the time.

229. Although the applicant also placed weight under this ground on the lack of explanation about how the complainant’s cardigan or dress were removed, the complainant’s evidence was in fact that her clothing was removed “aggressively”, “forcefully” and “forcibly” during a struggle. She was never asked in cross-examination to provide better particulars as to how that occurred.

230. As for the complaints about the Crown prosecutor’s “interpretations” of the CCTV footage, I have viewed that footage and am satisfied that it was open to the Crown to describe it in the manner that she did. I would describe the footage as depicting: the applicant with his arm around the complainant as they entered the hotel (consistent with her evidence that she needed assistance walking); the complainant steadying herself and bending over with her hands in front of her mouth in the lift (consistent with her evidence that she was intoxicated and sick); the complainant approaching the lift after the alleged offences with the torchlight on her phone on (consistent with her evidence that she used the torchlight to find her clothes); the complainant calling her boyfriend when she got into the lift (consistent with her evidence that she called him); and the complainant waiting behind the screen-like structure for her boyfriend (consistent with her evidence).

216. What to make of the CCTV evidence was a matter for the jury but on my viewing of it there was nothing in it that ought to have caused the jury to have a doubt about the complainant’s credibility; on the contrary. The CCTV footage was strong evidence in the Crown case.

217. On the topic of the CCTV footage of the complainant waiting behind the screen-like structure for her boyfriend, the applicant sought to tender additional CCTV footage showing the complainant leaving the hotel from a different angle. It was played at the hearing of the appeal. This footage had been served on the applicant eight days prior to the appeal hearing. The court provisionally admitted this evidence and deferred a decision as to its admissibility.

218. This additional footage was said to contradict the complainant’s evidence that when she was waiting for her boyfriend to collect her, she hid behind a screen. This was said to be because the footage shows that the sign was transparent and, thus, she was not really hiding at all. It was also submitted that the footage shows that she may have spoken to a concierge or other person and the defence may have been able to make further inquiries had this been served earlier.

219. I am satisfied that the screen shown in this CCTV footage is consistent with the complainant’s evidence that she waited there because she was obscured from view. It does not advance the applicant’s case under this ground.

220. In relation to the telephone records, the applicant accepted that the complainant’s message to her boyfriend may have been sent over WeChat, in which case it would not show up on telephone records. The complainant called her friend over WeChat after she called her boyfriend so there is a basis to draw such an inference. As for the rest of the Vodafone records, they do not undermine the complainant’s credibility. As the Crown submitted, they could have related to the receipt of messages or other data on the phone. I am not satisfied that the telephone records show that the CCTV footage is inconsistent with the complainant’s evidence. In any event, these inconsistencies were all put before the jury.

221. I have already addressed the applicant’s complaint that there was no expert evidence about the complainant’s level of intoxication under ground 5. Given that intoxication was not left to the jury as a basis for lack of consent it could not provide a reason why the jury ought to have had a doubt as to the applicant’s guilt. Similarly, the complaint as to the lack of expert evidence about the complainant’s vomiting does not assist the applicant. It was never suggested to the complainant that she might have vomited for a reason other than intoxication. There was no need for an analysis of the vomit to have been undertaken before the Crown could rely on it as probative of excessive alcohol consumption.

222. The applicant also relied upon the evidence of the paramedic, Ms Milne, that the complainant scored well on the Glasgow Coma scale, but this was explained by that witness who observed the complainant to be nonetheless displaying signs of intoxication. The paramedic’s personal assessment of the complainant was that she had an “altered conscious state”, which was consistent with the Crown case that ultimately went to the jury.

223. It is to be accepted that Ms Milne’s evidence was somewhat unclear as to whether the complainant said on the night of the incident that the applicant offered to “take her back to her hotel or a hotel” but it was no part of the Crown case that the complainant was staying or living in a hotel. On this issue, the applicant sought to rely on new evidence (the police “Facts Sheet” and paramedic Milne’s witness statement) in support of the submission that the complainant lived in a private residence at the time. This was said to be relevant to whether or not the complainant was living in a hotel on the relevant night.

224. This “new” evidence relied upon by the applicant is on a point so peripheral to the central issues at trial as to not assist. In any event, it was a point made by defence counsel in his closing. It was not a matter which would compel the jury to have a doubt about her credibility either alone or in connection with the other matters raised by the applicant.

225. The above matters were nearly all raised at trial. The jury had the opportunity to consider them.

226. As for the defence witnesses, there are obvious explanations as to why their evidence might not have been accepted by the jury. The evidence of Mr Cao was that he was able to recount with precision exactly how much the complainant had to drink but could not give any evidence as to what his friend Candice had to drink. There was a photo tendered at trial to suggest that Candice was intoxicated and fell asleep on a couch during the party. This does seem consistent with the complainant’s account that the women were being encouraged to drink at the dinner party.

227. Mr Xia’s evidence was that he did not know the applicant and only met him in September 2017 by coincidence. His evidence was that he recognised the applicant because he was active in the WeChat group. They started chatting and Mr Xia said to the applicant “so you are the unlucky guy. You were charged for… rape.” The jury may well have though this was an unbelievable coincidence given his previous offer of money to the complainant to change her evidence.

228. In undertaking my assessment of all of the evidence at trial, as required under this ground, I have made allowance for the advantage enjoyed by the jury in “seeing and hearing the evidence”: M v The Queen at 494-495. It is to be accepted that the scope of the advantage that the tribunal of fact, in this case a jury, has over an intermediate appellate court “by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial”: Dansie v The Queen at [17]. In this case, given that the central issues at trial turned on questions of credit, the advantage enjoyed by the jury in “seeing and hearing” the complainant give evidence was relatively wide: SC v R [2023] NSWCCA 60 at [14].

229. Having considered all of the evidence at trial, I am not satisfied that there is a “significant possibility that an innocent person has been convicted”: M v The Queen at 494-495. In fact, I consider the Crown case to have been a relatively strong one.

230. I would not uphold ground 7.

ORDERS

246. I would propose the following orders:

1. Grant an extension of time.

2. Appeal dismissed.

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Amendments

24 April 2023 - Paragraph [196] has been replaced in its entirety.

15 May 2023 - Headnote - "Judge Noman SC" instead of "Judge Norman SC"

Decision last updated: 15 May 2023