Defence counsel's submissions
82The judge then commenced his summary of Mr Brady's closing address. He repeated what he had said at the outset, that he was not attempting to put all counsels' arguments but was endeavouring to summarise them and that if he did not deal with some matters, this did not mean they were unimportant. His Honour added:
Now to some extent it may seem from the length of time that it takes me to - hopefully - deal with Mr Brady's address in a shorter manner than it took to get through that of the Crown, that that may appear to you as though I have put more emphasis on the Crown case, but I think you will remember that the Crown, in going through the closing address, took the better part of a day and a half, and Mr Brady's address was about half a day or a bit less.
Accordingly, it would naturally follow that you would not expect me to take so long in relation to dealing Mr Brady's address as with the Crown's address. But the important thing is that you have heard what counsel has said, and if their submissions are helpful to you - whether I refer to them or not - you should take them on board and consider them.
83His Honour added shortly after:
To some extent, some of the arguments that were raised by Mr Brady I have referred to or dealt with in going through the Crown case, and I don't intend to go over those again unless I deem it necessary to do so. Now, Mr Brady commenced talking to you about the highly important single question, and I will move on from that to what he then said to you, which was about the Crown's repetition [of matters in his address which did not make the Crown's argument any more correct.]
84Thus the jury were reminded of the judge's emphatic dismissal of a major contention of the defence at the commencement of the summing up, namely that a doubt as to whether AW was indecently assaulted would lead inevitably to a doubt as to the appellant's guilt on counts 1 and 2.
85As to the argument about repetition, his Honour said that this was of course so and reminded the jury of what he had said in relation to the complaints, namely, simply because something is said to a number of people does not necessarily give what is said more weight than when it was first said. His Honour then mentioned Mr Brady's arguments concerning the scientific evidence and his submission, in effect, that the Crown's scientific evidence would not be accepted "beyond reasonable doubt", adding the qualification "now I might be slightly misstating that". His Honour then pointed out that the Crown had to prove beyond reasonable doubt the elements of the charge and the jury did not have to accept each part of the expert evidence but that it was "something you take into account in weighing up what you make of all the evidence", pointing out that the experts were not present in the appellant's apartment and the jury could simply talk about their experience or knowledge of the drugs in question. He added:
...and you may have some doubts one way or the other - in relation to Dr Perl [and] in particular of Dr Moses - but its not a question of the Crown having to prove what Dr Perl has said is correct beyond reasonable doubt.
86His Honour summarised Mr Brady's submission in respect of the scientific evidence as being that there was not much difference between what the experts said except that Dr Moses said that zolpidem could be used recreationally for Stilnox parties or coming down or by couples whereas Dr Perl was dismissive of the idea of Stilnox parties because everyone would simply go to sleep. His Honour said, in relation to the use of Stilnox as a recreational drug or to come off other drugs, "whether you think those circumstances apply in this matter is a matter for you". His Honour referred to Mr Brady's contrast of the experience of Dr Perl and Dr Moses, and then Dr Perl's agreement that the conduct outlined in the appellant's record of interview was perfectly consistent with Stilnox having been used. His Honour then commented:
Well, of course, there are many things that could be consistent with the use of Stilnox. Neither of the experts can say to you that in terms of what is alleged by [the complainants] that actually happened. They were not there. They can only talk from their expertise about whether something might or might not be consistent with the effects they understand the drug has had. So an entirely different scenario to what is being put here could have been put to either of the experts, and you would have expected that in those circumstances, they would have said, "Yes, well, that's consistent to," particularly if people are saying well, that they have a lack of memory as a result of what occurred. So you need to take that on board in deciding what you make of the submission that Dr Perl was saying, that the version put by the accused in the ERISP was perfectly consistent.
87His Honour then referred to Mr Brady's argument that the accused's DNA was not found in the swabs taken from the complainants and commented:
However you need to - as I said when I was taking through the Crown's address - you need to take into account what it was that the experts said... about what was possible to achieve by way of analysis of DNA and the actual tests that were carried out.
88His Honour then quoted Mr Brady reminding the jury that AW's face and dress were swabbed for DNA because that was the sort of area where it might be expected to be found if someone had done what was alleged against the appellant. His Honour then commented as to this:
Of course all that is alleged in this matter is touching the vaginal area by the accused. It is not alleged in the Crown case that there was anything more than that ... [b]ut it is wrong to say that you would have expected them to have found some DNA on [AW's] face or breasts if in effect the accused had done what had been alleged, because there is no allegation here of him doing anything to her face or breast. The allegation is a hand down the pants, touching the vagina, and you have heard the expert evidence about the possibilities of DNA being recovered in those circumstances. But importantly in relation to the accused's case, you should remember that there is no evidence of DNA which connects him to having carried out any action.
89His Honour then referred to Mr Brady's argument that members of the public might think, from television programs, that DNA can be located any time and anywhere but that the appellant was happy to agree to provide a sample of his DNA immediately he was asked, suggesting that this was the action of an innocent man with nothing to hide.
90The judge then reminded the jury of Mr Brady's denial that the defence had alleged any hallucinations, suggesting it was just an "Aunt Sally". His Honour repeated his explanation (given whilst summing up the Crown address) as to why the Crown had raised this matter and therefore "... [w]hy you might expect that was not an unreasonable proposition for the Crown to take you to in the circumstances of this matter".
91His Honour reminded the jury of Mr Brady's summary of the defence case as a "succinct expression of the central issue in terms of the defence's case":
It's always been our defence. They were completely off their head on alcohol, drugs. Had no idea what happened. Can't remember, woke up in a state not knowing what they had done. Tried to start piecing it together, so exaggerating in their own minds what had occurred and started to believe their own false memory. That's always been what we put.
92His Honour then reminded the jury of Mr Brady's submission concerning the expert evidence, in particular that Stilnox could result in a flawed memory and people might consciously or unconsciously create false memories to replace what was missing, believing that what they had replaced was a genuine recollection of what had actually occurred. He then reminded the jury of Mr Brady's cross-examination of AW and the differences in her description as to how she found herself on the bed with MD and the accused and their relative positions. He quoted some of Mr Brady's cross-examination of MD and reminded the jury that they had a transcript of what counsel had said and that they could read it for themselves. Then he mentioned Mr Brady's submission that this evidence showed that some of what MD said may really have been the result of later conversation with AW and that it had become incorporated in his memory as a memory of his own because of that.
93The judge then took the jury to Mr Brady's submissions concerning good character and mentioned also that several witnesses had referred to the appellant having two mobile phones, commenting:
But of course none of them were with him on the night. So there is actually no evidence in the trial of [the appellant] having two mobile phones on 30 November 2006. There is evidence, as I said before, of him being asked about his mobile phone and providing a single number to the police during the course of the record of interview.
94His Honour referred to Mr Brady's submission contrasting the appellant's good character with the fact that the complainant [AW] had past experience with drugs and had used a sedative some years in the past to come off speed and therefore it was possible she had used zolpidem to come off cocaine on the night in question. His Honour then added:
Well, it is a matter for you, what you make of the evidence about past drug use. You have heard the Crown's submissions that their past drug use was illegal, but at least of a relatively minor sort, and that they were not hopeless junkies or poly-drug users or anything of that nature, and that you know that the fact that she might of used a downer some years in the past to come off ecstasy was hardly going to be information that would support the proposition that on this particular night, having taken cocaine together with [MD], they were then going to take Stilnox in order to somehow come down from it.
95His Honour summarised Mr Brady's argument as being, in this respect, that giving Stilnox and cocaine to the complainants was inconsistent with the evidence of the appellant's character and commented:
...but that their taking cocaine and Stilnox of their own accord would be somewhat consistent with their past experience. As I said, that is a matter for you to weigh up.
96His Honour then referred to Mr Brady's appeal to the jury's common sense and the need to assess the reliability and accuracy of the evidence by seeing whether it made sense or not. Mr Brady had enumerated thirteen of the points in support of this submission to which his Honour then referred.
97Firstly, if you were going to give a person a stupefying drug so that you could indecently assault them you would not do it by taking them to your own premises, giving your name, your company name and address and allow them to take a photo of you. Secondly, that it did not make sense that the appellant would go to the effort of drugging the complainants and then wait three hours before putting his hands down AW's pants. His Honour then referred to Mr Brady's third point, that it was unlikely the appellant would prepare the spiked drink whilst the complainants were watching him from the balcony because "you would not want them to potentially see that you were crushing up something to put into a drink, etc". As to this his Honour commented:
Well, you would need to take into account, of course, the degree of sobriety of [AW] and [MD] when they are there sitting on the balcony and you also need to take into account whether or not you think they would be sitting there trying to look at the view or trying to look at him or whether they would simply look at him from time to time, if they thought that the delay was too long, and so were both looking at the view and at him, and whether he had any expectation that they were going to be interested enough in what he was doing there in order to notice if he was crushing something up. In fact, you do not know whether in terms of this event he had actually to crush something up. All you know is that, if the allegation is correct, that he placed Stilnox into the drink, then what the evidence is about is about him making the drink. Now whether that involved having to first crush the Stilnox is an entirely separate question. Perhaps it he did, perhaps he did not.
98His Honour then reminded the jury of Mr Brady's fourth point that it was unlikely that, AW having woken and found the appellant with his hand down her pants, would go into the bedroom where MD was sleeping and, after eventually managing to wake him up and after telling him what had happened, then leave the room alone. This was inconsistent, Mr Brady argued, with her evidence that she was terrified.
99The fifth point was AW's reminding MD, after the assault, that since it was about 10.00am, the market would be open and he should make a telephone call. Mr Brady submitted it did not make sense that MD would go to the kitchen to ring his stockbroker in circumstances where he had been told that AW had been indecently assaulted. The sixth point made by Mr Brady was that it would be most unlikely, in the circumstances, that AW would have given the appellant her mobile telephone number and to have waited inside the unit for the taxi rather than leaving as soon as possible and waiting for the taxi outside.
100His Honour then commented as to these matters:
But you will also need to take into account the evidence of [AW] and [MD] about the effect of what they say was the effect of the drug which you know was in their systems - Stilnox - the effect of the drug on them at that time, was that something that operated in order to make them do things or let them or allow them to do things in a fashion that you might not necessarily expect if someone was thinking with all their wits about them?
101Mr Brady's seventh point was an argument that it was not necessary for the complainant to have keys to leave the apartment and thus that there was nothing in this issue of significance. His Honour commented:
... [W]ell yes, you might think that. You know there was a conversation... about keys, and obviously the point about the keys is not about being able to use keys to get out. Maybe that you need them to get out, but certainly you would not expect anyone to go off to get cigarettes or perhaps go to examine a car or something of that nature unless they took with them the keys to get back into the unit. And as the Crown said to you, there is support for a conversation about keys, because it is heard by Mahoney and Gilcrest as part of the telephone conversation.
102His Honour then mentioned Mr Brady's eighth point which was that there was some delay between the assault and AW breaking down and crying but, more significantly, it did not seem to make sense that someone in her condition would make a call to check their voice messages some five minutes later. Point nine was the argument, in connection with the last thing MD said to the appellant, namely "[w]here's the trust? What happened here in the last three hours?". Mr Brady added that if they were deliberately drugged by the appellant with the intention of indecently assaulting AW, what MD claimed to have said would make the appellant aware of the potential that they would report what had happened to them and yet he did not make any effort to dispose of the Stilnox. His Honour did not comment upon either of these two points.
103Mr Brady's tenth point had already been referred to by the judge in the course of his summary of the Crown's submissions. It related to comments made by the appellant to police regarding [MD] not wearing clothes and Mr Brady's suggestion "seriously, do you think ... the police are not going to have told [the appellant] one of the allegations is that [MD] woke up in his underpants?". The judge mentioned that Mr Brady referred the jury to the fact that it had been put to the appellant in the record of interview. His Honour commented:
... [B]ut of course, when they put it to them in the record of interview, it was after the point at which he had in fact raised the question of clothes himself, and as I said to you earlier, in trying to summarise the Crown case, there is no evidence of any police officer telling him before he raised it in the interview, anything specifically about the allegation that [MD] awoke with his clothes either off, or partly off.
104The judge then mentioned Mr Brady's eleventh point which dealt with the fact that both MD and AW had said the same thing to Dr Brennan about how much alcohol they had consumed and also that they had two or three lines of cocaine but when they made their statement to the police later, they varied the quantity of cocaine to "three or four lines", quoting Mr Brady's remark, "They say they didn't talk about it - well." His Honour did not comment on this argument.
105The twelfth point was that the jury could think that it was "a bit bizarre" that if the appellant intended to put Stilnox in the complainants' drinks, that he would also give them some cocaine which might, to some extent, counteract the effect of the Stilnox and that this did not make sense. His Honour commented:
You have heard the evidence, which has been uncontradicted in effect from [MD], about the - and I think there was some support from Dr Perl about the extent to which cocaine, that is, how long it takes to take effect and how long it is going to provide an effect for, and that evidence was not that it was going to effect them for hours, but for a relatively short period of time. Certainly, comparatively with Stilnox, the cocaine would not have had a lengthy effect.
106His Honour then referred to what he said was Mr Brady's "last point", that AW said she had never looked in the fridge, but in her statement to the police she talked about looking in the fridge and seeing the drawer slide out with all the alcohol, to which he asked rhetorically, if AW had not looked in the fridge how would she know the drawer slid out with alcohol? As to this argument his Honour commented:
Well you may recall her evidence that she did not look in the fridge - you might think she was talking in the sense of opening the door to look in the fridge, but she said that she looked at the fridge and it had one of those glass panels in the door through which you could see the drinks compartment. So when she was talking about that, you might think that that is what she was talking about. But that is a matter for you, have a look at the evidence, see what you make of it.
Mr Brady was suggesting that she said that she saw the drawer slide out because she did go in the fridge with [MD], because they were helping themselves to drink which is what the accused said in his interview. As I say, have a look at her evidence in respect of that. She did not agree that she ever went into the fridge, or that she looked in the fridge beyond looking in, and realising that it had a glass panel for the drinks compartment.
107His Honour then took the jury to Mr Brady's submissions about the police search to the effect that it would be expected that the police would have been interested in finding the cocktail shaker and "Officer Hunter said that he had [it] in fact in mind" but no cocktail shaker or anything of that nature was taken by police although they seized a number of other items. As to this argument his Honour commented:
Mr Brady referred to Mr Hunter as looking for a cocktail shaker, but his evidence was not in fact that he was looking for a cocktail shaker. His evidence was that he was aware from the briefing of the relevance of a cocktail shaker, and he said that if he had seen one he would have noticed it. So it is not quite the same, but you might think, in the circumstances, it was not any gross misrepresentation for Mr Brady to say that Mr Hunter was looking for one.
108His Honour reminded the jury, without comment, of Mr Brady's argument that the police had not investigated the matter well because although a glass was found it was never seized.
109The judge then took the jury to Mr Brady's submission concerning the SMS message from AW at 7.18am and the Crown's suggestion that it was a cry for help, commenting if it were so would it have been likely to have been signed "xx or kiss kiss". His Honour then mentioned Mr Brady's argument that a photograph showed a glass in MD's hand and AW's early response in cross-examination that it looked as though there was a brown liquid in the glass, AW not saying that it must be something else but responding that she did not know if MD had other drinks. His Honour commented:
You might think that is a perfectly reasonable suggestion in the circumstances of this matter, where she has [a] failed memory in relation to some parts of the evening, where she says she has difficulty putting some things into chronological order, that it was reasonable for her to concede that he may have had other drinks that she was not aware of, or at least could not remember.
But his Honour qualified this comment by adding:
What Mr Brady was saying in respect of that was essentially that it was another one of those points of unreliability, in the sense that the evidence-in-chief was that there was just the one drink, yet when tested by looking at the photograph - whether it was a drink or not in the photograph, she was then prepared to concede that she could not actually say that he had not had other drinks.
110His Honour then dealt with Mr Brady's argument about whether AW actually knew her vagina was being stroked or not. Mr Brady had taken the jury to the evidence of Ms Gilchrist and set out part of the transcript which contrasted AW's evidence about the appellant stroking her vagina as being something she remembered having happened rather than something she feared might have happened with what AW told Ms Gilchrist that she "may have been assaulted", she had feared "something had occurred". Mr Brady reminded the jury of Dr Perl's evidence about people trying to work out what had happened after the consumption of quantities of drugs or alcohol and the possibility of creating false memories in support of the submission that AW had no actual memory of what had happened in the apartment after a certain hour even though she might genuinely have believed that she was indecently touched.
111In relation to this argument his Honour commented that the jury needed to put what was said by Mr Brady within the context of Ms Gilchrist's cross-examination. His Honour then proceeded to read her evidence "... the manner in which it was in part paraphrased by Mr Brady just so that you have that part that he has put to you in context as to whether they were actual words used or not". The passage brought to the jury's attention was:
Q. What did she say to you in that phone call?
A. She had started to elaborate on that she believed she may have been assaulted and may have been drugged, to which point I got quite upset. I guess I'd never received a phone call like that before and [AW] just refrained from telling me any more because I got a fair bit emotional, and then a work colleague took me home.
Q. What words did [AW] use when telling you that she might have been drugged?
A. To be honest I can only recall the emotion of the moment, I can't actually recall any of the conversation for example.
Q. What words did she use when she said that she may have been assaulted?
A. Yeah I actually don't know the specific but yeah but yeah she had feared something had occurred.
His Honour concluded "so that is the evidence that was given by Ms Gilchrist on that topic. As I said you have the transcript, you can take that into account when considering the submission made by Mr Brady".
112(We note that it appears that Mr Brady had fairly set out the purport of Ms Gilchrist's evidence and his Honour's comment which was to suggest to the jury that he had not done so was inappropriate.)
113His Honour then reminded the jury of Mr Brady's submissions about MD's evidence in support of the submission that he and AW had no idea as to what had happened in the appellant's apartment because they were so intoxicated and were trying to work out what occurred retrospectively. Mr Brady had taken the jury, and his Honour repeated, to a number of apparent inconsistencies and problems with MD's memory, in particular to the time at which the cocaine was ingested which he had said was 4.00am, which was before the complainants arrived at the appellant's unit. Mr Brady's argument about the times and, in particular, when cocaine was ingested was referred to extensively by his Honour without comment.
114The judge also reminded the jury of Mr Brady's submission that the character evidence called by the appellant was that he had nothing to do with cocaine, the witnesses did not believe that he would be involved with the drug and had never seen him involved with it or saying anything about using it. His Honour concluded this part of the summing up with the following:
Now, as I said to you before, I have endeavoured to cover most of the submissions that have been put in a slightly shorter form. In doing so, it has now taken me almost as long to do the defence case as the Crown case, which I did not anticipate. Please, in respect of anything that I have said, if you feel that I have over-emphasised one case or the other, please ignore it. I have simply been trying to put the corresponding arguments to at least remind you of them, particularly since you heard them last week. If what I have said is helpful to you, if it agrees with what the Crown or the defence have said to you, agrees with what you think, then by all means you utilise it in coming to your verdicts.
However, if anything that any of us has said about what you might make of the evidence, or in fact what the evidence is, you do not agree with that, then you have to rely on your own view. Anything that we say to you, except for the directions of law that I have given to you, anything else that we have said about - that is myself, the Crown or Mr Brady - have said about the particular circumstances or the evidence and what you might make of it, is purely designed to assist you in understanding how the parties put their cases and assist you in coming to your verdicts.
115His Honour then suggested to the jury as to where they might commence their deliberations, by saying that "a reasonable starting point in relation to any of these charges is to look at the first and common element to the two charges", continuing (by way of restating the Crown case):
Now, it is the same element that is in each of these first two counts. And you understand that the Crown's case is that they had no Stilnox knowingly; neither [MD] nor [AW] took any Stilnox, and as far as they are concerned, the only time in which it could have got into their systems was when they were given the strong lemon flavoured drink at [the appellant's] premises.
116His Honour suggested the jury would well understand that if they did not accept beyond reasonable doubt that the appellant had caused the complainants to take the Stilnox then it would be unnecessary to consider the second element, namely that the drug was administered with the intention of indecently assaulting AW. His Honour then added:
But remember what I said, that it is the intent at the time of the administration, or causing to be taken the stupefying drug, that is relevant.
There need in fact be no indecent assault thereafter occurring, but in the circumstances of this matter, what the Crown relies on is not just the administration of the stupefying drug, but the conduct thereafter. He relies on not simply the allegation that the accused put his hand down [AW's] pants and touched her on the vagina, it also relies on the other conduct of which you heard. That conduct includes what you have heard from both [MD] and [AW] about the three of them somehow ending up on the bed in their somewhat confused mental state, but the accused then being on the bed with them on the other side of [AW] and touching her body. I am not suggesting that that is an indecent assault. I am just suggesting that it is something that you can take into account in terms of whether you find the intention was to commit an indecent assault.
117His Honour then dealt with the indecent assault alleged by the Crown, namely that the appellant "put his hand down the pants of [AW], and that he touched her on the vagina."
118His Honour then said:
You might think, if you could not accept [AW] beyond reasonable doubt in respect of [the appellant] having done that, that her reliability in respect of that particular piece of evidence might reflect on what you make of her evidence that is relevant to the other two charges.
This direction was apparently given in response to the application by Mr Brady for a Markuleski direction.