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Legislation Cited: Crimes Act 1900 (NSW), s 61I
Criminal Procedure Act 1986 (NSW), s 294CB
Evidence Act 1995 (NSW), ss 90, 85(2), 137
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Surveillance Devices Act 2007 (NSW), s 19

Cases Cited: Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21
Carr v R [2026] NSWCCA 5
CC v The Queen [2010] NSWCCA 337
Choudhary v Director of Public Prosecutions [2013] VSCA 325
Cotic v The Queen [2000] WASCA 414; (2000) 118 A Crim R 393
Crane v R [2025] NSWCCA 93
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
de Virgilio v The King [2026] SASCA 16
Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
Fantakis v R [2023] NSWCCA 3
Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26
Haines v R [2018] NSWCCA 269
Hewitt v R [2021] NSWCCA 227
House v The King (1936) 55 CLR 499; [1936] HCA 40
Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Magill v The Queen (2013) 42 VR 616; [2013] VSCA 259
MDP v The King [2025] HCA 24; (2025) 99 ALJR 969
Medich v R [2021] NSWCCA 36
Mehrdad v The King [2026] VSCA 52
MIH v R [2007] NSWCCA 199
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Moore (a pseudonym) v The King (2024) 282 CLR 460; [2024] HCA 30
Munshizada v R [2025] NSWCCA 172
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Pavitt v R [2007] NSWCCA 88; (2007) 169 A Crim R 452
R v Bauer (2018) 266 CLR 56; [2018] HCA 40
R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238
R v Cavalli [2010] QCA 343; (2010) 206 A Crim R 306
R v Cook [2004] NSWCCA 52
R v D’Orta-Ekenaike [1998] 2 VR 140
R v DRF [2015] NSWCCA 181; (2015) 263 A Crim R 573
R v Green (2002) 4 VR 471; [2002] VSCA 34
R v Koeleman (2000) 2 VR 20; [2000] VSCA 141
R v Lee (1950) 82 CLR 133
R v Ljubicic [2017] NSWCCA 283
R v Nelson [2004] NSWCCA 231; (2004) 41 MVR 10
R v Perera [1986] 1 Qd R 211
R v Robertson [1998] 4 VR 30
R v Russo (No 2) [2006] VSCA 297
R v Ryan [2013] NSWCCA 316
R v Swaffield (1998) 192 CLR 159; [1998] HCA 1
R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
R v ZT (2025) 281 CLR 137; [2025] HCA 9
Radburn (a pseudonym) v R [2025] NSWCCA 125
Riley v R [2011] NSWCCA 238
Small v Western Australia [2023] WASCA 179
Smith (a pseudonym) v R [2025] NSWCCA 145
Sulaeman v R [2013] NSWCCA 283
Walford v McKinney [1997] 2 VR 353
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Category: Principal judgment

Parties: Andre Acopian (Applicant)
Rex (Respondent)

Representation: Counsel:
A Francis / H Skinner (Applicant)
A Brown (Respondent)
Solicitors:
Bannisters Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/00348352

Publication restriction: Section 578A of the Crimes Act 1900 (NSW) prohibits the publication of any matter which is likely to lead to the identification of the complainant.

HEADNOTE

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

On 13 March 2025 the applicant was convicted by a jury on two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). Both offences occurred on 31 August 2022 and involved the same complainant. The applicant and the complainant first messaged each other on an app called PURE Hookup in February or early March 2022. The applicant and complainant had consensual sexual intercourse on three occasions between March 2022 and 10 August 2022. The messaging and sexual interactions between the applicant and the complainant included what the complainant described as “consensual non-consensual sex”. The applicant and complainant established a traffic light system for use during sex: red meant “stop now”; orange mean “slow down”; and green meant “go more intense”. The complainant’s account was that, shortly after arriving at the applicant’s investment unit on 31 August 2022, where the two had arranged to meet, she told the applicant that she thought she should go. She said that the applicant then proceeded to penetrate her digitally and to have penile vaginal intercourse without consent, after she told him “red” many times.

In August and September 2023 the complainant attended the Bankstown Police Station and recorded two calls with the applicant (pretext calls), pursuant to a warrant. During the second call, the complainant’s tone suggested she was aroused and what she said might suggest she was masturbating. The applicant also made reference to being sexually aroused during the call. The applicant made a number of statements during this call which were characterised by the Crown as two admissions which corroborated the complainant’s account of what occurred on 31 August 2022. At a pre-trial hearing the applicant sought to have the second pretext call excluded from evidence, under ss 90 and 137 of the Evidence Act 1995 (NSW). The trial judge found that the second pretext call contained admissions but it would not be unfair to the applicant to use the evidence.

The applicant sought leave to appeal from his conviction on both counts. The grounds of appeal were as follows:

(i) the trial judge made a material error of law in permitting the Crown to adduce the entirety of the second pretext call and the admission of the evidence gave rise to a miscarriage of justice (ground 1);

(ii) the trial judge made a material error of law by failing to direct the jury as to how they were not permitted to use evidence of ‘rape fantasy’ and the absence of a direction of this kind gave rise to a miscarriage of justice (ground 2);

(iii) the trial judge made a material error of law in his directions concerning the drawing of adverse inferences from the applicant’s admissions and the absence of a direction of this kind gave rise to a miscarriage of justice (ground 3); and

(iv) the verdicts are unreasonable (ground 4).

The Court held (Stern JA, Rigg and Emmett JJ)****, refusing leave on grounds 2 and 3 and granting leave on grounds 1 and 4 and dismissing the appeal**:**

As to ground 1:

(1) Where the issue under s 90 of the Evidence Act is whether it would be unfair to use evidence of an admission, then the correctness standard of appellate review should be applied: [15]-[17] (Stern JA); [136] (Rigg J); [158] (Emmett J).

Fantakis v R [2023] NSWCCA 3; Moore (a pseudonym) v The King (2024) 282 CLR 460; [2024] HCA 30, considered.

(2) The trial judge did not err in not excluding the admissions under s 90 of the Evidence Act, since:

(i) it was not established that the evidence was not reliable. Rather, there was a real question for the jury to evaluate as to whether the admission corroborates the complainant’s account or was intended to be no more than rape fantasy: [83] (Stern JA); [136] (Rigg J); [158] (Emmett J);

Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183, distinguished.

(ii) the evidentiary context would enable the jury fairly to evaluate the admission: [84] (Stern JA); [136] (Rigg J); [158] (Emmett J);

(iii) this was evidence that members of the jury were able reliably to evaluate and the concept of consensual non-consensual sexual activities was one which a juror could reasonably be expected to understand and evaluate without prejudice: [85] (Stern JA); [136] (Rigg J); [158] (Emmett J);

(iv) the use of the evidence was not unfair because it meant the applicant bore a persuasive burden of explaining its context. The applicant has no right to silence in the sense that evidence which demands an explanation cannot be admitted: [86] (Stern JA); [136] (Rigg J); [158] (Emmett J); and

R v Cook [2004] NSWCCA 52, distinguished.

(v) without determining the relevance of public policy to the question of whether the use of an admission at trial is unfair, the use of the admission was not unfair because it was improper or unacceptable as a matter of public policy for the admissions to have been exacted in the manner which occurred: [87]-[88] (Stern JA); [136] (Rigg J); [158] (Emmett J).

(3) The trial judge did not err in not excluding the admission under s 137 of the Evidence Act. If the jury found that the applicant was admitting that he kept having sexual intercourse after the complainant said “red” then that was evidence which strongly corroborated the complainant’s account. It was not established that there was any significant prejudice to the applicant in the evidence being admitted: [89] (Stern JA); [136] (Rigg J); [158] (Emmett J).

Em v The Queen (2007) 232 CLR 67; [2007] HCA 46; R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238, applied.

As to g**round 2:

(4) The trial judge did not make an error of law in not giving a direction that the evidence could not be relied upon by the jury in support of tendency reasoning. There was no realistic possibility of the jury using the second pretext call in this way: [90]-[99] (Stern JA); [136] (Rigg J); [158] (Emmett J).

As to g**round 3:

(5) The trial judge did not err in his directions concerning the drawing of adverse inferences from the applicant’s admissions, as:

(i) the trial judge’s directions, read as a whole, made it plain to the jury that they should not rely upon the admissions as evidence against the applicant if they considered that there was an alternative explanation for what he said: [101]-[105] (Stern JA); [136] (Rigg J); [158] (Emmett J);

Crane v R [2025] NSWCCA 93, distinguished.

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, cited.

(ii) the trial judge’s direction did not deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the offence beyond reasonable doubt and was not erroneous: [106]-[115] (Stern JA); [136] (Rigg J); [158] (Emmett J);

Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21; de Virgilio v The King [2026] SASCA 16, applied.

(iii) the jury was adequately directed as to how they should deal with the competing versions of events, including as to the pretext calls: [117] (Stern JA); [136] (Rigg J); [158] (Emmett J); and

(iv) where an admission, including a lie as consciousness of guilt, is relied upon as corroborating other evidence, rather than as itself providing a basis for conviction, it does not have to be proved beyond reasonable doubt. In any event, the trial judge’s directions met the requirements that the jury must be directed that there may be other reasons for an accused having told the lie and that if they accept an alternative reason is the explanations for the lie, they cannot regard it as an admission: [118]-[121] (Stern JA); [136] (Rigg J); [158] (Emmett J).

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; CC v The Queen [2010] NSWCCA 337, distinguished.

As to g**round 4:

(6) There is no reasonable doubt as to the applicant’s guilt having regard to the quality and sufficiency of the evidence as a whole. Any doubt is resolved by the advantage the jury had over this Court in assessing the evidence as a whole, having heard and seen both the complainant and the applicant give evidence: [126]-[133] (Stern JA); [136] (Rigg J); [158] (Emmett J).

M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; R v ZT (2025) 281 CLR 137; [2025] HCA 9, applied.

(7) Further observations by Rigg J (Emmett J agreeing at [158]) regarding: additional aspects of evidence supporting the Crown case: [137]-[142]; the adequacy of contextual evidence for the jury to consider the impugned admissions: [144]; the necessity of evidence of the sexual history of the applicant and complainant for reasons additional to the impugned pretext call: [145]-[147]; and there not being a vacuum regarding the complainant’s reciprocal sexual interest: [148]-[151].

(8) Although the extent of the invasion of privacy and the particular manner of deception raised some concerns, these do not warrant exclusion of the evidence pursuant to s 90 of the Evidence Act. In the absence of prejudice at trial in the other respects argued for the applicant the degree of concern is not such as to require resolution of the extent to which public policy considerations support exclusion pursuant to s 90: [152]-[154] (Rigg J); [158] (Emmett J).

JUDGMENT

1. S****TERN JA: On 13 March 2025 the applicant, Andre Acopian, was convicted by a jury on two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The case was put to the jury on the basis of actual knowledge of an absence of consent. Both offences occurred on 31 August 2022 at an investment unit in Bankstown owned by the applicant. Both offences involved the same complainant, who was aged 19 at the time. The applicant seeks leave to appeal against his convictions. In large measure, his contentions focus upon a lawfully recorded telephone call between the applicant and the complainant which took place on 11 September 2023 (for reasons that will become clear, I will refer to this as the second pretext call). The audio recording of the second pretext call was admitted into evidence by the trial judge, over objection by the applicant, following a hearing on the voir dire. The applicant contends that the trial judge erred in admitting the second pretext call and in the directions he gave as to how the jury could use this evidence, occasioning a miscarriage of justice. He also contends that the jury’s verdicts are unreasonable.

2. On 11 July 2025 the applicant was sentenced to 5 years imprisonment with a non-parole period of 3 years. The sentence commenced on 13 March 2025. The applicant does not seek to appeal against his sentence.

3. Leave to appeal should be granted as regards grounds 1 and 4 of the applicant’s proposed notice of appeal but the appeal should be dismissed. For the reasons set out below, leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) should be refused as regards grounds 2 and 3.

Grounds of appeal

4. The applicant advances four grounds of appeal:

5. the trial judge made a material error of law in permitting the Crown to adduce the entirety of the second pretext call and the admission of the evidence gave rise to a miscarriage of justice (ground 1);

6. the trial judge made a material error of law by failing to direct the jury as to how they were not permitted to use evidence of ‘rape fantasy’ and the absence of a direction of this kind gave rise to a miscarriage of justice (ground 2);

7. the trial judge made a material error in law in his directions concerning the drawing of adverse inferences from the applicant’s admissions and the absence of a direction of this kind gave rise to a miscarriage of justice (ground 3); and

8. the verdicts are unreasonable (ground 4).

9. As to ground 1, the applicant contends that the trial judge erred in not excluding the second pretext call, to the extent that it constituted one or more admissions, under s 90 of the Evidence Act 1995 (NSW). Section 90 provides:

90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

6. Admission is defined in the Dictionary to the Evidence Act:

admission means a previous representation that is—

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b) adverse to the person’s interest in the outcome of the proceeding.

7. The applicant also contends that the admissions, and the second pretext call as a whole, should have been excluded under s 137 of the Evidence Act.

8. Both parties submit, and I accept, that the question of error of law in ground 1 turns on the evidence and submissions before the trial judge when his Honour determined that the second pretext call should be admitted. That is consistent with the approach taken by Gleeson CJ and Heydon J in Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [73].

9. The particular complaint the applicant makes in ground 2 is that no direction was given to the jury that they should not use the applicant’s account, during the second pretext call, of a sexual encounter with the complainant on 10 August 2022 to reason that the applicant had a tendency to sexually interfere with the complainant without caring whether or not she was consenting, which tendency made it more likely that he was guilty of the offences alleged to have occurred on 31 August 2022. The applicant contends that it was an error of law for the trial judge not to have given such a direction notwithstanding the lack of any suggestion at trial that the second pretext call could be relied upon to find such a tendency and that the applicant’s counsel at trial did not seek such a direction.

10. The errors alleged by the applicant in grounds 1 to 3 were not contended to amount to a failure to observe the requirements of the criminal process in a fundamental respect: see eg Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [46]. Thus, consistently with MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 at [3] (Gageler CJ), [33] (Gordon and Steward JJ), [44], [46] (Edelman J) and [106]-[107] (Gleeson, Jagot and Beech-Jones JJ) and Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 at [10], if any of the errors alleged by the applicant are upheld, it is necessary to consider whether such error could realistically have affected the reasoning of the jury to their verdict.

11. The appellant concedes he did not seek the directions which, in grounds 2 and 3, he says were required. That gives rise to two questions. First, can the failure to give such directions be characterised as a wrong decision on a question of law. Second, should leave be granted under r 4.15.

12. As to the first of these questions, a wrong decision on a point of law may arise where no direction was sought but, having regard to the duties and obligations of a trial judge, a direction was warranted and the failure to give it had legal effect in the trial: MDP at [100]-[103] (Gleeson, Jagot and Beech-Jones JJ). Whether that is so will turn on the significance of the evidence and “contextual matters, including the issues at the trial, the evidence, closing addresses by counsel and the whole of the trial judge’s summing-up”: Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62 at [43] (Gordon, Steward and Gleeson JJ). As recently explained in Carr v R [2026] NSWCCA 5 at [118] (N Adams CJ at CL, Ball JA and Sweeney J agreeing):

The ultimate question is whether the trial judge’s direction to the jury, taken as a whole, deflected the jury from its fundamental task of deciding whether the prosecution proved the elements of the offence beyond reasonable doubt: Huxley at [41]; Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 at [46].

13. As to r 4.15, the relevant principles were recently summarised in Smith (a pseudonym) v R [2025] NSWCCA 145 at [96]-[103]. Relevantly, leave under r 4.15 will be granted where there has been a miscarriage of justice such that the applicant has lost a real chance of acquittal or, generally, where a necessary element of a fair trial was overlooked: Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26 at [82]-[90]. Of particular significance in the present case is the recent statement of Leeming JA in Radburn (a pseudonym) v R [2025] NSWCCA 125 at [107]:

A powerful reason not to grant leave under r 4.15 is that there was a forensic purpose for not raising the point at trial: see the authorities reviewed in R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 159 at [32]-[35]. At least in cases where that forensic purpose was rational, to my mind the deliberate choice by an accused person not to seek a direction so as to obtain a benefit at trial will ordinarily prove fatal to the grant of leave. (I can contemplate cases of gross negligence where the decision might be deliberate but misguided and where applicants seeking leave to challenge their convictions ought not to be precluded by the incompetence of their former lawyers, but that is far removed from the present case.)

14. As Gleeson CJ emphasised in Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9]-[10], the cardinal principle is that parties are bound by the conduct of their counsel at trial and that the fairness of the trial must be judged in that light. That is so irrespective of the fact that there may be cases where, as recognised by Bathurst CJ in Medich v R [2021] NSWCCA 36 at [133], the risk of a jury using evidence improperly is such that a judge may err in not giving a direction irrespective of the forensic approach taken by trial counsel.

Standard of appellate review

15. There has been no authoritative consideration of whether, in light of the analysis in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 and Moore (a pseudonym) v The King (2024) 282 CLR 460; [2024] HCA 30, the standard of appellate review to be applied in respect of a decision not to exclude evidence under s 90 of the Evidence Act is the correctness standard or whether the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 apply. As was explained in Moore at [14]-[15] by reference to SZVFW at [49], the correctness standard of appellate review must be applied where the legal criterion to be applied “demands a unique outcome”.

16. In Em v The Queen at [198] Kirby J held that the correctness standard of review applied to a determination of unfairness under s 90; at [55] Gleeson CJ and Heydon J found it was unnecessary to resolve this issue. In Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183 at [38], Beech-Jones CJ at CL observed that “it may be that it is the correctness standard at least so far as s 90 requires a determination that it would be unfair to use the evidence” but found it was unnecessary to decide that issue. In Fantakis v R [2023] NSWCCA 3 at [464] Ward ACJ noted the tension between the decision in MIH v R [2007] NSWCCA 199 in which, at [54], Campbell JA (Hidden J and Smart AJ agreeing) held that a decision under s 90 of the Evidence Act attracted the House v The King standard of appellate review (applied in Sulaeman v R [2013] NSWCCA 283 at [96]), and the decision of the High Court in R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61] that the correctness standard of appellate review applies as regards a decision that tendency evidence had significant probative value.

17. Given the nature of the legal criterion, where, as in this case, the issue under s 90 of the Evidence Act is whether it would be unfair to use evidence of an admission, then the correctness standard of appellate review should be applied. The question demands a unique outcome. It is relevantly analogous to a determination as to the extent of unfair prejudice for the purposes of s 137, which was held in Moore at [18] to attract the correctness standard of appellate review. It is unnecessary to consider whether there might be cases where a trial judge found that it would be unfair to a defendant to use the evidence but nonetheless exercised the discretion in the chapeau to s 90 and declined to exclude the evidence: see Em v The Queen at [181]-[182] (Kirby J). It is difficult to conceive of any circumstance in which that might occur, but if it did, it may well be that the discretionary element of that decision would attract the House v The King standard of appellate review.

18. I would add, however, that the outcome of this appeal does not turn upon which standard of appellate review is to be applied. The decision of the trial judge was both correct and not vitiated in any of the ways identified in House v The King.

19. The question whether a failure to give a direction sought by an accused at trial was a wrong decision on a question of law attracts the correctness standard of appellate review: MDP at [12], [31] (Gordon and Steward JJ), [102]-[103], [136], [142] (Gleeson, Jagot and Beech-Jones JJ). The position is logically the same irrespective of whether the material direction was sought at trial. However, again, this appeal does not turn on the standard of appellate review applied.

Events prior to 31 August 2022

20. The applicant and the complainant first messaged each other on an app called PURE Hookup in February or early March 2022. The complainant explained in her first witness statement that the app is “for non-vanilla sex” and messages sent through the app are automatically deleted after 24 hours. None of the messages exchanged between the applicant and the complainant on that app were thus in evidence. The applicant’s evidence at trial was that the complainant’s description on the PURE Hookup app was “R fantasy” and, according to the applicant, the complainant said this meant “rape fantasy”. The applicant and complainant messaged first on that app, then by text and WhatsApp.

21. The applicant and the complainant met in person for the first time in March 2022 when they had consensual oral sexual intercourse in the applicant’s car. After this they met, and had consensual sexual intercourse, on two further occasions, including at the applicant’s home on 10 August 2022. The messaging and sexual interactions between the applicant and the complainant included what the complainant described in her evidence on the voir dire and at trial as “consensual non-consensual sex”, sometimes referred to as “rape fantasy” or “various scenarios about rape”. On the complainant’s evidence in her first statement, this included the applicant referring to “raping” the complainant and them “going with the flow” during sexual intercourse, subject to use of a safe word. The complainant also said that “generally” they had “rough” intercourse and that their messages to each other would contain a lot of dirty talk. The applicant’s evidence at trial was that they had a lot of phone sex.

22. The complainant also explained in her third statement that, as the applicant was married and paranoid about someone finding out he was cheating on his wife, all messages between the applicant and the complainant prior to 10 August 2022 were deleted. Those messages that were in evidence at the voir dire and at trial included examples of the rape fantasy described by the complainant. For example, on 25 August 2022 the applicant messaged the complainant suggesting a threesome, adding:

He’s into same as u.:

He wants to be raped by me while I rape u..

Double rape.. and I want force him to rape his little sister (u ) ..

Maybe soemtbint we can think about ?

23. It was common ground that, before they met in person for the first time, the complainant and the applicant established what they called the traffic light system for use during sex. The complainant said that red meant “stop now”, orange meant “slow down” and green meant “go more intense”. The complainant said that they had used this system prior to 31 August 2022. At trial the applicant’s evidence was that, on 10 August 2022, the complainant had used the word “red” and he had stopped but the complainant then said to just “go a little bit less” and they “continued on”.

31 August 2022

24. The applicant’s messages in the lead up to seeing the complainant on 31 August 2022 suggested that he anticipated there would be consensual non-consensual sexual intercourse on that occasion. He wrote “Bought rope”, “I want to punish u so bad today like a little slut”, “Honestly want to punish u hard today I’ve had a bad day”, “How about I’m the realestate agent and I get u to come inspect but as u get in I grab u and r a ape [sic] you by surprise…” and “Ur a young girl who’s mum told I to do [sic] look at a unit and I said I’d take care of you.. as im a friend do [sic] your dads”. The complainant’s messages suggested that she did not want rough sex. She wrote, “just don’t be so rough with me”, and when the applicant responded “I’ll be as rough as I want” she wrote “ah nah, I’m not in the mood for really really rough. Teddy bear, nipple clamps and vibrator be good”. After the applicant wrote, “So you don’t want it rough”, the complainant replied “not very rough if that’s makes sense? Like last time was good”.

25. The complainant’s account was that, when she arrived at the unit as arranged on 31 August 2022, there was no bed and just what felt like a yoga mat with a bed sheet and a pillow on the floor and the only thing at the unit was cleaning supplies. She told the applicant that she did not think this was going to be comfortable and that she thought she should go. She said that the applicant started to get angry and stood closer to her, standing about 5 centimetres from her. He continued to say “come on just for now. Don’t be like this” and she was scared and kept saying “Red red stop, I’m serious I don’t want this”. She said that he pinned her to the wall and, when she pushed his chest and tried to leave, he grabbed her around the waist and pinned her to the wall again. She kept saying, “I’m serious, red”. She tried to push him but could not get him off. She then stopped fighting and just went along with it as she was unable to escape and thought he would get angrier and hurt her further. He then moved her to the yoga mat where he proceeded to penetrate her digitally and to have penile vaginal intercourse. She said he was very rough and forceful during sex and she felt uncomfortable. She started crying because it hurt and she was powerless. She felt like she had to let him do what he wanted or something bad would happen to her. He did not wear a condom and ejaculated inside her. The complainant then got up, there was some limited conversation, and she left after the applicant transferred her money for an uber. The entire incident lasted 40 minutes.

26. The account set out above was given by the complainant in her first witness statement. In a third statement, given after the pretext calls described below, the complainant added that she said stop during the incident on 31 August 2022 and that the applicant slapped her across the face during the incident. The accounts given by the applicant in the ERISP, and by the applicant and complainant at trial, are set out below.

27. The complainant and applicant messaged on the evening of 31 August 2022 and on 1 September 2022 about the complainant getting a morning after pill, for which the applicant transferred money to the complainant. After those messages, the complainant ceased responding to the applicant’s calls and messages. The applicant continued messaging and calling her, repeatedly asking whether he had done something to upset the complainant, “What did I do”, and why she was ignoring him. The complainant blocked the applicant on her phone on 11 October 2022 and on WhatsApp on 25 October 2022.

Evidence of complaint

28. On 2 September 2022 the complainant told Sebastian Folbigg, a friend, that she had a recent hookup which was initially consensual but progressed into something much less consensual. On 17 November 2022 the complainant told her mother that she had been raped. On 23 November 2022 the complainant attended Mascot Police Station and reported the matter to police.

The lead up to the first pretext call

29. On 16 June 2023 Campbell J issued a warrant pursuant to s 19 of the Surveillance Devices Act 2007 (NSW) authorising the use of listening devices on or about the complainant’s body for the period of 60 days from 16 June 2023 until 14 September 2023.

30. On 10 August 2023 the complainant contacted the applicant by text message. She clearly did so in order to facilitate a telephone conversation that could be recorded pursuant to the warrant. From the outset the messages between the complainant and the applicant during August 2023 were replete with sexual innuendo. For example, the complainant messaged “hmm need me for yourself?” to which the applicant responded “U should come I can hold you down cover your Mouth so the nurses don’t hear and fill you up”. On 14 August 2023 the applicant messaged what he would do if he ever bumped into the complainant, saying “I’d watch you go into the bathroom at the shops, follow you in and lock the door behind you. Use you over and over again while covering your mouth, no one would even know you were yelling for help”. He then asked “When are your free days babe r u ready to be used”. It would readily be inferred that the applicant interpreted the messages from the complainant as indicative of her wanting to resume contact, and potentially also sexual activity, with him and that this might well include the consensual non-consensual activities that they had previously discussed and, on at least one occasion, engaged in. The complainant said nothing in these messages to dissuade the applicant from that impression.

The first pretext call

31. On 15 August 2023 the complainant attended Bankstown Police Station where she engaged in a 24-minute recorded telephone call with the applicant (first pretext call). DSC Sommerville gave evidence, both on the voir dire and at trial, that the complainant was briefed before the first pretext call and that briefing was recorded by video. As part of that briefing, the complainant was notified that no one was to instruct her what to say and that she was making the phone call of her own free will.

32. No admissions relevant to the offences were made by the applicant during the first pretext call and the applicant did not object to its admissibility.

33. I have listened to the first pretext call. The tone between the applicant and the complainant is friendly. The complainant said “I just wanted us to catch up”, and much of the conversation was in the form of catching up and discussing the applicant’s recent surgery. At one point the applicant said that he thought she didn’t like “the last time” because she “sort of went quiet after that”. There was then discussion about how uncomfortable the unit had been and that the complainant deserved better than that. In this context, the applicant said “[i]t was a bit too much. Ha. I agree. So I’m sorry”. The complainant also told the applicant that their sexual intercourse on the last occasion was “hard” and “rough”. She said that she had said “stop” and he responded: “But I did didn’t I?”. The complainant responded “No you didn’t. To be honest” and a little later, apparently responding to this, the applicant said “Are you sure? I don’t, you sure that was me?” He later said he “can’t remember that much. Ha.” Twice during the first pretext call the complainant told the applicant that he didn’t really listen to her on 31 August 2022 but his response was that he couldn’t remember that part. At one point the complainant said “You didn’t let me come” to which the applicant responded “That's pretty bad. Oh, well. I owe you then and don't I?”

34. As was submitted by the applicant, there are a number of matters identified in the first pretext call for which the applicant may have wished to apologise to the complainant or in respect of which he may have felt guilty. This has some significance as regards the admission and use of the applicant’s expression of guilt in the second pretext call (below at [47]).

Events between the two pretext calls

35. There were a number of messages between the complainant and the applicant between the two pretext calls. On 7 September 2023 the complainant messaged that “a call would be nice, but ill see if I can”. Some time after this there was the following exchange:

Applicant: Going to be a good girl at school today baby

Complainant: Hmm yes daddy, I’m going to try

Applicant: I’m glad you are going to try be a good girl for me

Applicant: Otherwise if I find out you are not I’ll have to come make a woman out of you.

Complainant: how are you gonna do that?

Applicant: Punish you.. Breed you Make a woman out of you

Complainant: hmm haven’t done that in a while

Applicant: Will have to fix that

Complainant: this is going to be fn

36. They then arranged to meet the following week and the applicant suggested he would book a hotel room. On 11 September 2023 at around 10.43am the complainant suggested that they could talk and they arranged a call at 12.00pm.

The second pretext call

37. The second pretext call took place at around 12.06pm whilst the complainant was alone in a room at Bankstown Police Station. The call lasted for about half an hour. The complainant was again given a briefing (which was recorded) before the second pretext call and there is nothing to suggest that the police encouraged the complainant to conduct the call in the way that she did.

38. I have listened to the second pretext call. It begins as a friendly conversation, with some talk of arranging a time to meet in person. After a few minutes the complainant’s tone becomes somewhat flirtatious when she asks “Did you miss my voice?” Thereafter, the tone of the conversation becomes highly sexualised. When asked why she messaged him the previous day, the complainant said:

Complainant: One was um, look I have needs. O.K. Ha, ha.

[Applicant]: Yes. Ha, ha.

Complainant: Ha, ha, ha, ha.

[Applicant]: You were in one of those moods?

Complainant: Perhaps. Maybe.

[Applicant]: O.K.

Complainant: There’s a possibility.

[Applicant]: All right. Cool. We’ll go with that O.K.

Complainant: Yeah. Fuck yeah. Ha, ha.

…

Complainant: …. You have needs, I have needs.

[Applicant]: That’s true.

39. A bit later there is a further exchange in which the complainant asks what had happened “last time”, which prompted the following exchange:

[Applicant]: Ah, yeah. I kind of just used you the way I wanted to but not on the most comfortable ground. Hmm, mmm.

Complainant: The, the lack of bed kind of

[Applicant]: Yeah. Lack of bed with kind of yeah.

Complainant: What was it, it was like?

[Applicant]: That was - - -

Complainant: Ha.

[Applicant]: It was, it was like a doona without the bed. Ah ha, ha.

Complainant: Ha ha. The doona - - -

[Applicant]: I get it, I get it I fucked up.

Complainant: Oh, you fucked up.

[Applicant]: I get it.

Complainant: Oh.

[Applicant]: So I, I owe you, I know. And so I want to make sure from now on it's done properly.

40. A bit later the complainant asks the applicant:

And tell me what did we do last time? Tell me Daddy - - -

41. This exchange follows:

[Applicant]: I just um, held you against your will. Just used you the way I really want to.

Complainant: Just used me.

[Applicant]: ..... Mmm.

Complainant: Yeah.

[Applicant]: Like I'm walking around with like the biggest hard on right now in this park. Anyways. Ha, ha.

Complainant: Ffff, doesn't sound like it's my problem does it?

[Applicant]: No it doesn't.

…

[Applicant]: Ha, ha. Are you playing with yourself right now on your day off?

Complainant: Well l do have a whole room to myself.

[Applicant]: Oh. Thanks for the invite.

Complainant: Oh, what a shame.

[Applicant]: Hmm, hmm, hmm. I know.

Complainant: Sorry you can't come in.

[Applicant]: No. That's .....

Complainant: Not yet.

42. The audio at this point confirms what is apparent from the text. The tone of the interaction has become that of a sexually provocative exchange. The complainant’s tone suggests that she was aroused and what she says might suggest she was masturbating during the call. A bit later the applicant asks the complainant if she wants him “to be like full descriptive” to which she responds “Ah hmm”, in an encouraging tone. He starts to speak and she says “Come on. Ha, ha”. They then have the following exchange:

[Applicant]: - - - yeah. Oh, just what I always think about is just you, just how I bent you over that bed and just fucked the shit out of you and not caring if you wanted me to stop or not.

Complainant: Mmm.

[Applicant]: But with your arms behind your back, pushing your head against the pillow.

Complainant: Mmm.

[Applicant]: And then just hanging you around by your hair, making you take it all the way in the throat.

Complainant: Ah.

[Applicant]: That was my favourite part.

Complainant: Yeah.

[Applicant]: Even when you gagged on it, making you gag on it.

43. There is no dispute that this cannot have been a reference to what occurred on 31 August 2022 as there was no bed on that occasion and it is not suggested that oral sexual intercourse occurred. It was either, on the complainant’s account, what occurred during consensual sexual intercourse on 10 August 2022 or, on the applicant’s account, a sexual fantasy, in which the applicant was saying what he thought the complainant wanted to hear, or a reference to what occurred on 10 August 2022.

The first admission

44. Immediately after the exchange at [42] above, the following exchange occurred:

Complainant: Yeah. What about last time [erroneously transcribed as “Yeah all that last time”]?

[Applicant]: Yeah. At my unit.

Complainant: Ah hmm.

[Applicant]: How I pushed you around. Even though you looked uncomfortable.

Complainant: Yeah.

[Applicant]: Yeah. Yeah and I fucked you so hard in that unit 'cause I want you all there.

Complainant: Was I crying?

[Applicant]: You were crying and you were telling me to stop but I didn't listen.

Complainant: Yeah.

[Applicant]: You told me to stop and I ignored you.

Complainant: Did you?

[Applicant]: And because I think I slapped you a couple of times in the face when you said no too many times.

Complainant: Did you actually?

[Applicant]: Yeah I did.

Complainant: Fuck. Ha.

[Applicant]: Yeah.

Complainant: Did I say red?

[Applicant]: You did say red.

Complainant: And you just kept on going didn't you?

[Applicant]: I just kept going, I just didn't care, I just wanted to make sure that I bred you like the whore you are.

Complainant: That's right.

[Applicant]: Yeah.

Complainant: You did come inside of me.

[Applicant]: I did.

45. Both at the voir dire, and at trial, this was characterised by the Crown as an admission by the applicant. The Crown’s contention was that this was a factual account given by the applicant of what occurred on 31 August 2022. By contrast, the applicant contended that this was a sexual fantasy, consistent with the relationship between the applicant and the complainant, and that he was manipulated by the complainant to make these statements.

46. For convenience, and without intending any prejudgment, I refer to this passage of evidence as the first admission. I refer to the passage at [47] below as the second admission for the same reason.

The second admission

47. Later in the second pretext call the complainant told the applicant that “the last time I didn’t enjoy it”, clarifying that she didn’t enjoy it “in general”. The following exchange then occurred:

Complainant: Yeah. I just didn't like it.

[Applicant]: O.K. Well if you can free up your day.

Complainant: But like I think like you, I think you're aware of that you know.

[Applicant]: I am yeah. No I am.

Complainant: Like you get me like. I think that you know that already.

[Applicant]: I do get you. Yeah, yeah I get it. I, I, I felt like even though obviously I did what I did, I still felt that guilt. And it didn't feel right. Like it didn't feel like it did when we you know did it properly. Anyway. If you know what I mean?

Complainant: Yeah it was different.

[Applicant]: Yeah.

Complainant: Oh, you felt guilt?

[Applicant]: I did.

Complainant: Oh, were you guilty? Oh, no.

[Applicant]: Ha, ha. Oh, no.

Complainant: Ha, oh, no. Ha, ha. Guilty. Ha, ha.

[Applicant]: Ha, ha. Ha, ha, ha.

Complainant: Why'd you feel guilty? It's sad.

[Applicant]: ..... No it's fine. It's fine. Just - - -

Complainant: It's fine?

[Applicant]: Leaves me, leaves me room to make it up to you doesn't it?

Complainant: Mmm.

48. The applicant continued messaging the complainant after the second pretext call. The complainant blocked the applicant’s number on 21 September 2023.

The applicant’s arrest and interview

49. On 2 November 2023 the applicant attended Bankstown Police Station, having been asked by police to come in. He was arrested and voluntarily participated in an electronically recorded interview (ERISP) that morning, at the conclusion of which he was charged.

50. DSC Sommerville and SC Barreca conducted the ERISP. They explained that they were investigating a sexual assault on 31 August 2022 in relation to the complainant. The applicant’s account was that he had sexual intercourse with the complainant on the floor of his investment unit and it was consensual and rough, as that was what she wanted. He said that she wanted “more dominant”. He also said they had telephone conversations about what she wanted, including that she asked him to be a “little bit rougher”, asked him to spank her and pull her hair and bite her and he had done so. He said that they had discussed rape fantasies in conversations and on “the app” and had “experimented with that” during sex. He explained that the complainant would say “different colours” during sex, and that red meant “stop” although he also said that she also said “[s]ometimes if I say red, don’t stop” but if she said red he would just stop “because I don’t want to play around with that”. He later denied that he ever heard her say “red”.

51. The applicant mentioned that the complainant had blocked him and then texted him in August 2023. As to this, he said that they had “flirted a little bit over the phone” and talked about their previous experience, and that she said that their experience at the unit could have been better as there was no bed and “it wasn’t the best out of like our meetings and, and our conversations”. He denied that she ever used the words “I’m serious, red”, “Red. Red. Red.” or told him to stop on 31 August 2022. He was asked how she appeared and he said that she was enjoying it, didn’t tell him “not to um go ahead or anything like that”, and he said that he didn’t think she had ever cried.

52. After those exchanges, the applicant was told that the two calls between himself and the complainant, to which he had been referring, had been recorded pursuant to a warrant. The complainant was then asked if he wanted to add anything prior to listening to the recordings. He added that, “[l]ike, we fooled around a little bit on the phone … you know, she said she was doing something and you know, she told me to read out to her like what I’d do … [a]nd I just played along with the fantasy of it all”.

53. A portion of the second pretext call was played to the applicant, after which he said that he “pretty much” remembered the conversation after listening to it. The following exchange then occurred:

Q580: O.K. O.K. So you agree earlier - - -

[Applicant]: Mmm.

Q581: - - - I asked you at any point if [the complainant] said red?

[Applicant]: Mmm.

Q582: And you said, “No, she’s never used it.”

[Applicant]: Mmm.

Q583: Is there anything else you want to tell me about that?

[Applicant]: Um yeah but like she’s use, she’s used it but like we’ve discussed it, like she didn’t like she, she would say the colour but then she wouldn’t say stop. Like I would tell her, “Do you want me to stop?” And she’d be like “No. No. Keep going but like don’t go as hard.” That’s all. It wasn’t, red wasn’t like, it was just like stop, turn it back a bit”.

Q584: O.K. So earlier when we discussed it and I said your understanding of red is stop immediately and you agreed to that. Do you agree we said that?

[Applicant]: Ah possibly, but yeah I’m just a bit clouded right now with what’s going on.

Q585: [09.42] O.K. So at any point on the 31st of August, during intercourse, did [the complainant] use the word red?

[Applicant]: Um I'm like ah, like I'm not a hundred percent sure.

54. The applicant was asked further questions about the exchange at [44] above and after this there was the following exchange:

Q590: So is there anything you want to tell me further about that now?

[Applicant]: It's, it just sounds so out of contents [sic] the way, when you read it like that. Like it's, it's not a simple as that. It's everything that we did is, we, we discussed it was going to happen that way like that was - - -

Q591: Yeah.

[Applicant]: - - - the whole fantasy of it.

Q592: Ah hmm.

[Applicant]: Um even if she said red or if she didn't say red or whatever, it was just she wanted that fantasy of it and I stupidly, listening to my penis um, you know went along with that fantasy. Um but it was not like, I, I can see the, the painting that's being pictured here in, in a way that I've, I've done it against her will but that was the whole, the whole fantasy of it. It was, that's what she wanted, that's what she wanted. That's what I'm just trying to say like when I say I held her against her will or anything like that, that's just the whole, the whole fantasy of it. She wanted to, to, to feel real. If I personally felt that she really wanted us to stop and like she's done with it, I'm, I'm not, like I'm, I'm going to stop. I'm not, like I'm not a monster. I mean I might sound like a horny idiot you know - - -

55. The applicant maintained that everything was consensual on 31 August 2022. A bit later there was the following exchange:

[Applicant]: Um I don't, I really don't know what to say. I'm not feeling that great about it.

Q603: How did you feel after it, after you had sex on the 31st of August, 2022, how did you feel at the end of it?

[Applicant]: Personally - - -

604: Yeah.

[Applicant]: I felt like shit.

Q605: [09.46] Why?

[Applicant]: Because um at the same time of doing that, I'm trying to restore whatever I have left with my wife in a relationship. Um I just felt like absolute shit. Um very similar to how I'm feeling right now obviously - - -

Q606: Ah hmm.

[Applicant]: - - - with all of this coming to light. Um this, I don't know if I can say or if I have the right to say it's out-of-character for me um even though I've, I've, I've done what I've done. Um but just a lot going on in my life and I happened to meet [the complainant] and that's what she was into and she asked me to do it a certain way and I did it. I feel like I followed the instructions that she wanted. And um if it did go too far at all at any point, I don't feel like she made it that clear that it did. I, I do understand the colour scheme but you know, we, we talked about it in person many times and she said "You know, red's not always stop. You know, it, it's all part of the fantasy." Um that's why when I said like in that conversation that you just played um, yeah just, I just don't want to lose my family and my life right now oh ..... um - - -

The voir dire and the trial judge’s reasons for admitting the second pretext call

56. The applicant submitted that the whole of the second pretext call should be excluded either under s 90 or s 137 of the Evidence Act. As regards s 90, he contended that the call was the functional equivalent of consensual non-consensual type phone sex, that the complainant exploited their relationship and that she manipulated their relationship, and his infatuation with her, during the call to make it more likely that he would make statements that could be used as admissions. He contended that the complainant was an agent of the State in this regard. He also contended that the evidence was unreliable given that the applicant was playing along with the fantasy. He said that its use was, in these circumstances, unfair.

57. As for s 137 the applicant accepted that, if the Crown’s contentions were accepted, the probative value of the evidence was high, but he submitted that, given the context of consensual non-consensual phone sex, reliance on the call as evidence of admissions was highly prejudicial and that prejudice outweighed its probative value. The applicant did not submit that the part of the call describing events of 10 August 2022 should be excluded even if other parts of the call were admitted. Indeed, counsel for the applicant described these parts of the call as “the context” in which the later admissions were made, indicative of the ways in which the applicant was manipulated during the call and the ways in which actual experience and fantasy were interwoven during the call. In that way, it supported his submission that one aspect of unfairness was that this was a relationship “based on fantasies”.

58. The trial judge found that the second pretext call contained admissions, as defined in the Evidence Act, but it would not be unfair to the applicant to use the evidence. He was not satisfied that the complainant was an agent of the State. He found that the complainant engaged in deception and inducement, and that the admissions were made in the context of the applicant being aroused, but that those were matters that were clear from the audio recording of the second pretext call and could be readily understood by the jury. Whilst there was potential unreliability, his Honour was not satisfied that there was actual unreliability and whether the evidence was unreliable was a matter for the jury, including having regard to what the applicant said in the ERISP.

Relevant evidence at trial

59. The trial commenced on 5 March 2025. Both the complainant and the applicant gave evidence, as did Mr Folbigg, the complainant’s mother and DSC Sommerville. The recordings of both of the pretext calls, and of the ERISP, were also in evidence. The complainant’s evidence at trial was largely consistent with that set out above, derived from her statements tendered on the voir dire.

60. The applicant’s evidence at trial was that the digital and penile vaginal sexual intercourse on 31 August 2022 was consensual, did not involve rape fantasy, and that the complainant neither told the applicant to stop nor said the word “red” during that incident. He denied that the complainant’s account of that occasion was accurate. He said that, in the past, he had always stopped if she used “any of the safe words or traffic light systems”. He also gave evidence that, during sex at his home on 10 August 2022, the complainant had said red but then said to just “go a little bit less” and they “continued on”. He said that they had a lot of phone sex. He said that, in their exchanges, the complainant would use the word daddy “when she was trying to tell me she’s ready to meet up or she’s in the mood for that sort of thing”.

61. As to the second pretext call, he said that the exchange at [42] above was an account of what happened on 10 August 2022, but that the exchange at [44] above was “[j]ust more fantasy talk, phone sex”. He said during the call he agreed that she was crying and that she said red, and said he slapped her, to add to the whole fantasy of it, trying to describe a scene that would excite her. As to the passage at [47] above, he said:

When I say a word like guilt, I’m referring to going behind my partner’s back. Every time myself and [the complainant] had engaged in sexual contact or even if it was phone sex or whatever, I would always think of my wife afterwards. It sounds silly, but that’s how I always felt. I always started - after the arousal and all that was gone away I started to think, you know, shit - sorry, shouldn’t swear - you know, I’ve done this against - behind my wife’s back. I started to feel guilt.

62. He expressly denied during cross-examination that he said he was feeling guilty because he felt guilty towards the complainant and that it had nothing to do with his wife.

63. The applicant also explained his answer to question 592 (at [54] above) during the ERISP as references to “the fantasy, the phone call. The phone sex” and not accounts of what occurred on 31 August 2022. He said the call was a combination of what had happened on 10 August 2022 and fantasy talk. He also explained that during the ERISP he was confused, upset, in a scary location, and all he could think of was his wife.

Closing addresses at trial

64. The Crown case was that there was no consent from the beginning of the encounter on 31 August 2022 and that the complainant said “red” multiple times and “stop” but after this the applicant digitally penetrated her and then had penile vaginal intercourse. In this regard, the Crown primarily relied upon the complainant’s evidence. The Crown also said:

I want to turn to the pretext calls that you have heard, and I would submit to you, there are a number of things that corroborate or support the complainant’s version of events in terms of what she has told you.

65. The Crown later reiterated that the pretext calls, including the passages at [44] and [47] above, corroborated the complainant’s account. There was no contention by the Crown that either of the admissions, of themselves, could be relied upon to establish either the applicant’s guilt or a consciousness of guilt.

66. The Crown then turned to the applicant’s version of events on 31 August 2022 and submitted that four aspects of his version of events did not add up: (i) the applicant and the complainant did not engage in rape fantasy on 31 August 2022; (ii) the applicant’s account of what was said in the pretext calls changed (at first he said the calls were about previous experience before subsequently describing them as fantasy calls); (iii) the applicant changed his account as to whether “red” was said on 31 August 2022 (at first he denied this was the case before accepting that it had occurred after listening to the pretext calls); and (iv) the applicant changed the reasons for his feeling of guilt expressed in the second pretext call. The Crown’s submission was that any use of the word “red” was inconsistent with the accused’s account of “just normal sex” on 31 August 2022. The Crown ended his address with the submission that the jury would accept the complainant as a witness of truth and that:

The accused in the second pretext calls corroborates or supports her version of events, the accused stating he felt guilty for what he did, the accused’s contradicting versions of events about the content of the pretext calls, and the contradictory versions about the use of the word “red”.

67. The applicant’s counsel, in his closing address, submitted there was only one issue in the case, namely, whether the complainant consented, reminding the jury that the applicant’s account was that consensual sex occurred. He submitted that:

Because in the context of this case, the words “red” and so forth, whether they were used or not used is neither here nor there because clearly, from her conduct, the conduct that she asserts, she doesn’t want to have sex.

68. His submission was, in essence, that the complainant’s account should not be believed and that the passages of the second pretext call relied upon by the Crown amounted to “phone sex” precipitated by the complainant’s sexually provocative tone and her use of the word “daddy” which was a trigger word for the applicant, making him sexually excited. He characterised the first admission as sexual fantasies engaged in during phone sex. He also submitted that the applicant’s answers during the ERISP should be read as consistent with this. As to the second admission, he drew attention to the fact that the complainant had been referring to how he was cheating on his wife. The implication of this submission was that the applicant’s guilt should be inferred to be on account of him cheating on his wife. He submitted that, overall, the complainant should not be believed and the applicant should be believed.

The trial judge’s directions

69. At the conclusion of the evidence the trial judge discussed his proposed directions with the applicant’s counsel and the Crown in the absence of the jury. The Crown raised whether there should be a direction reflecting the principles in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 or Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28. The focus of this question was the Crown’s use of what were said to be lies by the applicant. In this context, the trial judge said: “[y]ou can make whatever submissions you like about whatever lies provided they’re not consciousness of guilt because you haven’t raised that with the Court”. His Honour asked if there was anything else from either counsel. Neither counsel raised the need for any further directions.

70. Midway through the trial judge’s summing up there were two further exchanges between the trial judge and counsel in the absence of the jury. The trial judge raised that the Crown relied upon the two admissions in the second pretext call. He indicated the terms in which he proposed to direct the jury in relation to these admissions, and these reflected the substance of his summing up. The applicant’s counsel raised no issue with the proposed direction and agreed that the trial judge should proceed on that basis.

71. In his summing up, by way of overview, the trial judge reminded the jury of their role, that they must act impartially and dispassionately, that they must not let sympathy or emotion sway their judgment and, this was repeated on a number of occasions, that the burden of proof at all times remained on the Crown to prove the applicant’s guilt beyond reasonable doubt, with that onus “never shift[ing]” to the applicant. His Honour added:

This does not mean that the Crown has to prove every single fact in the case beyond reasonable doubt, but it does mean that the Crown must prove each and every one of the essential elements or ingredients beyond reasonable doubt.

72. As to whether the applicant actually knew that the complainant was not consenting, the trial judge directed the jury that the Crown must establish that that was “the only rational inference or conclusion from all the circumstances” and that, “[f]or the purpose of deciding this mental element, you must consider all of the circumstances, including what, if anything, the [applicant] said or did”. The trial judge directed the jury as to the respective accounts of the complainant and the applicant, including what was said during the exchange at [44] above, and reminded the jury that the applicant said that he was aroused at the time, believed the complainant was aroused, and believed they were “engaging in phone sex or fantasy”, as they had in the past.

73. As regards the two admissions, the trial judge gave the following directions:

The Crown, as part of its case, relied upon certain things that the accused said in pretext calls, and in particular, and most importantly in the second pretext call, as being admissions by the accused. And in particular, the Crown relied upon the responses that the accused gave in the second pretext call from para 10 where there is discussion about things in a rental unit and there is reference to the word red being used and to the complainant saying “stop”. The Crown relied upon that passage as being admissions by the accused.

You would only use what the accused said in that second pretext call as evidence against him if you are satisfied that he was in fact admitting what occurred on 31 August 2022, that he was admitting what had occurred in relation to a real event. I may be stating the obvious, ladies and gentlemen, but you should consider whether there is an alternative explanation for the accused’s response, and in particular, it is submitted to you on behalf of the offence (as said) that an alternate explanation in the context of those pages themselves, the audio you listened to and the previous circumstances of the interaction between the accused and the complainant is that he was simply engaging in phone sex and fantasy and telling the complainant what she wanted to hear. So before you would use that evidence against the accused as an admission, you must consider whether there is an alternate explanation for the accused’s response.

The Crown also relied on a portion in the second pretext call where the accused is speaking to the complainant, quite obviously, and refers to feeling guilty, and the Crown argues that the accused is referring to feeling guilty because he is in effect admitting that he has sexually assaulted the complainant. But again, you must consider whether there is an alternate explanation for using those words, and here, the defence submit that the alternate explanation is that the accused is guilty because of his wife and because of the ongoing affair he is having - sorry, I should not say ongoing affair, because of what is occurring and the guilt that he feels in relation to his wife.

74. The trial judge described the Crown’s submission as being that “there were a number of aspects of [the pretext calls] that supported or corroborated the complainant’s version of events”. In this regard, the trial judge drew attention to the Crown’s submission that the first admission corroborated the account the complainant had earlier given to police and that this was a discussion about what actually happened on 31 August 2022. He again reminded the jury of the applicant’s contention that this was fantasising. As to the second admission, the trial judge characterised the Crown’s submission as being that this was not consistent with the applicant expressing guilt at going behind his wife’s back whereas the applicant’s contention was that that was why he was expressing guilt. The trial judge, whilst recounting these contentions, reminded the jury of his direction that, before they could use these as admissions, they had to consider whether there was an alternative explanation. As to the second admission, the trial judge described the Crown’s case as being that this was an admission of “committing the sexual offences”.

Ground 1

Relevant principles

75. The leading case on s 90 is Em v The Queen, in which Gleeson CJ and Heydon J observed at [56] that the language of s 90 “is so general that it would not be possible in any particular case to mark out the full extent of its meaning” and that the application of s 90 “is likely to be highly fact specific”: see also [109] (Gummow and Hayne JJ). Further, as explained by Gummow and Hayne JJ at [107], the focus of s 90 is on the fairness of using the evidence at trial, not directly upon the fairness of the circumstances in which the admissions were made or the means by which they were elicited. At [109] and [114] their Honours described s 90 as a “final or ‘safety net’ provision” which is engaged only after applying other provisions of the Evidence Act.

76. In Em v The Queen, it was accepted that the reliability of the evidence, encompassing both whether the admission was in fact made and whether it was likely to be true, was a factor affecting the fairness of its use, albeit that it is not the only consideration: at [73] and [78] (Gleeson CJ and Heydon J); see also Gummow and Hayne JJ at [112].

77. Cases subsequent to Em v The Queen establish the following principles:

78. It cannot be unfair to allow the prosecution case to be put to the jury if the evidence is capable of supporting a conviction unless there is some other factor at play: R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121 at [74] (Basten JA), cited with approval by the Court in Haines v R [2018] NSWCCA 269 at [272].

79. The fact that a complainant engages in a secretly recorded conversation with an alleged offender does not, of itself, make it unfair to use admissions elicited in that conversation. To hold otherwise would be to subvert “the statutory scheme involving judicially sanctioned covert surveillance as an aid to the detection of crime”: R v DRF [2015] NSWCCA 181; (2015) 263 A Crim R 573 at [92]-[95]; see also Em v The Queen at [69] and [78] (Gleeson CJ and Heydon J).

80. Unfairness for the purposes of s 90 might be established by forensic disadvantages that an accused might suffer at trial if the admission is used: Haines v R at [271]. This might include where: (i) there is potential for the evidence to be misused, as where it indicates misconduct on another occasion; (ii) where potential weaknesses in the evidence may not be adequately assessed by a jury: R v XY at [74]; (iii) where the quality of the evidence is such that it would be unfair to allow it to be considered by the jury as part of the Crown case: R v Koeleman (2000) 2 VR 20; [2000] VSCA 141 at [14]; or (iv) where the trial judge is satisfied that the admission was unreliable: Sullivan at [49]-[55].

81. Conversely, where prejudice caused by unreliability would be readily apparent to, or able to be assessed and evaluated by, the jury, or may be mitigated, that may tend against unfairness: R v Nelson [2004] NSWCCA 231 at [54]-[55]; Riley v R [2011] NSWCCA 238 at [155]-[158]; Sullivan at [57]-[58].

82. It is not relevant under s 90 that the accused might be forced to relinquish his "right to silence" in the face of such evidence, in order to provide an explanation to the jury. An accused has no “right to silence” in the sense that evidence which demands an explanation cannot be admitted: R v XY at [75] (Basten JA), see also at [154] (Simpson J); see also R v Ljubicic [2017] NSWCCA 283 at [33].

83. There is some uncertainty as to whether considerations of public policy or condemnation of the way in which an admission was obtained can be relevant in considering whether use of such evidence at trial would be unfair under s 90. This Court has held that considerations of public policy do not require the exclusion of pretext conversations when there is no unfairness in its use at trial: R v Ryan [2013] NSWCCA 316 at [68]. By way of background, Toohey, Gaudron and Gummow JJ observed in R v Swaffield (1998) 192 CLR 159; [1998] HCA 1 at [67]-[69](decided under the common law discretion to exclude admissions) that the concept of unfairness is expressed in the widest form in s 90. Their honours also observed at [69], by reference to the common law discretion to exclude admissions, that considerations of voluntariness, reliability and “whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards” overlapped and could not always be treated as discrete issues. It was also observed in R v Swaffield at [26]-[28] (Brennan CJ), [54], [60], [74] (Toohey, Gaudron and Gummow JJ) and [128] (Kirby J), that the same considerations may be relevant as regards the “unfairness discretion” (the subject of s 90) and the “policy discretion” (the subject of s 138 of the Evidence Act), albeit that each of these discretions had a different focus.

84. However, in Em v The Queen, Gummow and Hayne JJ at [120] held that impropriety, or condemnation of the manner in which evidence was obtained, is not a matter that directly bears on the exercise of the discretion under s 90, as it falls to be considered under s 138. Gleeson CJ and Heydon J in Em v The Queen declined to determine this question, although their Honours observed at [54] that factors relevant to the exercise of discretion under s 138, including police impropriety, had in R v Lee (1950) 82 CLR 133 been considered to be relevant to the common law discretion upon which s 90 was based). Kirby J held at [179] in Em v The Queen that s 90 should not be “read down” by reference to alternative grounds for the exclusion of evidence. The statement of Gummow and Hayne JJ at [120] was cited with approval in R v Ryan at [69]. There is also some suggestion in obiter dictum in Haines v R at [273] that it might have been relevant under s 90 if the admissions were obtained in a way deserving of disapproval. Conversely, it has been held that it may be relevant that there was no illegality or impropriety in obtaining the admission: R v Ljubicic at [31].

85. It may be relevant that the person eliciting the admission was an agent of the State: Pavitt v R [2007] NSWCCA 88; (2007) 169 A Crim R 452 at [70]-[71]; R v Cavalli [2010] QCA 343; (2010) 206 A Crim R 306 at [8]-[10]; R v Ryan at [65]-[66]; see also R v XY at [14]-[16]. It is not determinative to an individual’s characterisation as an agent of the State that the police facilitated a conversation being recorded: Pavitt v R at [71]; R v Ryan at [65]-[66]; R v XY at [15].

86. There might be a spectrum of more or less deceptive conduct by a complainant which may lead to the use of a recording being unfair. Instances where conduct might render the use of a recorded admission unfair might include choosing a time when an accused is particularly vulnerable which may not be apparent on the recording, use of words with a special meaning or which are deliberately ambiguous, or unrecorded gestures or facial expressions which enhance the ambiguity of what is conveyed: R v DRF at [4] (Leeming JA). All the conduct identified by Leeming JA has the effect of altering the character or context of the words used by an accused but in ways that would be difficult to discern by a jury. Thus, it may be that such conduct would be most aptly characterised as going to whether the evidence might be unreliable in a way which the jury could not reliably detect.

87. The reliability of what an accused says in a recorded conversation may be enhanced where the accused does not know of police involvement and the fact of recording avoids the frailties of human recollection: R v DRF at [98].

88. The applicant contends that the Court should adopt, or act consistently with, the terms of s 85(2) of the Evidence Act when approaching s 90. Subsection 85(2) applies where an admission is made by a defendant either to an investigating official or as a result of an act of a person who the defendant knew or reasonably believed to be capable of influencing a decision as to whether a prosecution of the defendant should be brought or continued, and provides:

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

79. The applicant’s contention should be rejected. First, as observed by Gummow and Hayne JJ in Em v The Queen at [94], Parliament cast s 90 in different terms to s 85. I would readily infer that this was a deliberate choice. Second, this choice is explicable on the basis that particular concerns arise to admissions which may be influenced by investigating or prosecuting authorities, including the reliability of any admission made as a result of the exercise of investigative powers and discretions. That explains the statements by courts considering s 90 to the effect that the reliability of an admission is enhanced where the person making the admission is not aware of any police involvement in eliciting the admission, see eg R v DRF at [98]. Third, it is inconsistent with the principles set out above.

Did the trial judge err in law in not excluding the admissions?

80. Subject to what is discussed at [90] to [98] below, the applicant’s contentions in support of ground 1 focus upon the first admission.

81. The applicant submits that the trial judge should have found that it would be unfair to the applicant to use the first admission at trial for essentially five reasons. First, the history between the applicant and the complainant, and the applicant’s obvious sexual arousal during the call, meant that the first admission was so likely to be unreliable that it would be forensically unfair to the applicant to permit it to be used at trial. In this regard, the applicant relies upon the character of the interaction being one in which the complainant intended to sexually excite the applicant rather than one with the objective of pursuing the truth and the forensic disadvantage associated with that. Second, necessary context to enable the jury reliably to evaluate the elemental admission and the extent to which the applicant had been manipulated and tempted by the complainant into making it, was unavailable since many of the written communications involving rape fantasies between the applicant and the complainant were not available (for the reasons I have already discussed) and no past verbal conversations involving rape fantasy were before the Court. The jury thus could not evaluate the second pretext call by reference to such material and this was a forensic disadvantage that could not be remedied. Third, members of a jury would not be expected to have had the life experience to enable them reliably to evaluate the elemental admission in an unprejudiced way. Fourth, use of the evidence placed a persuasive burden on the applicant to explain his history of sexual interactions and communications with the complainant and that was prejudicial to him, including because it concerned matters involving consensual non-consensual sexual intercourse which are “emotive”, “dangerous” and “terrible” concepts. Fifth, the admissions were exacted in ways which were improper or unacceptable as a matter of public policy and it was humiliating and degrading to use such evidence at trial. The applicant confirmed in his oral submissions, however, that he did not press any contention that the complainant acted as an agent of the State during the pretext calls.

82. These contentions should be rejected.

83. I would accept that there is a possibility that the first admission was not a reliable admission going to what in fact occurred. This is because the applicant appears to be sexually aroused during the second pretext call and it is possible that he was doing no more than referring to rape fantasy during that part of the call in which he made the first admission. I accept this may be relevant to unfairness under s 90: see above at [76]. I am not, however, satisfied that the evidence is not reliable: cf Sullivan, see above at [77]. Rather, particularly when viewed together with the applicant’s answers in the ERISP, there is a real question for the jury to evaluate (see above at [77]) as to whether the first admission corroborates the complainant’s account or was intended to be no more than a rape fantasy.

84. Further, the evidentiary context I have described would enable the jury fairly to evaluate the first admission: see above at [77]. This includes the complainant’s own evidence, the messages, the two pretext calls, including the description of the consensual activities on 10 August 2022 (or possibly, of other sexual fantasies) and the applicant’s answers during the ERISP. That evidence made it abundantly clear that rape fantasy was part of the consensual sexual encounters and communications between the applicant and the complainant. That is strongly supported by the evidence at [42] above.

85. I am also satisfied that this is evidence that members of the jury were able reliably to evaluate. The criminal justice system is such that members of a jury are regularly asked to evaluate evidence of matters of which they have no life experience. Indeed, I would expect that to be the norm rather than the exception. That evidence, on occasion, includes conduct and beliefs or motivations that are unusual, unpalatable or morally repugnant. The concept of consensual non-consensual sexual activities is one which a juror could reasonably be expected to understand and evaluate without prejudice, irrespective of whether they had ethical or other concerns about those activities.

86. I would also reject the applicant’s contention that the use of the evidence was unfair because it meant that he bore a persuasive burden of explaining its context. The applicant has no right to silence in the sense that evidence which demands an explanation cannot be admitted: see [77] above. This is not a case like R v Cook [2004] NSWCCA 52, where the explanation would itself expose the applicant as having a history of the very kind of offence with which he stood charged. Here, the explanation of consensual non-consensual messaging and sexual interaction was already a feature of the evidence and the applicant did not prejudice his defence of the charges by further explaining that context.

87. Finally, without determining the relevance of public policy to the question of whether use of an admission at trial is unfair (see [77] above), I would reject the contention that use of the second admission was unfair because it was improper or unacceptable as a matter of public policy for the admissions to have been exacted in the manner which occurred. I would also reject the contention that use of the admissions at trial was unfair because such use was humiliating or degrading for the applicant. Whilst reasonable minds may differ as to the propriety of engaging in a conversation in a pretext call which is likely to make an accused sexually excited, in context that is not a matter which makes the use of the admission unfair in this case. The evidence discloses that sexually provocative messages and conversations were an accepted part of the communications between the applicant and the complainant and evidence as to this was already before the jury. Moreover, any meaningful interaction about the history and nature of their sexual interactions, unless in the form of a sterile interrogation or an unadorned series of accusations (neither of which would likely prompt the applicant to speak freely), was likely to be sexually provocative. Conversing in the way in which the applicant and complainant had, in the past, freely conversed was objectively more likely to lead to the applicant speaking freely about what occurred on 31 August 2022. It is also relevant that the fact that the applicant was sexually excited would be readily apparent to the jury listening to the call, as would the deception on the part of the complainant, including in suggesting sexual excitement on her part.

88. Further, whilst the applicant’s account of this conversation is that it was pure fantasy, and the complainant enticed him to engage in such fantasies during the call, whether that was true was a question for the jury. The possibility that this was the true explanation for what he said during the call does not make it unfair to use the evidence at trial. There was a wealth of evidence in the trial, including from the applicant during the ERISP and in messages, that the applicant and the complainant engaged in rape fantasies. In any event, the possibility that the applicant might feel humiliated or degraded by use of the first admission at trial does not make that unfair.

89. I am also satisfied that the trial judge did not err in not excluding the first admission under s 137 of the Evidence Act. If the jury found that the applicant was in fact admitting that he kept having sexual intercourse after the complainant said “red” then that was evidence which strongly corroborated the complainant’s account. By contrast, in light of my analysis set out above, I am not satisfied that there was any significant prejudice to the applicant in the evidence being admitted: see eg the analysis in R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238 at [134]. I note, moreover, that, consistent with Em v The Queen at [109] and [114] (Gummow and Hayden JJ), exclusion under s 137 should be addressed before s 90. However, given the way the applicant structured his submissions it is convenient to deal with the contentions in the order set out above.

Did the trial judge err in not excluding, or giving a tendency direction in respect of, the evidence at [42] above?

90. In ground 1 the applicant advances a further contention that, even if the admissions were admitted, the trial judge should have excluded that part of the pretext call set out at [42] above. The applicant contends that that evidence should not have been admitted as it was prejudicial, not probative of any fact in issue and the Crown had not addressed the evidence’s probative value in its submissions on the voir dire.

91. This was not a contention advanced on the voir dire albeit that the applicant did object to the admission of the whole of the second pretext call and did include the evidence at [42] above in his written submissions on the voir dire. Indeed, on the voir dire the applicant implicitly relied upon this evidence, to the extent that he relied upon the history of consensual non-consensual sexual activity between the applicant and the complainant in support of his submission that the first admission was sexual fantasy. Moreover, where, as here, the applicant did not submit that this evidence was prejudicial or that it should not be admitted even if the admissions were not excluded, it is readily understandable why the Crown did not address the probative value of this evidence on the voir dire. In any event, on its face the evidence had probative value in providing context for the second admission and in supporting other evidence going to the background of consensual non-consensual sexual activity between the applicant and the complainant and (for the reasons set out below) there was no realistic possibility of prejudice to the applicant by its admission.

92. Relatedly, and it is convenient to deal with this here, in ground 2 the applicant contends that the trial judge should have given an anti-tendency direction as regards the evidence at [42] above notwithstanding that neither counsel sought, nor even raised the possibility of, such a direction. The applicant submits that the evidence at [42] above goes to the applicant’s obsession with raping the complainant: he is “desirous and titillated and all he thinks, always what he thinks about is, essentially, raping her”. He submits that where such conduct was precisely what the offending entailed, and the Crown contended that the applicant’s account that no rape fantasy occurred on 31 August 2022 was improbable, there was a risk that the jury might engage in prohibited tendency reasoning, finding that this evidence made it more likely that the offending occurred.

93. There are four fundamental difficulties with these contentions. First, the complainant’s evidence on the voir dire, and all evidence at trial, was that the sexual intercourse on 10 August 2022 was consensual. Thus, there is no room for the evidence at [42] above to be relied upon to support a tendency of the applicant to engage in non-consensual, as opposed to consensual non-consensual, sexual intercourse. Either it is pure sexual fantasy (as was submitted by the applicant’s counsel on appeal) or it is a description of consensual sexual intercourse (consistent with the complainant’s evidence at trial and one alternative posited by the applicant in his ERISP and evidence).

94. Second, and relatedly, this evidence supports the applicant’s overarching narrative, relied upon in submissions on the voir dire, that he and the complainant had a history of sex and phone sex which included consensual non-consensual sexual intercourse and rape fantasies. In light of this, the applicant contended, and his evidence at trial was, that what he said during the second pretext call about their sexual interactions on 31 August 2022 was a further instance of these rape fantasies that he thought the complainant was aroused by. Thus, the evidence at [42] above provided context for the applicant’s contention that he understood that the rape fantasy talk during the second pretext call was sexually exciting the complainant. Moreover, this evidence was merely a further instance of that which the applicant himself said was part of the interaction between him and the complainant.

95. Third, there was no suggestion during either the voir dire or at trial that the evidence at [42] above might be relied upon by the jury as establishing any tendency on the part of the applicant. Whilst the Crown did submit that the applicant’s account that there was no rape fantasy behaviour during the sexual interaction on 31 August 2022 “did not add up”, the Crown did not rely upon what occurred on 10 August 2022 in support of that submission. Nor, in circumstances where all evidence supported the applicant’s account that the previous sexual interactions between the applicant and the complainant were all consensual, was there an inherent risk of tendency reasoning. In these circumstances, a sound forensic reason for not seeking a tendency direction was because such a direction might confuse the jury to the prejudice of the applicant by suggesting that the second pretext call could be interpreted as showing that the applicant was sexually aroused by non-consensual sexual intercourse when that was not part of the Crown’s case. That is also a sound, and not erroneous, reason why a trial judge would not wish to raise the possibility of tendency reasoning in his directions to the jury.

96. Fourth, the evidence had probative value in that it provided context for the later exchanges in the second pretext call concerning the events of 31 August 2022. In this regard the evidence assisted the applicant in that it disclosed the escalation in the sexualised character of the conversation during the second pretext call and supported the applicant’s contention that he was enticed during the call to describe consensual non-consensual sexual interactions, culminating in what he said about the 31 August 2022 interaction.

97. In these circumstances, the trial judge did not err in not excluding this evidence under s 137 of the Evidence Act and did not make an error of law in not giving a direction that the evidence at [42] above could not be relied upon by the jury in support of tendency reasoning. There was no realistic possibility of the jury using the second pretext call in this way.

98. It follows that ground 1 should be dismissed.

Ground 2

99. In light of the analysis at [90] to [97] above, leave under r 4.15 should be refused. Even if leave were granted, ground 2 should be dismissed. Whilst in oral submissions the applicant’s counsel said that a tendency direction should have been given as regards other parts of the second pretext call in which it appears that the applicant is being “titillated by raping the complainant”, that contention suffers from the difficulties discussed at [90] to [97] above.

Ground 3

100. The applicant makes four related contentions as to the adequacy of the trial judge’s directions in respect of the admissions. He places particular significance on the trial judge’s reference, during his summing up, to the Crown’s submission that the applicant was “referring [during the second pretext call] to feeling guilty because he was in effect admitting that he has sexually assaulted the complainant”. The applicant accepts that the trial judge directed the jury that the question remained at all times whether the Crown had proved the applicant’s guilt beyond reasonable doubt (including in the context of a Liberato direction) before turning to the topic of the admissions. However, the applicant contends that the sequential structure of the summing up was such that the directions in respect of the admission were inadequate.

A direction as to drawing adverse inferences

101. First, the applicant says that the jury should have been, but were not, directed that they should not draw any adverse inference from the two admissions at [44] and [47] above unless they were satisfied that the only reasonably available, or rational, inference to draw from what the applicant said, was that it was true.

102. The applicant relies upon Crane v R [2025] NSWCCA 93 in support of this contention. In Crane, however, the Crown’s case was circumstantial and one of the acts of procurement relied upon was said to have taken place during a 6 minute telephone call. In these circumstances, it is understandable why Chen J (with whom Harrison CJ at CL and Yehia J agreed) held that the inference that the act of procurement took place during the 6 minute call had to be “the only rational inference in the circumstances able to be drawn”: see at [197] and [203]. His Honour made that finding because that inference was a necessary step in finding that the act of procurement took place and thus, that the accused was guilty. Consistent with this, his Honour relied upon the passage in Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 at 104 where it was said that:

[t]o enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’.

103. So understood, the passage the applicant relies upon in Crane provides no assistance in this case. This is not a circumstantial case. Neither admission was relied upon as the sole evidence in support of the applicant’s guilt. Whilst the applicant seeks to characterise the admissions as a separate pathway to guilt, that was not how the case was put to the jury by either the Crown or by the trial judge in his summing up. Rather, at all times the admissions were characterised as matters which corroborated or supported the veracity of the complainant’s account. Having regard to this, and to the nature of the admissions, there was no realistic possibility here that the jury would convict the applicant on the basis of one or both of the admissions in circumstances in which they did not accept the complainant’s account of the offending. As the jury was directed, the admissions went to corroborate or support that account.

104. In these circumstances, the trial judge did not err in not directing the jury that they could only draw the inference that, in the first admission, the applicant was admitting that the complainant had said “red” and he had kept going, or that, in the second admission, the applicant was expressing guilt on account of what he had done to the complainant on 31 August 2022, if that was the only rational inference available.

105. In this regard, contrary to the applicant’s contention, I am satisfied that the trial judge’s directions, read as a whole, made it plain to the jury that they should not rely upon the admissions as evidence against the applicant if they considered that there was an alternative explanation for what he said. That is the natural implication of what the trial judge said, as extracted and summarised at [73] to [74] above. This sufficiently directed the jury that they should not use the evidence as admissions against the applicant if there was, by rational implication, an alternative explanation for the words used by the applicant.

A direction as to use of admissions

106. Second, the applicant contends that the first admission was “elemental”, in the sense that, if true, it constituted an admission as to one or more of the elements of the offences and could lead the jury to convict the applicant. On account of this, the applicant contends that the jury should have been directed that they must put the first admission to one side unless satisfied beyond reasonable doubt that it was true.

107. There is a large body of caselaw going to the standard of proof that must be met as regards admissions made by an accused.

108. In Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21, the only evidence implicating an accused was a confession he allegedly made to the police. The accused denied that he had made the alleged statement. The jury were given a general warning that they could use a statement made by the accused if they were satisfied that “it was made and that he was being truthful and accurate” but were given no warning specifically about the confessional statement. Barwick CJ, Gibbs and Mason JJ said at 261:

It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt. However, a confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case. … In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue.

109. Whilst Burns uses the language of confession, what was said necessarily applies (albeit not in the sense that a so-called “Burns direction” is necessary in every case) to an admission falling short of an admission of the offence with which an accused is charged: R v Russo (No 2) [2006] VSCA 297; Hewitt v R [2021] NSWCCA 227; Munshizada v R [2025] NSWCCA 172 and Fantakis. I note that Livesey P and Stanley J in de Virgilio v The King [2026] SASCA 16 at [83] characterised Burns as a case concerned with a confession, explained as “an admission to particular wrongdoing which is capable, of itself, of proving the elements of a criminal charge”. For my part, having regard to the analysis set out below, I see no reason to draw such distinction in applying what was said in Burns.

110. Since Burns, there has been some divergence as to whether or not a jury should be directed that they must be satisfied both that the admission was made, and that it was true (as relevant), beyond reasonable doubt. Some of the cases suggesting that the jury should be so directed involve admissions that are relied upon as the sole, or conclusive, proof of guilt: as in R v Green (2002) 4 VR 471; [2002] VSCA 34 and R v D’Orta-Ekenaike [1998] 2 VR 140 at 147. Others involve admissions relied upon only as part of the Crown case: as in R v Robertson [1998] 4 VR 30; R v Koeleman; Cotic v The Queen [2000] WASCA 414; (2000) 118 A Crim R 393 and Magill v The Queen (2013) 42 VR 616; [2013] VSCA 259. There are also a number of cases in which no such suggestion is made: see eg R v Perera [1986] 1 Qd R 211; Choudhary v Director of Public Prosecutions [2013] VSCA 325 at [56] (Priest JA) and Mehrdad v The King [2026] VSCA 52 at [55]. Indeed, in Small v Western Australia [2023] WASCA 179, it was observed at [114] that there is nothing in Burns that requires such a direction. Consistent with this, Nettle JA (with whom Neave JA and King AJA agreed) observed in R v Russo (No 2) at [11] that a direction such as that set out in Burns at [108] above will not be required in every case in which an admission as to an element of the offence is made.

111. More recently, the passage from Burns at [108] above was considered in Hewit**t***,*** Fantakis and Munshizada*.* In each of those cases the Court rejected an accused’s contention that the jury should have been directed that they could not use an admission, or admissions, unless satisfied of their truth beyond reasonable doubt. In Hewitt, Payne JA (Garling and Wright JJ agreeing) explained that the relevant authorities (which include those discussed at [110] and [111] above):

… do not establish that a direction of the kind sought is required as a matter of law in every case in which there is a dispute about whether a confession or admission was truthful and accurate.

112. A similar approach can also be seen in Small at [107]-[126] where it was held that admissions which did not represent an independent pathway to a findings of guilts did not have to be proved beyond reasonable doubt; see also de Virgilio at [90]-[105] (Livesey P and Stanley JA) and [228]-[247] (David J). As Livesey P and Stanley JA observed in d**e Virgilio at [102], this approach was supported by the statement in R v ZT (2025) 281 CLR 137; [2025] HCA 9 at [67] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) where their Honours observed:

[l]eaving aside proof of an indispensable intermediate fact in a circumstantial case, the elements of an offence must be proved beyond reasonable doubt rather than the evidence that supports proof of those elements.

113. There are also cases in which admissions are relied upon as admissions of guilt of the offences charged, and questions arise as to the adequacy of the trial judge’s directions, but Burns is not cited. An early example is Walford v McKinney [1997] 2 VR 353 where Callaway JA explained at 357 that:

It is customary to direct juries in relation to a confessional statement that they must be satisfied beyond reasonable doubt that it was made, but it is not correct as a matter of principle that the making of every confessional statement has to be proved beyond reasonable doubt. The statement may be a part of the evidence which together with other evidence in the case satisfies the tribunal of fact to the requisite criminal standard. Compare Edwards v R (1993) 178 CLR 193 at 210.

…

Only if he regarded the confessional statement as the sole proof of guilt or as an indispensable link in the chain of reasoning leading to a finding of guilt would he have to be satisfied beyond reasonable doubt.

114. Having regard to the authority set out above, it is readily apparent that there is no universal requirement that the jury be directed that they can only use an admission going to elements of, or to, the offence charged unless they are satisfied of the fact, truth and meaning of that admission beyond reasonable doubt. That is not what Burns says (at [108] above), nor is it how it has been interpreted by intermediate appellate courts. Rather, the direction required will depend upon the circumstances of the case. Factors of relevance will include: the cogency of the evidence as something which the jury might rely upon as, of itself, establishing guilt, the other evidence relied upon by the Crown, the way in which the case is put by the Crown, the extent of the risk that the jury might rely upon the admission as sole proof of the offence, what directions were sought by the accused at trial and what was said by the trial judge in the summing up as a whole. That is consistent, more generally, with the observation in Huxley at [12] above.

115. Here, I am satisfied that the trial judge’s direction did not deflect the jury from its fundamental task, in the sense described in Huxley and was not erroneous. It properly reflected the circumstances of the case. First, this was not a case where the admissions were relied upon by the Crown as anything more than corroboration or support for the complainant’s account: above at [64]-[65]. There was no suggestion in the Crown’s closing that the jury could, still less should, convict on account of the admissions. Second, no counsel adverted to the need for a direction in the form now contended for at trial, notwithstanding that there were a number of discussions about what directions were required. Third, there are sound forensic reasons why the applicant’s counsel might not have sought such a direction at trial. To do so may have suggested to the jury the possibility that they should rely upon the admissions as sole proof of the applicant’s guilt in circumstances where that was no part of the Crown case. Fourth, the trial judge gave clear and correct directions to the jury as to burden and standard of proof more generally, including a Liberato direction about which no complaint was made. Fifth, as already explained (above at [105]), I am satisfied that the trial judge’s directions adequately conveyed to the jury that they should not use the admissions against the applicant unless satisfied there was no explanation other than that he was making the admissions relied upon by the Crown at trial. Further, in the circumstances of this case, it was clear that the trial judge’s direction as to the admissions required the jury to be satisfied of the truth of the admissions. Sixth, as I have already found (at [103] above), there was no realistic possibility here that the jury would convict the applicant on the basis of one or both of the admissions in circumstances in which they did not accept the complainant’s account of the offending.

116. I would also reject the applicant’s contention that the principle in Burns doesn’t apply in this case, and that each of Fantakis, Hewitt and Munshizada are distinguishable as none of those cases involved any question about the truth of the admission. The need for a direction as to the truth of a confession was expressly identified in Burns and there is no proper basis for the contention that what their Honours said does not apply here. Moreover, in each of Fantakis*, Hewitt and* Munshizada the accused contended that the admissions should be understood other than as admitting guilt of the offences charged. That is precisely the issue here, namely whether the words spoken by the applicant should be understood as admissions of the sexual offending alleged against him.

A direction as to onus

117. Third, the applicant contends that the trial judge erred in not reinforcing in his summing up, or at all, that the applicant bore no onus to establish any explanation for the admissions alternative to that suggested by the Crown in its closing address. I would reject this contention. The evidence of the complainant and the applicant (respectively), and the submissions in closing address, postulated different ways of characterising the two admissions. The trial judge clearly directed the jury more generally about the competing versions of events given by the complainant and the applicant, that there was no burden whatsoever on the applicant and that, at all times, the question remained whether the Crown had proved the guilt of the applicant beyond reasonable doubt. It was in the context of this direction that the trial judge directed the jury in relation to the pretext calls. The jury was adequately directed as to how they should deal with the competing versions of events, including as to the pretext calls.

A direction as to consciousness of guilt reasoning

118. Fourth, the applicant submits that the jury should have been, but were not, directed that they could not treat the second admission as an expression of guilt on account of the applicant having sexually assaulted the complainant unless any other rational hypothesis had been excluded or if the jury were not satisfied that the evidence pointed unequivocally to consciousness of guilt of the offence. The applicant submitted that such other hypotheses included that the applicant was feeling guilty because the unit was uncomfortable, the complainant did not enjoy the sex, the complainant did not orgasm, or because he had cheated on his wife. The applicant draws an analogy between the situation here, and the rationale for directions as regards consciousness of guilt reasoning, such as those in Edwards*,* Cook and CC v The Queen [2010] NSWCCA 337.

119. Consistent with the case law discussed at [107]-[113] above, there is, however, clear authority that where an admission, including a lie as consciousness of guilt, is relied upon as corroborating other evidence, rather than as itself providing a basis for conviction, it does not have to be proved beyond reasonable doubt. In Edwards at 210, Deane, Dawson and Gaudron JJ said as much:

Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.

(Footnotes omitted)

120. In light of my analysis above as to how a jury might rely upon the admissions in this case, the applicant’s contention as to the form of direction required should be rejected.

121. In any event, the directions the trial judge gave as regards the use that could be made of the second admission met the requirements set out in Edwards at 211, where it was said that the jury must be directed that there may be other reasons for an accused having told the lie and that “if they accept that [an alternative reason is the] explanation for the lie, they cannot regard it as an admission”. Whilst in Cook at [50] Simpson JA said that a jury should be directed that evidence may only be used as evidence of consciousness of guilt where “it points unequivocally to consciousness of guilt of that offence”, that may be understood as picking up the requirement in Edwards that a jury should be directed to exclude alternative explanations (that is, alternative to being a consciousness of guilt of the relevant offence) rather than as going to the burden of proof required where conduct is relied upon as evidence of consciousness of guilt. In that way, her Honour’s observation is entirely consistent with the passage from Edwards at [119] above. Moreover, as was observed by the majority in Zoneff at [15], “rigid prescriptive rules as when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated”.

122. There are a number of further matters which stand against acceptance of the applicant’s contention that a consciousness of guilt direction should have been given. First, the Crown did not rely upon consciousness of guilt reasoning. Second, no consciousness of guilt direction was sought. Third, the issue for the jury was one of interpretation of the applicant’s actual expression of guilt reflected in the second admission, not whether his conduct might be interpreted as consciousness of guilt as in CC: see at [23]. In these circumstances, a direction referring to consciousness of guilt would likely have confused the jury, suggesting an additional form of reasoning, not relied upon by the Crown. In this context, it is apt to recall that in Zoneff at [16] it was said that “as a general rule, [a consciousness of guilt] direction should only be given if the prosecution contends that a lie is evidence of guilt”. Whilst subsequent cases have recognised that a range of words or conduct might require a consciousness of guilt direction, these words of caution are apt in the present case.

123. As McHugh J explained in KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 at [37], “[t]o give the warning [in that case, a propensity direction] when it is not needed may divert the jury from its proper task. The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings.” That concern is apt here.

124. The applicant also submits that the trial judge erred because he did not direct the jury as to possible explanations for the applicant’s expressions of guilt other than because of his wife. The difficulty with this submission is that, both in evidence and submissions, the applicant’s account was that he said he felt guilty because he was cheating on his wife. For the trial judge to have posited further alternative explanations for the applicant’s expressions of guilt might well have suggested to the jury that they should reject the applicant’s own explanation, and for that reason, may have been prejudicial to the applicant. As set out at [61]-[62] above, the applicant expressly denied that he made the second admission because he felt guilty “towards the complainant”.

Did the trial judge err in law?

125. Having regard to the analysis set out above, the trial judge did not err in law in failing to give the further directions contended for by the applicant. Leave under r 4.15 should be refused. Even if leave were to be granted, ground 3 should be dismissed.

Ground 4

126. Consistent with M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493, when considering whether a jury verdict is unreasonable, the question 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 must not disregard or discount either the role of the jury or “that the jury has had the benefit of having seen and heard the witnesses”. The Court added at 494 (Mason CJ, Deane, Dawson and Toohey JJ) that:

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.

127. As explained further in M v The Queen at 494:

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 the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

(Citation omitted.)

128. In R v ZT at [9]-[12], a majority of the High Court noted three aspects of M v The Queen. First, that the jury’s advantages are not confined to witness testimony and may extend to all of the evidence adduced at trial. Moreover, there is also the advantage of the jurors’ collective wisdom and experience, including from seeing and hearing the evidence as it unfolds. Second, an appellate court is required to give “full allowance” to the advantages of the jury in seeing and hearing the evidence when considering whether those advantages may resolve any doubt the appellate court holds as to an appellant’s guilt. Those advantages include a range of matters that a jury might observe during a trial and also the jurors’ breadth of understanding of how people speak and behave. Third, the assessment of the sufficiency and quality of the whole of the evidence that is required of the appellate court (at [11]-[12]):

… is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties' respective cases at the trial.

…

[I]t is for the parties to place all evidentiary material and submissions before the appellate court which they consider relevant to the discharge of the court's function and it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not.

(Citations omitted.)

129. The applicant’s contentions in support of ground 4 are narrow and brief. He contends that there was a reasonable doubt, on the evidence as a whole, that the applicant knew that the complainant was not consenting to the sexual intercourse such that the verdict was unreasonable. He relies, in particular, upon the applicant’s messages in the period after 31 August 2022 which, he says, suggest that he was genuinely perplexed as to why the complainant was not contacting him. He contends that this state of mind cannot sit with the complainant’s allegations. He also relies upon his denial, in the first pretext call, of any misconduct and the complainant’s failure to test him on those denials during that call. The applicant submits that, if his exculpatory statements are taken into account, the conclusion that the applicant knew the complainant was not consenting was unreasonable.

130. The matters relied upon by the applicant do not cause me to have any reasonable doubt as to the correctness of the jury’s verdict. Whilst the messages in evidence show that the applicant sought to contact the complainant and appeared to be perplexed as to why she would not return his messages or calls, that is in no way inconsistent with him having had sexual intercourse with her on 31 August 2022 knowing she was not consenting. Given the nature of their previous interactions, he may well have thought, or at least hoped, that she would be willing to continue their relationship notwithstanding what happened on 31 August 2022. In any event, if the jury considered that the complainant was an honest witness giving a reliable account of what occurred, this is not evidence that suggests a reasonable doubt about what happened on 31 August 2022.

131. The same is true of the complainant’s failure to challenge the applicant directly during the first pretext call. In any event, during that call she told him that during the “last time” she had told him to stop and he didn’t. When he said that he had stopped she challenged him, saying: “No you didn’t. To be honest”. Later she told him that, on that occasion, “you didn’t really listen to me”. Nothing in that call led to any reasonable doubt about the applicant’s guilt.

132. I have carefully reviewed the evidence as a whole, including the two pretext calls, paying particular attention to the matters relied upon by the applicant in his submissions on appeal. Having done so, the quality and sufficiency of the evidence as a whole does not cause me to have a reasonable doubt as to the applicant’s guilt. The complainant’s account was clear, cogent and largely consistent. The pretext calls provided some corroboration and support for the complainant’s account, as did the evidence of complaint. The applicant’s evidence, both in the ERISP (which, consistent with the parties’ submission I have not listened to, having read the transcript) and at trial, does not cause me to have any doubt as to the truth or reliability of the complainant’s account of the offending.

133. As is well recognised, the scope of the advantage that the jury has over an appellate court will vary: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [17]. In this case, I am satisfied that the jury had a real and significant advantage over this Court in assessing the evidence as a whole, having heard and seen both the complainant and the applicant give evidence over a number of days. Given that the key question in the trial was whether the complainant’s evidence as to the events of 31 August 2022 should be believed, that advantage was considerable. In light of this, any doubt I may have experienced would have been capable of being resolved by that advantage.

134. In these circumstances, ground 4 should be dismissed.

Conclusion

135. The orders I propose are:

136. Leave is refused under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) as regards grounds 2 and 3 of the applicant’s proposed notice of appeal.

137. Leave is granted as regards grounds 1 and 4 of the applicant’s proposed notice of appeal.

138. The appeal is dismissed.

139. R****IGG J: I have had the considerable advantage of reading the draft judgment of Stern JA. I agree with the orders proposed by her Honour, and her Honour’s reasons. Having undertaken my own assessment of the evidence I am of the view that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. Some of my reasons for reaching that conclusion are additional to or slightly different from those articulated by her Honour. These have also influenced my agreement with Stern JA’s conclusions regarding the remaining grounds of appeal.

140. I do not regard the first pretext telephone call as being as anodyne as advanced on the applicant’s behalf, although the arguments made on his behalf about it were sensible and appropriate ones to make at trial and on appeal. After the complainant resumed contact with the applicant in August 2023 in coordination with police, in the lead up to the first pretext call, one of the text messages involved the applicant telling her that he had tried to find someone like her but it was impossible because “No one could handle it” and “No one as sexy and as durable as you”. She raised this message with him during the first pretext call. He said “I think you should just take it more. Like the hard stuff. The rough stuff. That you actually enjoyed it”. She said “Sometimes the rough stuff can be a bit rough though”. He said “Yeah, yeah. Of course. But I mean I, I don’t know, just”. They then spoke about her not liking the occasion at the empty unit, including because it was not very comfortable.

141. At a later point the applicant told the complainant he had been with two others since he last saw her, but this was “Not that great” because they were not her. He said “When you set the bar that high, it’s pretty hard.” When she asked why the bar was so high, he responded “I don’t know just everything that we did and everything that you like. Not everyone’s into that. Ha”. She then said that it was “hard” and “rough”. He then asked “Was it too much?” and the conversation outlined by Stern JA above at [33] regarding her telling him to “stop” occurred. She said “I remember you pushing me to the ground” to which he said “‘Cause we did that little. Mmm. Maybe it was a bit too much. I’ll have to control myself. You awoken, like awoke me a little bit. In that way”. She said “You pushed me into the corner” and he said “Mmm”. He said he could not remember what he said at that point, and offered to “take it back a notch, or two”. When she suggested that the second time was not as good as the earlier occasion because he “didn’t care”, he stated “No. I think I always care but, maybe just went a bit overboard”, and that maybe he was “a bit selfish”. In context, the reference to the second time should be taken as meaning the second occasion of penile-vaginal intercourse, being their interaction on 31 August 2022, as compared to the first on 10 August 2022 at his home.

142. I regard the applicant’s comments about it having been “too much”, needing to control himself (in the sense she had awoken in him), having gone overboard, having been selfish, and suggesting they can take it back a notch or two as capable of further supporting the complainant’s account of what occurred on 31 August 2022. His acceptance of having done something like push her to the ground, and of her saying “stop” (if it related to 31 August 2022) offered additional support, and was in contrast to the applicant’s evidence at trial that the complainant said no such thing. Her account at trial was of him putting her on the mat (after physical violence) and that she regarded this as correctly described as pushing her to the ground.

143. These answers were supplemented by those provided in his ERISP. Prior to being told that his two recent telephone conversations with the complainant had been recorded, he acknowledged only one incident of penile-vaginal intercourse, at his investment unit. He described two interactions before that occasion in his car involving kissing and touching only, when they spoke about having sex. He described going along with what she wanted during the sexual intercourse, such as going harder and rougher, spanking her (which he did, on her bottom), pulling her hair and biting her. He said she had mentioned to him wanting a feeling of having a little bit of control taken away, and they experimented with that and the roughness when having sex. He said initially he did not force her to the ground, but that they helped each other down. However he agreed that it was rough, as that was what she wanted, and he tried to be more dominant because that is what she wanted.

144. After the existence of the recordings was disclosed to the applicant and some portions played and the transcripts of them read, he provided conflicting answers as to whether the word “red” had been used and what he took it to mean. The applicant was asked whether at any point he threw the complainant to the ground and said “We wrestled around a bit, yeah. Yeah”. He recognised a type of crying, as quoted below, and at a later point acknowledged her mascara was running on her face, but suggested he guessed it was from sweat.

145. I find these and other aspects of the applicant’s answers after the most salient aspects of the second pretext call were played or read to him, which on the Crown case were about events on 31 August 2022, as most tangibly relating to what occurred (albeit not necessarily what he felt), not only what was said as a fantasy in the phone call (which was his evidence at trial). The portions about: the complainant crying; her telling him to stop and him not listening to her and ignoring her; him slapping her in the face when she said “no” too many times; and her saying “red” after which he kept going and ejaculated inside her, as set out by Stern JA above at [44], were described by him in the ERISP as being out of context because “it’s not as simple as that” as “It’s everything that we did is, we, we discussed it was going to happen that way like that was … the whole fantasy of it”. He continued (noting he had not yet referred to any sexual intercourse at his house on 10 August 2022) to say that although the picture was being painted of him having done this against her will, he went along with the fantasy and that was what she wanted, for it “to feel real”. He said that if he had felt that she really wanted to stop, he would have. Particularly in light of his earlier account to police before he knew the calls were recorded that in the two calls they discussed their prior experiences, it is very strained to read these answers as displaying only fantasy in the telephone call, rather than in any way relishing in (and perhaps exaggerating) the memory of playing out the fantasy on 31 August 2022.

146. The same applies to the applicant’s further answers about whether the complainant was crying – which he had denied before being played the second pretext call, but which was asserted in the second pretext call. He gave the following answers after being asked whether she was crying:

“Q598 So was she crying?

A Wasn’t crying, it was more like - I think we were just adding to the theatre of it. Um she wasn’t crying like crying-crying, stop, stop, like that. It was more like she wanted - I don’t know, this is so weird. Like this looks bad on me. Um I don’t know how to explain it. It’s, she wasn’t, she, not crying like sobbing her eyes out and saying stop like as if I’m doing it against her will, it was just more like we were just going so hard that you know she felt a little prob, maybe she might’ve felt a little bit of pain, I don’t know. But um yeah, I, I don’t know, I don’t know how to answer that question. Um - - -

…

Q 600 What do you mean?

A Like we were just having intercourse pretty, I don’t know, like aggressively. Like it was a, you know, she’s holding onto me, I was holding onto her sort of ordeal. Um and yeah like she told me to slap her couple of times and you know I did. I don’t think it was that hard but - - -”

144. In light of the relevant contextual evidence led at the trial, the potential unreliability of the applicant’s “elemental” admissions in the second pretext call was capable of being rationally assessed by a jury, as explained by Stern JA. In one sense, at the point where the complainant asked the applicant “Did I say red?”, there was no answer to give other than an affirmative one (with the additional flourish of how little he cared), unless the apparent excitement between the two was to be immediately deflated. In the context of their relationship, this was not a shocking or revolting thing to say even though in their real life interactions compliance with this safe word was vital. The evidence before the Court at trial readily allowed the jury to assess the alternative explanation provided by the applicant. On the face of the transcript, however, I find implausible the applicant’s evidence at trial that this was all simply phone sex, rather than referable in any way to what occurred on 31 August 2022.

145. As recorded by Stern JA above at [81], one aspect of unfairness argued in support of ground 1 was what was said to be the requirement for the sexual history of the applicant and the complainant to be revealed, this being prejudicial. I agree with her Honour’s statement at [86] that this was already a feature of the evidence. It was necessarily a feature of the evidence, and I do not accept the submission advanced in writing for the applicant that the admission of the second pretext call unfairly enlarged the necessary scope of the evidence to cause prejudice at trial. During the argument on the voir dire, defence counsel did at one point state that the pending argument pursuant to s 294CB of the Criminal Procedure Act 1986 (NSW) would no longer arise if the second pretext call was excluded, but this was not correct. Contrary to the applicant’s submission, the Crown did not identify explanation of the traffic light system as the only exception to defence counsel’s suggestion. Rather, the Crown, agreeing with the trial judge’s response that the whole context in which the breach of the agreed traffic light system occurred seemed to require evidence of their relationship, stated that the evidence of the traffic light system implied prior sexual experience.

146. There were many features of the trial apart from the second pretext call which required the nature of the sexual relationship to be made plain. The most obvious was what the code words meant and why they had been prearranged. However the consensual non-consensual foundation of their sexual desires was fundamental to other aspects of the trial as well. There was no suggestion at trial or on appeal that the messages on 31 August 2022 in preparation for the meeting, referred to by Stern JA at [24], were not admissible. The fairness of the accused’s trial plainly required the jury to have an understanding of the rape fantasy talk and conduct the two had engaged in prior to that time to understand these text messages. There is no other way the jury could have fairly assessed the applicant’s communications in the immediate lead up to their meeting that he was going to: punish her hard, be a real estate agent who rapes her as a young girl sent by her mother because he is a friend of her father’s, and that he would be as rough as he wanted, without understanding their apparent mutual pleasure from these fantasies.

147. I am further of the view that the aspects of the first pretext call that were probative of the Crown case also required explanation of the nature of the participants’ sexual relationship. To understand the prospect of the applicant having gone “overboard” and been “too much”, and offering to “take it down a notch or two”, as potentially supporting the complainant’s account, the closeness between their preferred sexual practice and the crime of sexual assault (despite the fundamental difference arising from existence or absence of actual consent) needed to be made plain. The prospect of the applicant subjectively viewing what occurred on 31 August 2022 as close to what the complainant wanted (but recognising it had crossed an inappropriate line) is consistent with these statements, as well as them engaging in small talk after sexual intercourse on 31 August 2022, and his apparent surprise that she disconnected contact with him so sharply thereafter. The admissions in the applicant’s ERISP also required understanding the nature of the sexual relationship.

148. Relatedly, I am not of the view that there was a prejudicial vacuum as to the complainant’s reciprocal interest in consensual non-consensual sexual intercourse. The aspect of the unfairness complaint addressed by Stern JA above at [81] as the second complaint, detailed further at [84], was a significant focus of the applicant’s oral submissions. Despite the early messages not having been retained, the complainant spoke of their discussions as to rape fantasy and the traffic light system in a way that gave no suggestion that this was at the urging of the applicant. His unchallenged account to police and in Court was that this system was introduced to him by the complainant, and the complainant agreed with this.

149. It is clear that the conversation outlined by Stern JA above at [42] was based on the events as they occurred on 10 August 2022, but expressed in a way that was arousing to him and a way that (from the complainant’s conduct prior to 31 August 2022) he would have expected to be arousing to her. One submission advanced at the hearing was that this extract was not referable to a particular incident, and not reflective of what happened on 10 August 2022. The lead up to the part of the conversation quoted by Stern JA at [42] makes clear that they were speaking about the first occasion (of penile-vaginal intercourse) when the complainant came to the applicant’s house and they were on a bed. The complainant gave repeated, consistent answers that this passage related to the events of 10 August 2022 and was not fantasy. The applicant agreed that this part of the conversation related to that occasion.

150. The evidence is clear that the sexual activity on 10 August 2022 was rough, but in fact consensual. Both the complainant and applicant gave evidence that the word “red” was used and complied with. The complainant gave evidence at trial that she was bruised after the sexual activity on 10 August. Text messages exchanged on 14 August 2022 include the applicant checking the complainant had been bruised by him, and when she said she had, he said “Good”, and referred to having her over again.

151. When at about this time the applicant raised the possibility of a threesome the complainant indicated that although she can “push one guy away”, she would not be able to push two away. He raised in graphic terms different scenarios by which they would “rape” her, to which she was responsive, and after which she continued to communicate with and be prepared to see him. In text messages between 14 and 31 August 2022, the complainant expressed sexual gratification from the applicant’s messages indicating that he wanted the next time to tie her down properly so she could not fight back, and when he explained in further detail how he would use her this way “like an object”, she said “hmm I’m your object daddy”. They often referred with apparent mutual approval to him using her, and whether she would “fight back”. On occasion during the messages between 14 and 31 August 2022, the applicant made reference to aspects of what had occurred on 10 August 2022 in very similar terms to those in the second pretext call set out in the judgment of Stern JA at [42]. He also said “I want u to look at the bite marks and bruises and think of me”. There was no suggestion on the totality of the evidence, including the complainant’s oral evidence, that the particular types of fantasy engaged in were in any way one sided.

152. A number of the issues I have just addressed are more important than the aspect of the unfairness argument in support of ground 1 that has troubled me the most – concern as to the extent of the invasion of privacy and the particular deception involved. Had the listening device(s) been placed not near the complainant while she spoke to the applicant on the telephone, but in the hotel room at which they were purportedly planning to meet, and he gave the answers given while not only being aroused by their conversation but by visual and tactile stimulation from her, and physical sexual activity, there could have been a stronger argument that admission of an audio recording of their interaction in the applicant’s trial would support only a conviction “bought at a price which is unacceptable, having regard to contemporary community standards”: R v Swaffield at [69] (Toohey, Gaudron and Gummow JJ). This could arguably be a matter to take into account with other issues raised, such as the prospect of unreliability, requiring exclusion under s 90. Putting aside potential qualitative differences such as whether the applicant in such a scenario would not be consenting to sexual activity because his participation resulted from fraudulent inducement, and the obligations of police administering the use of surveillance devices to contain the extent of interference with privacy, such situation may be viewed as different only in degree from that which occurred in this matter in the second pretext call. However for the reasons given by Stern JA at [77(6)] the use of s 90 in such a situation is not clear. It could more appropriately be viewed as warranting exclusion for having been improperly obtained, and the boundary of the potential operation of s 90 in such a situation does not require resolution in this case.

153. In the orthodox range of pretext telephone calls used in sexual assault proceedings, the deception and invasion of privacy may involve intrusion into very significant emotional depths. Particularly where estranged family members are recorded conversing, with one deceiving the other, many years of love, grief, regret and shame may inform the private nature of their conversation.

154. Although I regard this case as a difficult one, I am satisfied that the correct answer to whether it was unfair to admit the second pretext call in the applicant’s trial is that it was not. People whose sexual preference is as the complainant described hers or one of hers to be can obviously be sexually assaulted. Admissions to that crime in that context may be expressed differently to an admission of a sexual assault in the context of a different relationship. Contemplating that the complainant was sexually assaulted, as has been found to be so by a jury, the interference with her privacy in the evidence necessary to be revealed at trial was very significant. There was fulsome context for the jury to understand the potential for unreliability, and this contextual evidence was in most material respects otherwise required to be before the Court.

155. There are many types of further directions which may have been given to the jury to provide additional protection for the fairness of the trial of the applicant. Ground 2 is expressed in general terms. However its focus was limited to the second pretext telephone call; although, as counsel for the applicant indicated in the course of oral submissions, not only the part of it set out at paragraph [42] of Stern JA’s judgment. The reality is that there were many aspects of the evidence that raised the same issue – the applicant’s arousal by “using” or “raping” the complainant. Any anti-tendency direction would have needed to address all of this evidence, a point which was not squarely argued on appeal. I agree with Stern JA that forensic reasons existed for not seeking additional focus on the applicant’s sexual desires by way of such a direction, in the context of this trial.

156. I do regard the Crown as having relied upon the applicant’s statements of feeling guilty as evidence of guilt, unlike the credibility use of alleged untruths in Zoneff. However for the reasons explained by Stern JA, the directions provided were adequate to bring to the jury’s attention the need to consider the alternative explanation given by the applicant for making these statements. As explained by her Honour, nominating other potential reasons arising from the terms of the pretext calls themselves carried risks of undermining the credibility of the applicant and the way in which he and his counsel chose to deal with this issue.

157. For these reasons, additionally to those given by her Honour, I agree with the orders her Honour has proposed.

158. E****MMETT J: I agree with the orders proposed by Stern JA. I agree with her Honour’s reasons and with the additional reasons of Rigg J. I have conducted my own review of the evidence and am satisfied that it was open to the jury to find the applicant guilty beyond reasonable doubt.

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