Arnold (a pseudonym) v Snelleksz [2025] ACTSC 548

Background

3. As the appellant did not cavil with the factual background summarised in the respondent’s outline of submissions, I have largely adopted that summary.

4. The appellant was charged with two counts of committing an act of indecency without consent arising out of events which occurred in the early hours of 17 August 2023. The appellant and the complainant were previously unknown to each other. Together with other university students, they had come to Canberra for a university soccer competition. On 16 August 2023, the complainant and the appellant were among a group of students who went out drinking in the Belconnen area. They attended a karaoke bar called K Bar late in the evening.

5. While at K Bar, the prosecution alleged that the appellant kissed the complainant in a hallway without her consent. That allegation was relied upon for the first count (the hallway incident). The prosecution alleged that the appellant then pulled down the complainant’s underwear and pants and bent over her while in a male bathroom without her consent. This conduct was relied upon as the subject of the second count (the bathroom incident).

6. The prosecution case was that the complainant did not consent to either act, or to the extent that there was any apparent consent, that the complainant did not consent to the acts by reason of her intoxication and the appellant was reckless as to that fact.

7. The matter proceeded to trial between 12 and 14 November 2024. A number of other witnesses that were at K Bar that night were called. The appellant did not give evidence.

8. There was no real dispute at the hearing that the acts which were the subject of the charges occurred. The appellant submitted that the complainant consented to the acts, or, if she did not, the appellant was not reckless as to that fact.

9. The Magistrate delivered his decision on 2 1 January 2025, acquitting the appellant of the first count and convicting the appellant on the second count.

10. There was no complaint about the directions of law which the Magistrate gave himself. His Honour found that all of the witnesses, including the complainant, were honest. As to the first incident, the Magistrate found that although it was very unlikely that the complainant verbally consented to being kissed by the appellant or that she was enjoying herself, the evidence demonstrated that she did kiss the appellant back, although minimally. While the Magistrate acknowledged that her actions need to be understood in the context of the circumstances which existed, namely that she was significantly intoxicated, she was against a wall with the appellant holding onto her and in a position of control, his Honour was not satisfied beyond a reasonable doubt that the complainant’s action in kissing the appellant in the hallway did not amount to agreement by conduct.

11. In respect of the second incident, the Magistrate found that like the hallway incident, the appellant was the initiating party, that he locked the door and pushed the complainant against the wall and kissed her. His Honour found that he pulled the complainant’s underwear and pants down and pushed her so that she was bending over. His Honour concluded at [126]-[128]: 126. In all the circumstances, it is not a realistic possibility that the Complainant gave the [appellant] verbal consent for him to pull down her pants and underwear and bend her over, nor that she did anything to communicate her consent. 127. She was not attracted to the [appellant] and did not want him to kiss her. She did not enjoy being kissed by him. She did not want to be in the men’s bathroom, but had been led there by the [appellant]. She was significantly intoxicated and needed assistance to walk. She did not fully understand what was going on. The [appellant] had pulled her pants and underwear down and bent her over. 128. It is one thing for the Complainant to have reciprocated the [appellant’s] kisses to some extent in the hallway (outside the karaoke room and the men’s bathroom), particularly given the state she was in, but the [appellant’s] actions in the bathroom were another thing entirely. It was a sexual act of a materially different character.

12. His Honour then reasoned that it was clear that the appellant and not the complainant, had displaced the menstrual cup. 132. It is clear that it was the [appellant], and not the Complainant, who displaced the menstrual cup. The Complainant understood how the cup worked and she would not have accidentally displaced it. If the Complainant had wanted to remove the cup, she would have done so. 133. Further, given the function of the menstrual cup, the Complainant would not have broken the seal and simply left it displaced at an angle. Nor is there any prospect that she would have been content for the [appellant] to do so. 134. I am fortified in my view that the [appellant] pulled the Complainant’s pants and underwear down, and bent her over, without her agreement or assistance, by the fact that it is clear that he engaged in some other act without her agreement or assistance, shortly thereafter, which resulted in the Complainant’s menstrual cup being displaced.

13. The Magistrate accepted the complainant’s evidence that she did not consent and found himself satisfied beyond reasonable doubt that the complainant did not do or say anything to communicate any agreement to the appellant engaging in the relevant act and that there was an absence of consent.

14. In light of that conclusion, although it was not necessary to consider the issue of the complainant’s intoxication in respect of the bathroom incident, the Magistrate nevertheless concluded that because of her level of intoxication during the bathroom incident, that she was unable to consent at that time.

15. In respect of the issue of the appellant’s recklessness, his Honour found at [178]-[181]: 178. I have found that the Complainant did not do or say anything to indicate that she consented to the [appellant] pulling her pants and underwear down and bending her over. The [appellant] thus knew that he performed those acts without the Complainant’s consent. 179. The [appellant] could not assume, from the fact that the Complainant went into the bathroom with him, that she consented to the acts he performed on her in there. She did not want to be in the men’s bathroom and it was the [appellant] who led her into the bathroom with him. 180. Even if the Complainant had agreed to go into the bathroom with the [appellant], it does not follow that she consented to whatever sexual acts the [appellant] wanted to perform in there. 181. Nor could the [appellant] assume that, because the Complainant kissed him back to some extent in the hallway, she consented to a different sexual act in the men’s bathroom (s 67(2)).

16. With respect to whether the appellant was reckless to whether the complainant was incapable of consenting by reason of intoxication, the Magistrate concluded that the appellant must have realised that the complainant was significantly intoxicated and that the effect of her intoxication was so great that she was incapable of freely and voluntarily agreeing to the acts in the bathroom. Jurisdiction

17. This appeal is brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT). Section 214(2) of that Act requires this court to have regard to the evidence given in the proceedings below and draw any inferences of fact. Section 218 of that Act empowers this court to confirm, reverse or vary the decision or to give the judgment or order which it considers appropriate.

18. The nature of this appeal is by way of rehearing.

19. As the Court of Appeal in Alexander v Bakes [2023] ACTCA 49 observed, it must always be borne in mind that the appeal is a process for the correction of error and the onus is on the appellant to demonstrate some legal, discretionary or factual error. In determining whether the appellant has discharged that onus in demonstrating legal, discretionary or factual error, this Court must observe the natural limitations of proceeding on the record, including the Magistrate’s advantage in hearing and seeing witnesses give evidence and the feeling of the case which the appellate court, when reviewing the transcript, cannot always fully share.

The grounds of appeal

20. The appellant filed an amended notice of appeal on 25 February 2025 which contained 15 grounds of appeal, complaining of various factual and legal errors said to have been made by the Magistrate in reaching his verdict of guilty on count two. The grounds are: (a) The learned magistrate erred in finding the appellant guilty of CC2023/9996; (b) The learned magistrate erred in finding the complainant did not consent to the acts the subject of CC2023/9996; (c) The learned magistrate erred in finding the complainant was incapable of providing consent to the acts the subject of CC2023/9996; (d) The learned magistrate erred in finding the appellant was reckless as to the complainant’s consent; (e) The learned magistrate erred in finding the appellant led the complainant into the male bathroom; (f) The learned magistrate erred in finding the appellant led the complainant into the lockable room within the bathroom; (g) The learned magistrate erred in finding the complainant was not steady on her feet at the time of the bathroom incident; (h) The learned magistrate erred in finding the complainant’s eyes were pretty much closed at the time of the bathroom incident; (i) The learned magistrate erred in finding the appellant had pulled down the complainant’s pants and underwear; (j) The learned magistrate erred in finding the complainant did not assist the appellant to pull her pants or underwear down; (k) The learned magistrate erred in finding the appellant engaged in some act resulting in the complainant’s menstrual cup being displaced; (l) The learned magistrate erred in finding the complainant was not attracted to the appellant and did not enjoy being kissed by him on the night of the alleged offence; (m) [T]he learned magistrate denied the appellant procedural fairness by finding the complainant’s concession that she could not exclude the possibility that she wanted the appellant to touch her was not a ‘realistic possibility’; (n) [T]he learned magistrate denied the appellant procedural fairness by finding the appellant had displaced the complainant’s menstrual cup; and (o) [T]he learned Magistrate erred in taking into account an irrelevant consideration, namely the displacement of the menstrual cup.

21. Upon the hearing before me on 19 September 2025, both counsel accepted that the gravamen of this appeal is that the verdict on the second count is unreasonable and unsupported by the evidence.

22. The grounds set out in 4(b) to (l) are properly characterised as particulars of the ground in (a) that the verdict is unreasonable.

23. The remaining grounds (m) to (o) are various complaints that the appellant was denied procedural fairness and that the Magistrate took into account an irrelevant consideration.

24. As grounds (k), (n) and (o) are related, I shall deal with them compendiously.

Grounds (k), (n) and (o)

25. The appellant submitted that the Magistrate fell into error by finding that the appellant engaged in some act resulting in the complainant’s menstrual cup being displaced and then denied the appellant procedural fairness by finding that the appellant had displaced the complainant’s menstrual cup, which was an irrelevant consideration.

26. The Magistrate’s findings about this are set out at [132]-[134], which I have previously cited at [12] herein, together with [157] as follows: 157. As I have noted earlier in these reasons, the Complainant’s menstrual cup was partially displaced during the bathroom incident. It seems highly unlikely that the Complainant would consciously permit that to occur.

27. The appellant submitted that the displacement of the menstrual cup was not relevant to any fact in issue as it was not the prosecution case that penetration occurred. Further, the appellant submitted there was no evidence adduced as to how a menstrual cup may be removed and, in the absence of expert evidence specific to how a menstrual cup may be displaced, the evidence should not have been admitted. Further, because the concession was made by the prosecution that this evidence was not relied on, it was unfair of the Magistrate to then rely on it.

Consideration

28. At the outset, it is important to understand the context in which this evidence was led.

29. The complainant in evidence said that, when she had woken up, she described feeling herself bleeding as she had her period. She had inserted the menstrual cup the night before and thought the fact that she was bleeding was odd. She went to the bathroom and noticed that her menstrual cup had been displaced but she did not recall going to the bathroom and changing it during the night. She gave evidence that “it takes, like, kind of, like, pressure to get it out, because it creates, like, a seal. Um, so I thought that was a bit strange.” The complainant explained that the menstrual cup sits at a very specific angle about 2.5 inches into the vagina. She said that it is necessary to insert fingers to touch it and the last time she had touched the menstrual cup was before she had left the Lighthouse Pub the night before. The complainant also said she experienced pain urinating the day after the incident.

30. At trial, there was no objection to this evidence being led and there was no cross-examination of the complainant about whether it would be possible for the cup to be displaced by other means. That is not surprising, given the prosecution concession that there was no allegation in the matter that penetration had occurred.

31. When the Magistrate questioned the prosecutor during submissions about what to make of that evidence, the prosecutor said: HIS HONOUR: Before you go there, I know that the second act is particularised in a particular way. Do I need to, and again I suspect I can, as I said, drawing you forward from what you have already prepared, do I need to concern myself with what else might have occurred in the room, whatever room it was? Her evidence about the menstrual cup - - - CUTHEL: I'm not concerned about – there's no evidence of penetration. HIS HONOUR: No. MS CUTHEL: We are not suggesting that there was penetration. I think that's just part of the evidence in a similar way that perhaps, you know, clothing may be disturbed or something like that that can be taken. I don't think we can take that any further than what it is and I don't intend to rely upon it in any other way.

32. There was no other reference to the evidence about the menstrual cup except an oblique reference by counsel then acting for the appellant during submissions, in which she implicitly acknowledged that the menstrual cup had been displaced. She said: This was a matter that might have looked in the beginning to be a Supreme Court jury trial because there was evidence of the menstrual cup being displaced and no forensics evidence had been gathered yet …

33. The appellant’s submissions on these grounds are misconceived. In the first place, there was evidence from the complainant herself about how the menstrual cup can be moved or displaced. Expert evidence is not required to explain that. Women who use menstrual cups are best placed to give that kind of evidence, and the complainant did.

34. Even though the prosecution was not alleging that penetration occurred, the prosecutor made it clear in her exchange with the Magistrate that it was relied on as part of the evidence in a similar way as to evidence of how clothing may have been disturbed. Moreover, the appellant’s defence was not that nothing had happened in the bathroom but that whatever did happen between the appellant and the complainant was consensual.

35. Accordingly, the evidence was both probative and relevant as to the circumstances in which the indecent assault in the toilet cubicle occurred.

36. The Magistrate was entitled to use it in the way he did in reasoning to the conclusion that something untoward had happened in the toilet. The finding that it was the appellant who displaced it was plainly open, and to suggest that the complainant moved it herself in all of the circumstances, defies common sense.

37. These grounds are not made out.

Grounds (a) to (d)

38. The Magistrate accepted that, in accordance with the provisions of s 50B of the Crimes Act, the complainant’s affirmative consent was required. Further, the prosecution must prove that there was not affirmative consent. There was no issue about the directions the Magistrate gave himself.

39. As I have noted earlier in these reasons, the Magistrate’s findings about the complainant’s level of intoxication at the time of the kissing incident the subject of count 1 was such that he was unable to conclude beyond reasonable doubt that she was incapable of agreeing. However, his Honour was satisfied that the complainant was unable to consent at the time of the incident subject of count 2.

40. The appellant submitted that these findings are incongruent given the close temporal proximity between the two incidents. The appellant submitted that the evidence did not support a finding that the appellant did not consent to the bathroom acts and that she was incapable of providing consent at that time.

41. There was a further complaint that the Magistrate’s finding that the appellant was reckless as to the complainant’s consent during the bathroom incident was not open because of her behaviour during the kissing incident.

42. The appellant submitted that, although the appellant might have been aware that the complainant had consumed some alcohol earlier in the evening, there was no evidence to suggest that he was with her the whole time or that he had seen the quantity she consumed.

43. Moreover, the appellant submitted that – because, during the incident in the hallway, the complainant responded quickly to a friend, Ms Rickard, who had gotten her attention, and because the complainant had conceded in cross-examination that there may have been conversations with the appellant during the evening she could not now recall – there remained a reasonable possibility that the complainant was not so obviously intoxicated that the appellant should have realised that she was incapable of consenting or had not consented.

44. This is particularly so, the appellant submitted, because there are significant gaps in the complainant’s recollection of the events. The only evidence of the complainant being unsteady on her feet came after the interaction in the bathroom. In these circumstances, the prosecution was unable to prove that there was not affirmative consent or that the appellant was reckless.

Consideration

45. The evidence of other witnesses called at the trial established that the complainant was very intoxicated. Ms Rickard, who was the least intoxicated of the group, observed the complainant swaying and, when the complainant sat down after the kissing incident, she sat in an uncontrolled manner, slurred her speech and appeared confused.

46. Mr Craig described the complainant as the most intoxicated in the group and that she appeared “out of it” and less in control. Other witnesses gave evidence that, when the complainant left the bathroom, her eyes were not fully open, she was drowsy and was being assisted walking down the hallway.

47. It can be accepted that, given the Magistrate’s finding that the complainant’s level of intoxication was likely to have been similar at the time of both incidents, it is, as the prosecution submitted, somewhat surprising that he recorded a verdict of acquittal in respect of the first count. However, I acknowledge there was some evidence to support his Honour’s finding that it is possible that there was a decline in the complainant’s level of mental and physical functioning between the hallway incident and the bathroom incident, particularly in relation to her capacity to walk.

48. I am mindful that this is not an appeal against the verdict of acquittal, nor could there be. This is an appeal by way of rehearing in respect of the verdict of guilty on count 2. My task is to review and determine whether on the whole of the evidence it was open to the Magistrate to convict the appellant of count 2.

49. Having reviewed the whole of the evidence including watching the CCTV footage tendered at the trial, my own conclusion is that the evidence supports a finding that the complainant was too intoxicated to consent to either the kiss in the hallway or the touching in the bathroom.

50. I would add for the sake of completeness that there was with respect to the first count, a rational basis for the verdict of acquittal, albeit not one which the Magistrate seems to have adopted, and that is in light of the complainant’s conduct during the kissing incident, the appellant may not have possessed the requisite intent (recklessness) in respect of the first count. However, the bathroom incident, as the Magistrate observed, was an act of a completely different character.

51. For these reasons I do not consider there is any merit in any of the grounds (a) to (d).

Grounds (e) to (l)

52. Each of these grounds allege various errors of fact said to have been made by the Magistrate in the course of reasoning to guilt on the second count.

53. It was said that the Magistrate made errors by finding that the complainant was led into the bathroom by the appellant and then led into the lockable room inside the bathroom; by finding that the complainant was not steady on her feet at the time of count 2; and by finding that her eyes were “pretty much closed” at the time of the bathroom incident.

54. My review of the transcript reveals that there was in fact direct evidence from both the complainant and a number of the other witnesses to support each of those factual findings. Insofar as the findings referred to in grounds (e) and (f) were inferences drawn from the facts his Honour found proven, they were plainly open to the Magistrate. The direct evidence from Ms Rickard in particular, and the complainant herself that she was finding it difficult to balance herself in the toilet at the time when her pants were pulled down, was a sufficient basis to draw the inference that the complainant did not walk into the toilet unaided, but was led there by the appellant.

Ground (m)

55. This is a complaint that the Magistrate denied the appellant procedural fairness by finding that the complainant’s concession that she could not exclude the possibility that she wanted the appellant to touch her was not a realistic possibility.

56. This ground arises out of the cross-examination of the complainant when she was asked if it was possible that she consented to various acts or if it was possible that certain things happened or were said by her: And nor can you exclude the possibility that those other interactions were positive with the [appellant]?---No, but I remember not, you know, no longer feeling - sorry. I, yes, I confirmed that there may have been positive experiences with the [appellant]. Now, I'm going to suggest to you that it was possible you wanted the [appellant] to touch you in the cubicle in the way that you dreamed but you don't remember that feeling now?---No, I don't recall that, but - sorry, can you say it again. Yes. It is possible that you wanted him to touch you in the cubicle in the way that you dreamed and you simply don't remember it today?---I don't believe that that's what I wanted. You don't believe but you can't exclude that as a possibility, correct?---No, I can't.

57. The Magistrate’s finding in relation to that was as follows (at [116]): While the Complainant gave evidence that she could not exclude the possibility that she wanted the [appellant] to touch her and simply did not remember having that feeling, she also said that she did not believe that it was possible that she wanted that to occur. In my view, her concession that she could not exclude the possibility simply reflected the fact that her memory of the incident was not complete, and was not a concession that it was a realistic possibility.

58. The appellant submits that the Magistrate should have permitted the parties to clarify the answers the complainant gave in that passage of cross-examination before finding that the concession made in that passage reflected a lack of memory and was not in fact a concession that it was a reasonable possibility.

59. The Magistrate made that finding in the context of a lengthy discussion about the defence case in which he acknowledged and plainly understood that it was the defence case that the complainant’s evidence in those passages left open the reasonable possibility that she consented to the touching.

60. In the course of canvassing the evidence, the Magistrate referred to all of the other evidence of the observations of other witnesses as well as to the complainant’s evidence.

61. It is apparent that his Honour was well aware that the thrust of the defence case was that the complainant’s memory was incomplete and that, given her behaviour in the hallway during the kissing incident, the prosecution could not prove beyond reasonable doubt that the complainant did not consent.

62. The Magistrate repeated his conclusion on this topic at [124]-[126] of the judgment: As noted in relation to the hallway incident, while the Complainant gave evidence that she could not exclude the possibility that she wanted the [appellant] to touch her and simply did not remember having that feeling, she also said that she did not believe that it was possible that she wanted that to occur. As I found above, her concession that she could not exclude the possibility simply reflected the fact that her memory of the incident was not complete, and was not a concession that it was a realistic possibility. She was not attracted to the [appellant] and had not enjoyed him kissing her in the hallway. Around that time in her life she realised that she was only attracted to women. Like the hallway incident, the [appellant] was the initiating party. He led her into the men’s bathroom and into the lockable room within the bathroom. He locked the door and pushed her against the wall and kissed her. He pulled her pants and underwear down and pushed her down so that she was bending over. The Complainant was significantly intoxicated and did not fully understand what was going on. She did not know what to do and felt that everything was happening quickly. Again, the [appellant] was in control. In all the circumstances, it is not a realistic possibility that the Complainant gave the [appellant] verbal consent for him to pull down her pants and underwear and bend her over, nor that she did anything to communicate her consent.

63. In the course of concluding that it was not a realistic possibility, the Magistrate took into account the complainant’s own evidence that she did not enjoy the kissing, that she was at that time attracted to women, and the evidence of the other witnesses who observed the interactions between the appellant and the complainant immediately before the bathroom incident and immediately after.

64. In my view, the Magistrate was not under any obligation to give the appellant notice in advance of the rejection of the submissions on that topic.

Conclusion

65. Having completed my own independent review of the evidence, I am satisfied that each ground of appeal should be dismissed.

66. The Magistrate’s reasons as a whole were thorough, detailed and considered. The complainant’s evidence as to the critical aspects of the events that night were supported by the observations of the other witnesses present during some of those events, in particular the evidence of Ms Rickard.

67. The evidence led to support the conviction in respect of count 2 was in the end overwhelming. Order

68. The order of the Court is: (1) The appeal is dismissed.

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: