Bargero v R

JUDGMENT

1. KIRK JA: I agree with the orders proposed by Rothman J for the reasons his Honour gives together with the additional reasons given by N Adams J.
2. ROTHMAN J: The applicant, Marc Bargero seeks leave to appeal and/or to appeal his conviction which resulted from a judge alone trial in the District Court for three offences. On 10 March 2022, the applicant was convicted of two offences.
3. The applicant was sentenced to an aggregate term of imprisonment of 3 years, with an 18-month non-parole period and will first become eligible for parole on 24 February 2024. There is no appeal against the sentence.
4. The offences with which the applicant was charged and for which he was tried were: Count Verdict Offence Indictment 1 Guilty On or about 6 June 2020 did have aggravated sexual intercourse without consent (person under the age of 16 years) (s 61J(1) of the Crimes Act 1900 (NSW)) 2 Not guilty On or about 6 June 2020 did intentionally sexually touch a child above the age of 10 and under the age of 16 (s 66DB(a) of the Crimes Act 1900 (NSW)) 3 Guilty On or about 6 June 2020 did intentionally sexually touch a child above the age of 10 and under the age of 16 (s 66DB(a) of the Crimes Act 1900 (NSW))

1. Because of the age of the alleged victim (in these reasons and at trial referred to by the pseudonym "GC"), legislation provides that she may not be identified, and any matter tending to identify the complainant may not be published.
2. The Crown case was that on 6 June 2020 the complainant was staying at a friend's house for the evening. The complainant had arrived at the house after spending time with friends in the Chatswood area, having consumed about seven standard drinks. GC was 15 years of age at the time.
3. Because of her intoxication, GC fell asleep on the floor of the premises and was moved onto the couch. The applicant, sometime after the complainant was moved to the couch, carried GC upstairs and put her to bed. The applicant was, at the time, 51 years of age.
4. Thereafter, the versions of events from the complainant and from the applicant are different. The complainant said that she awoke to the applicant removing her pants and underwear. The applicant kissed down her stomach area and then performed oral sex upon her. The complainant looked up, expecting to see another young person, and instead saw the applicant. She then pulled up her pants and ran downstairs. The complainant immediately told those present that she had awoken to the applicant performing oral sex upon her.
5. There were two electronically recorded interviews (ERISP) in which the applicant participated. In each of them the applicant did not admit that he had performed any of these acts, but he did admit that, in a drunken state, he had placed his face near the complainant's crotch in order to smell that area. This apparently gave him some kind of sexual gratification, related to his first or one of his first sexual experiences.
6. The applicant did not give sworn evidence at trial, but the version given during the ERISPs accorded with SMS messages he sent to another adult who had been present in the house at the relevant time, and in a recorded telephone conversation with Pamela McClelland.
7. At the trial, evidence was given by witnesses present at the house who agreed that the complainant had made an immediate complaint of oral sex, which the applicant was heard denying. Police attended the premises that evening.
8. Expert evidence was provided by a forensic toxicologist who assessed the applicant's blood alcohol level and concluded that he would have been intoxicated, but not experiencing loss of consciousness at the time of the alleged offending. DNA evidence was also admitted.
9. In his reasons for judgment on verdict, Gartelmann SC DCJ accepted the complainant as a credible witness and stated that he found her evidence compelling. His Honour did not find that she was sufficiently intoxicated to the point that she would have false memories of the offences. His Honour also found that the immediate complaints supported the complainant's evidence.
10. On the other hand, his Honour did not find the applicant's evidence to be convincing. His Honour noted that the applicant's interviews to police amounted to no more than him not "thinking" that he committed the offences, rather than a denial of conduct that amounted to the offences.
11. The learned trial judge considered that the applicant's intoxication was such that he did not recall what he did, which left open the possibility that he had performed the acts and not remembered doing so. His Honour preferred the unequivocal evidence of the complainant. His Honour found the applicant not guilty of Count 2, an offence relating the cuddling of the complainant, on the basis that the complainant did not give evidence that would support such an allegation or charge.
12. The applicant raised three grounds of appeal: Ground 1: The trial miscarried as a result of the findings made by the learned trial judge in relation to the applicant's version of events and its overall impact on proof of the prosecution case; Ground 2: The learned trial judge failed to comply with the requirements of s 133 of the Criminal Procedure Act 1986 (NSW), to disclose adequate reasons in relation to the applicant's version, including application of the Liberato direction and other applicable directions about the applicant's out-of-court statements. Ground 3: The verdicts are unreasonable.
13. In the course of oral submissions, counsel for the applicant made clear that the ground of appeal relating to an unreasonable verdict depended on some part of the allegations relating to Grounds 1 and 2 being accepted by the Court. In other words, Ground 3 did not stand alone from the issues raised in relation to Grounds 1 or 2, although it may arise even though neither Ground 1 nor Ground 2 is made out to the point of error.
14. Further, the Court noted in the course of oral submissions that Grounds 1 and 2 are, in most respects, aspects of the same error relating to the manner in which the trial judge treated the applicant's version of events to find guilt, or failed to deal with that version of events properly in the reasons for judgment.
15. The Crown has, in accordance with the usual practice, provided the Court and the parties with a summary of the trial, with which summary neither party has taken issue. It is unnecessary, at this point, to deal more fully with the facts outlined above, but some of them will be the subject of comment during the course of these reasons.

Ground 1: Not giving sufficient treatment to applicant's denial

1. The applicant submits that it was necessary for the trial judge to "categorically reject the applicant's version before it was open to his Honour to find the accused guilty". The applicant submits that the trial judge did not categorically reject the applicant's account and, therefore, the verdict was based on the fact that the applicant was an unreliable witness due to intoxication or bad memory alone. The applicant submitted that the trial judge did not engage with the comments made by the applicant during the ERISPs which, on the submission, the applicant says were categorical denials of the offending.
2. The applicant's submissions concede that his Honour did ask the defence whether the applicant had categorically denied the offending in the ERISPs that were adduced during the course of the trial. Defence counsel responded that the applicant in the ERISPs appeared to be confirming that the allegation put to him was not one that he accepted.
3. As such, the applicant submits that the trial judge's approach to the applicant's statements was incorrect in that: 1. It was not reasonably open for the trial judge to characterise the applicant's statements as anything other than complete denial; 2. There was a failure properly to address the evidence contrary to that position; and 3. There was a failure to apply legal principles surrounding the applicant's version of events including the permissible process of drawing inferences flowing from a conclusion that certain statements were not complete denials.
4. Further, the applicant submits that the denials he made in statements made other than during the course of the ERISPs were not taken into account by the trial judge. It was wrong, according to the submission, for the trial judge to conclude that the statements of the applicant need not be addressed as a deliberate fabrication because of the version that maintained the applicant "did not think he did the act".
5. In particular, the applicant submitted that the text messages in which he denied going further than "sniffing" the complainant expressed denial and that the trial judge did not address this issue properly or adequately. Moreover, the trial judge did not refer to the express denial made at the scene on the night that these events occurred.
6. The applicant also submits that the evidence of those in the house on the night of the incident, to which earlier reference has been made, was that when the complainant made an immediate complaint, the applicant immediately denied the conduct. This, on the submission of the applicant, is at odds with the trial judge's conclusions that the applicant did not expressly deny the allegation and warranted a finding by the trial judge as to whether these statements were lies.
7. Further to the foregoing, in the course of the ERISPs, statements were made by the applicant to the effect of, "I wouldn't do that", which statements are not indicative of equivocation and are instead, on the submission, features of the applicant's language and form of expression. The applicant submitted that the trial judge should have assessed those statements in that light.
8. On balance, the applicant submits to the Court that his statements were express denials of the conduct, and his denials were not dealt with in such a way as to remove the possibility that they were true. Although in such a submission the applicant has reversed the onus, in effect, the applicant has submitted that as a consequence of express denials, the reasoning of the trial judge did not negate a reasonable possibility that the events in question did not happen.

Ground 2: Liberato

1. As earlier stated, Grounds 1 and 2 are, in some respects, different ways of expressing the same issue. The applicant submitted, in relation to Ground 2, that the Liberato direction in the judge's reasons is substantially more truncated than would be expected if it were given to a jury.
2. The applicant submits that the judge's reasons do not show which part or aspect, if any, of the applicant's account was expressly rejected by the judge. The applicant submitted that the trial judge seemed to believe the applicant's statements in the ERISP. This conclusion or belief did not lead to an acquittal and this result means that the judge was required to explain how the principle in Liberato applied in this case. It was a requirement, given the requirement to give reasons, to set out more clearly how the trial judge concluded that there was no reasonable possibility that the applicant's denials were true.
3. This description of the test, while, in most circumstances is no different to that which was required by the law, misstates it. The trial judge was not required to conclude that there was "no reasonable possibility that the applicant's denials were true", but the lower standard that there was no reasonable possibility that the complainant's allegations were untrue or mistaken.
4. The submission of the applicant seeks to explain the statements of equivocation and lack of recall in the ERISPs as possibly part of the conversational style or uncomfortable state of mind of the applicant at the time of the interviews. The applicant, in that respect, referred, for example, to statements such as "I would never" to refer to things which plainly did not happen and were not alleged, such as "I would never have raped her".
5. The applicant has submitted that the judge's focus on those equivocal statements in the ERISPs led to the judge not dealing directly with his overall version which incorporated categorical denials. The applicant submitted that there is an evident lack of direction, warning, or analysis of these aspects in the judgment and an overall lack of proper engagement in the applicant's version of events.

Ground 3: Unreasonable Verdict

1. As earlier noted, the applicant made clear, during the course of oral submissions, that if no aspect of Grounds 1 or 2 were accepted, then Ground 3, the unreasonable verdict, falls away. The concession, if it be a concession, is appropriate.
2. It is not suggested that, if there were no error in the manner in which the judge dealt with the complainant's version of events as against the statements by the applicant, there would be any reasonable doubt. In his submissions, the applicant accepted that it was open for the trial judge to find that the complainant was honest but submitted that the applicant's denials (assuming, for present purposes that the Court were to find that there were denials) would be preferred.
3. In some respects, this too overstates the applicant's burden. If the Court were to accept that the applicant denied the conduct, it is not necessary for the Court to prefer his evidence to an honest complainant, it is only necessary to have a reasonable doubt that the version of events given by the complainant is an accurate statement of that which occurred.
4. If such a reasonable doubt existed in the view of the Court, then it is a doubt that the trial judge ought to have experienced and would warrant an acquittal.
5. The applicant has submitted that the complainant's demeanour was given significant weight by the trial judge and further submitted that her impressive demeanour ought not, of itself, exclude the possibility of the applicant's denials being true.
6. While the applicant was intoxicated, the applicant points out that so too was the complainant. This intoxication ought to have been taken into account by the trial judge in determining the reliability of the evidence given by the complainant.
7. The applicant points to an example that, on the night of these events, there was a suggestion that the applicant told Police that the applicant had kissed the complainant on the mouth. This allegation or suggestion was denied by the complainant in her evidence.
8. The applicant submitted that it was open for the judge to consider that there was a reasonable possibility that, in the complainant's impaired state, she mistook the applicant "sniffing" in the vicinity of her groin for an act of kissing or cunnilingus. The applicant submits that the absence of DNA evidence which would have been definitive is relevant to this ground. The applicant does not explain how such a "mistake" is consistent with the description by the complainant of the precise feeling, including distinguishing between use of the mouth and the tongue.

Reasons for Judgment of Trial Judge

1. As earlier stated, the trial proceeded before a judge alone, in accordance with orders made before trial. As a consequence, unlike in a jury trial or a jury verdict, the trial judge was required to provide reasons for judgment and to direct himself as to the manner in which he would deal with the trial. But he does not have to explain to himself how standard directions apply, as long as, in his reasons, he applies them.
2. In accordance with that requirement, the trial judge, at the outset of his reasons, stated the principles (or some of them) to be applied in the proceedings. The learned trial judge said: "The Crown must prove the accused's guilt. The defence need prove nothing. The accused is presumed innocent unless and until the Crown proves otherwise. The Crown must prove guilt beyond reasonable doubt. This means more than a mere suspicion or even the probability of guilt. The Crown need not prove all facts but must prove the elements of the offences to this standard." [1]
3. His Honour also dealt with the drawing of inferences as part of the principles that his Honour applied in determining whether the Crown had proved guilt in the manner already described. He said: "Inferences may be drawn from direct evidence, but care is required as the standard of proof is high. Any inference must be rational and justified. Whether alternatives to it exist must be considered. An inference must be the only reasonable one in all the circumstance if it is to establish an element of an offence." [2]
4. His Honour referred to the capacity of the Court to accept witnesses in whole or in part, or reject them totally. His Honour also referred to the care that must be taken in utilising demeanour as it "may not always be a reliable indicator".
5. The remainder of the reasons for judgment apply those principles and other issues with which the learned trial judge dealt. His Honour then dealt with the manner in which the complainant gave evidence and noted that, as may be obvious from the foregoing recitation of facts, the complainant and the accused were the only persons present at the time that the alleged offences occurred.
6. Notwithstanding the foregoing statement, his Honour made clear that "the determination [the charges] are proven does not involve a choice between their accounts". He particularised that by making clear that the Crown relies on the complainant's evidence and her "evidence must prove [the charges] beyond reasonable doubt, even if the accused's account is rejected and he must be found not guilty if his account leaves a reasonable doubt about it".
7. His Honour referred to the complainant making complaints about the conduct at the scene and immediately after the alleged conduct ceased.
8. In dealing with the principles to be applied, the learned trial judge reiterated that he could draw no inference from the applicant's failure to give evidence; it is not an implied admission. Then, referring to the accounts given by the accused/applicant in interviews to Police, the trial judge noted that they must be considered along with all other evidence but the defence "need not prove their truth. The Crown must show there is no reasonable possibility of their truth insofar as it is inconsistent with his guilt of the alleged offences". [3]
9. His Honour then dealt with a short outline of the facts and the elements of the offences and then summarised the Crown case. He noted that the defence case was generally in conformity with the accused's account in the interviews and summarised the primary issues as: "whether the accused licked the complainant's vagina (Count 1); whether he cuddled her and if so whether it was sexual (Count 2); and, whether he kissed her belly (Count 3)".
10. His Honour then summarised the evidence. It is unnecessary at this point to deal with his Honour's summary.

Consideration

1. It is necessary to deal with the test for an unreasonable verdict as well as the requirements and basis for the requirements in Liberato. As has been made clear on a number of occasions, even where, as a matter of law, there is evidence to sustain a verdict, a court on appeal must examine the whole of the evidence in a trial and determine, for itself, whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. [4]
2. While the Court does not disregard the consideration that the jury, or in this case the trial judge, is entrusted with the responsibility of determining guilt and has had the benefit of seeing and hearing the witnesses, the Court must determine for itself whether there is a reasonable doubt which the jury or trier of fact ought to have experienced. [5] A doubt experienced by an appellate court ordinarily will be a doubt which a jury ought to have experienced.
3. This case really turns on the application of the Liberato direction. But Liberato is a particular application of the requirement as to burden of proof.
4. When there are different versions of events giving rise to the charges before a court between a prosecution witness (in this case the complainant) and evidence otherwise available from an accused (in this case the statements adduced that were made by the accused/applicant), it is necessary to ensure, in the case of a jury by suitable direction, and in the case of a judge alone in the approach to be taken, that the question is not answered simply by concluding which of two versions should be preferred, unless, of course, the preferred version is that of the accused.
5. It is necessary for the court, even where a complainant's version of events is preferred, that the court not convict an accused unless it is satisfied, beyond reasonable doubt, of the truth of that evidence. It is necessary for the factfinder to be satisfied positively that the version of events given by the prosecution witness, in this case the complainant, does not give rise to a reasonable doubt, in light of the denials. [6] As the joint judgment in De Silva makes clear: "The Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence. As already extracted from the reasons for judgment, the trial judge gave himself a direction to exactly the same effect as that required by Liberato. Even though the evidence adduced on behalf of the applicant was not on oath, his Honour made clear that the evidence of the complainant must prove the conduct of the applicant beyond reasonable doubt and, even if the account by the accused is rejected, the applicant must be found not guilty if his account leaves a reasonable doubt. Having given himself that direction, the trial judge analysed the evidence and the versions of evidence of the complainant and came to the view that the evidence of the complainant was both reliable and truthful and there was no reasonable doubt as to the events in question.
6. In the absence of independent evidence casting doubt on one version or another, the mere fact that there are two versions given which are opposed will not, in and of itself, give rise to a reasonable doubt, assuming, for present purposes, that the correct test is applied. Theoretically, it is always possible that a person is lying or mistaken. Alternatively, it is always possible that a person is reliable and telling the truth. The determination of truthfulness and reliability derives from just the kind of advantage that a decision maker has in seeing and hearing evidence.
7. The trial judge gave himself the correct directions and followed them. In the case of the Liberato direction, the truncated nature of the self-direction relates to two aspects. First, there is no reference to a circumstance where the accused's version (assuming a denial) is preferred. That circumstance was, in this judge alone trial, irrelevant.
8. Secondly, the truncated direction takes account of the judge's significant experience and his Honour gave effect to the full direction. The trial judge observed the evidence of the complainant and analysed it. He came to the view that the complainant was reliable and truthful and he had no doubt (or no reasonable doubt) as to the version of events given by her.
9. On the other hand, his Honour analysed the evidence of the considered statements of the applicant in each of the ERISPs. Those ERISPs make clear that when the applicant was using the words "I don't think so" or "I don't know" or "I don't recall", he was not denying the conduct. He was genuinely making clear that he could not recall and he did not think he had done so, in part at least, because he "wouldn't have done that".
10. The submission of the applicant that the denial at the scene and the terms of the text messages were not taken into account does not affect that analysis. As the trial judge made clear, at the scene, the applicant was heavily intoxicated and, as the applicant described it, "very drunk" or "pretty intoxicated". The denial at the scene was a drunken reaction to an allegation that was made and is all but meaningless in the light of the answer to a question in ERISP in which the applicant said: "I got carried away in the moment. I got a bit too drunk [and that he] just wanted to sniff it like I'd sniffed all those years ago."
11. The denial at the scene does not, in my view, give rise to a reasonable possibility that the complainant was either untruthful or unreliable and, in light of the responses given when fully considered, did not need to be separately rejected by the trial judge. The trial judge looked at the whole of the evidence, carefully analysed the applicant's considered responses, and the findings as to complainant's truthfulness and reliability were well open to him on the evidence in the trial.
12. Ultimately, the question is whether, upon the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty. The reference to it "being open" is not intended to consider the issue as a matter of law. As a matter of fact, on an analysis of the evidence, I do not have a doubt as to the truthfulness of the complainant, nor as to her reliability and an analysis of the evidence ought not to have led the trial judge to such a doubt.
13. Further, the text messages are not so unequivocal as to raise a doubt. The applicant makes clear that he has a lot of explaining to do and a lot of apologising to do. The applicant makes clear in the text messages that he is required to wait for the legal process to occur. [7] Further, the text messages make clear that he went upstairs and "tried to pull her pants down and sniff", when she woke up and "all hell broke loose".
14. When asked about explanation at the time, the applicant texted "I wanted too [sic]! but you were to [sic] busy partying and smoking bongs. I would never have done that [redacted words]. I didn't see [GC] as the child she is, it's no excuse. I didn't think of her age". And, further, the applicant made clear that he had told the Police the same as he told the person to whom the text messages were sent.
15. In the foregoing text messages, while there is a statement by the applicant to the effect that it would be "funny to re-live [his] very first sexual experience" and that he tried or wanted to pull her pants down and sniff her "downstairs", the applicant does not say that nothing more occurred. [8] The denial by the applicant at the scene occurred while a number of persons were accusing him and yelling. The evidence was that the applicant said he wouldn't do that and he was just carrying the complainant upstairs. The latter statement is plainly false.
16. Further, his denial that he would not rape her must be understood in the context of rape in its often-misunderstood meaning of penile penetration. Moreover, his comment that he wanted to pull her pants down sits uncomfortably with the evidence that her pants were down, and he got "carried away" and his recollection of seeing GC's "vagina".
17. Given the applicant's comments that he "did something bad"; that "something snapped in [his] head"; and that he "fucked up big time"; and that he was telling the Police the same as he was telling the recipient of the text messages, these conversations and text messages cannot be read as an unequivocal denial of the events recounted by the complainant.
18. As for the telephone conversations with Ms McClelland (Exhibit 10) the applicant admitted to taking GC's pants off and wanting to re-live his "first sexual experience" which was "sniffing" (which he went on to do) and she woke. The applicant denied touching her. The conversation was short and lacked specificity. As to reliance, only faintly put, on the statements relating to a character reference (the Everett evidence), it takes the matter no further.
19. In light of his Honour's directions to himself and the conclusions he reached, it was unnecessary to deal expressly with the evidence to which the applicant now directs this Court's attention. No error has been disclosed.
20. As earlier stated, the trial judge gave himself a Liberato direction. His Honour went on to conclude that the version of events given by the complainant had been proved beyond reasonable doubt. This is the test that Liberato and the High Court have required.
21. Moreover, his Honour included a comprehensive summary of the applicant's considered version of events, which was to the effect that the applicant had no clear memory of performing cunnilingus and that he did not believe that he had.
22. The learned trial judge accepted as truthful and reliable the evidence of the complainant. He did not, as a consequence of observing all of the evidence adduced on behalf of the applicant and giving the applicant credit for his previous good character, have a doubt about that evidence.
23. In my view, each of Grounds 1 and 2 should be rejected and no aspect of the argument in relation to them should be accepted. In those circumstances, on the concession of the applicant, Ground 3 does not arise.
24. It is therefore unnecessary strictly to deal with the ground of appeal in relation to the unreasonable verdict. Nevertheless, as is clear from the foregoing comments, having analysed all of the evidence, I do not have a reasonable doubt as to the guilt of the applicant and, if it were necessary to deal with Ground 3, notwithstanding the concession of the applicant, the ground of an unreasonable verdict is also rejected.
25. Since the drafting of the foregoing I have had the advantage of reading in draft the reasons of N Adams J and gratefully adopt those additional comments.
26. In those circumstances I propose that the Court make the following orders: 1. Leave to appeal be granted; 2. Appeal be dismissed.
27. N ADAMS J: I agree with the orders proposed by Rothman J for the reasons provided but wish to provide some additional reasons for doing so.
28. Both grounds 1 and 2 concern the trial's judge's findings in relation to the applicant's version of events in the context of the Liberato direction. That direction comes from the dissenting judgment of Brennan J (with whom Deane J agreed) in Liberato v The Queen (1985) 159 CLR 507 at 515. It has been held that the need for such a direction might arise in a trial when the Crown case rests on the version provided by one Crown witness, and the accused gives a version. The purpose of the direction is to ensure that the jury does not improperly reason that if they prefer the Crown's witness, they can convict. The direction is intended to reinforce the onus and standard of proof to the jury.
29. The circumstances in which a Liberato direction might be required was considered by the High Court in De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 and the direction that is now frequently given in sexual assault trials in NSW can be found at [12] of that decision as follows: "It is preferable that a Liberato direction be framed along the following lines (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?"
30. A Liberato direction is not required in every sexual assault trial. As Kiefel CJ, Bell, Gageler and Gordon JJ observed in De Silva v The Queen at [13]: "Whether a Liberato direction is required will depend upon the issues and the conduct of the trial. At a trial where there has been no suggestion, whether express or implied, that the jury's determination turns on which of conflicting prosecution and defence versions is to be believed, there may be no need to expand on conventional directions as to the onus and standard of proof."
31. As Rothman J has noted at [55], prior to the decision in De Silva v The Queen, intermediate appellate courts had expressed differing views as to whether a Liberato direction is appropriate in a case in which the accused has not provided a version on oath, but did participate in a police interview. It is now settled, since De Silva v The Queen, that such a direction should be provided even if the accused's version is not on affirmation or oath.
32. The applicant did not give evidence at his trial, but he did participate in two electronically recorded interviews (ERISPs) in which he made significant admissions in relation to the circumstances of how he came to be in the complainant's bedroom. He agreed that he carried the 15-year-old complainant to a bed whilst she was "comatose" or "passed out" and returned downstairs. He volunteered that he then thought that it would be "funny" if he re-lived his first sexual experience (which was apparently sniffing a woman's genitals) so he returned to the bedroom where the complainant was sleeping. He admitted that he had a memory of trying to take her jeans off. He also had a vague memory that at one stage he may have seen her naked genitals. The area of dispute was whether he had "sniffed" her vagina (his recollection) or "licked" it (the complainant's recollection). Whatever he was doing it woke the complainant up. She then went downstairs, made immediate complaint that he had "licked her out" and left the house for some time.
33. When police arrived at the premises, they found the applicant to be very intoxicated and not in a state to be interviewed. This is consistent with what he later told police in the ERISPs when he said things such as, "I can't remember anything…I'll tell the truth…and even that's…a little bit jumbled", "I was pretty drunk…I can't remember the whole night like I was sober, I was very drunk…", "I've got a vague, I dunno whether it's…a real memory...or implanted…of seeing her vagina. Only because I've been thinking about it so much, did I, were they all the way down, where they not? I, honestly, I can't say for sure either way."
34. The applicant's counsel sought a Liberato direction at his trial which was not opposed by the Crown, although his Honour queried whether one was required. The direction by the trial judge was in these terms: "The complainant and the accused were the only persons present at the time of the alleged offences but the determination whether they are proven does not involve a choice between their accounts. The Crown relies on the complainant's evidence to prove each count. Her evidence must prove them beyond reasonable doubt even if the accused's account is rejected and he must be found not guilty if his account leaves a reasonable doubt about it."
35. The applicant contends that having given himself that direction, the trial judge was required to expressly state why he rejected the accused's version. His Honour dealt with the applicant's version this way in his reasons for being satisfied beyond reasonable doubt on count 1: "As noted the complainant's evidence that the accused licked her vagina was credible. Evidence of her immediate complaint at the house supports the Crown case that the accused did the act alleged as well as her credibility. Evidence of her complaint to attending police also supports her credibility in respect of this alleged act. Evidence as to her intoxication and its effects does not support any inference that she may have mistakenly perceived the act she felt. Nor does it establish any other reliable base for an adverse inference regarding her credibility. The accused's account in interview was consistently to the effect that he did not think he did the act rather than that he recalled that he did not. His intoxication was such that he acknowledged he did not remember all he did. His account leaves open that he may have done the act but not remembered it. His good character does not in the circumstances warrant doubt that he did as alleged. So far as its affect on credibility is concerned, it does not rectify his loss of memory. The evidence establishes beyond reasonable doubt that the accused licked the complainant's vagina as alleged. The complainant was asleep when he moved her to the side of the bed and began to lower her pants. She appears to have woken in the moments immediately preceding the act. She had no effective opportunity to consent to it. The accused acknowledged in an interview that she could not consent to it in the circumstances. The complainant's response on fully waking makes clear that she did not consent to the act. The evidence thus establishes beyond reasonable doubt too that the complainant did not consent to the act. The accused acknowledged in interview that he did not consider her consent at the time. He believed she was asleep. He said that he only did so once she woke up and he saw her response. His account was thus to the effect that he did not consider at all whether she consented and her inability to consent would have been obvious to anyone with his mental capacity had they considered it. The accused was at the least reckless as to the complainant's consent. He is then taken to know she did not consent. The evidence thus establishes beyond reasonable doubt that he knew she did not consent. There is no issue the complainant was aged under 16 years at the time. The evidence thus establishes beyond reasonable doubt all the evidence of Count 1." (Emphasis added.)
36. Similarly, his Honour's reasons for finding the applicant guilty on count 3 were as follows: "The complainant's evidence the accused kissed her belly was also very credible. Evidence of police regarding her complaints is itself inconsistent. It warrants no adverse inference regarding the credibility of her evidence in respect of this alleged act. The accused's account in interview was again consistently to the effect that he did not think he did the act rather than that he recalled that he did not do it. The accused's intoxication was such that he did not remember all that he did. His account leaves open that he may have done the act but not remembered it. The significance of good character is the same as previously addressed. The evidence establishes beyond reasonable doubt that the accused kissed the complainant's belly. The act the complainant described comprised kissing from her belly button down toward her genital area. The kissing constitutes touching. The part of her body concerned made it sexual. The evidence establishes beyond reasonable doubt that the accused sexually touched the complainant. There is no reasonable possibility it was accidental. The evidence establishes the act was intentional. The complainant woke at about the time of the act. She had no effective opportunity to consent to it. The accused acknowledged she could not consent. In the circumstances the evidence establishes beyond reasonable doubt that she did not consent to it. The accused acknowledged in the interview that he did not consider her consent at the time. He was again at least reckless as to consent. He is taken to know she did not consent. The evidence thus establishes beyond reasonable doubt he knew she did not consent to the act. The evidence therefore establishes beyond reasonable doubt all the elements of Count 3." (Emphasis added.)
37. Having regard to the account provided by the applicant to police in his two ERISPs, it was well open to the trial judge to conclude that the applicant's version left open the possibility that the acts had occurred as alleged by the complainant and the applicant simply could not remember them due to his intoxication. Given this finding by the trial judge, there can be no suggestion that his Honour was required to provide reasons as to why he rejected the applicant's version; the applicant's version was not inconsistent with the complainant and the two could be reconciled.
38. As for the complaint in submissions that the judge's Liberato direction was "truncated", it is to be accepted that his Honour did not expressly direct himself that if he either accepted the applicant's version (or thought it might be true) he must acquit. But, again, the problem with this aspect of the applicant's complaint is that the portion of the Liberato direction his Honour did not expressly give himself did not arise on the facts in this matter given the finding that the applicant's account left open that he may have done the acts but not remembered them.
39. The remaining complaint was that when his Honour stated in his reasons that the applicant's account to police left open that he may have done the act but not remembered it, he was required to also refer to other versions the applicant had given to friends: there was evidence that the applicant had made a denial at the scene (at the time police considered him too intoxicated to be interviewed); that he had also made some denials in text messages with the complainant's friend's mother; and, much later after he was charged, that he had made denials in a recorded telephone conversation with another friend.
40. The fact that under different circumstances the applicant made some simple denials to his friend did not require the trial judge to explicitly refer to them again when making his findings. The denial at the scene had no detail, was made when he was highly intoxicated and preceded the first ERISP. The version given to the complainant's friend's mother over text was sent on a date between the two ERISPs and did not include express denials; rather it included the following: "Ok if u insist on text I did do something bad at the party I was very drunk [the complainant] was passed out on the lounge downstairs … something snapped in my head and I thought I would be funny to relive my very first sexual experience I went upstairs Tried to pull her pants down and sniff her downstairs if you know what I mean, her private parts that (sic) when she woke up and all hell broke loose."
41. The denial to the other friend took place after he was charged at a time when he had firmed up his denial and was defending the charges in court. His Honour noted this in his reasons when he observed that "[i]t is evident that his account had evolved from maintaining that he did not think he did as alleged into a denial that he had."
42. In these circumstances, the complaint regarding his Honour's findings in this regard is not made out.

Endnotes

1. Appeal Book, p 206.
2. Ibid.
3. Appeal Book, p 208.
4. M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.
5. Ibid, at CLR 494-495.
6. Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 65; Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34; Murray v The Queen (2002) 211 CLR 193 at 213; [2002] HCA 26 at [57]; De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48.
7. Appeal Book, p 254.
8. Appeal Book, pp 263-264 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2023