[2022] HCA 25
Edwards v The Queen (2021) 273 CLR 585
[2021] HCA 28
Filippou v The Queen (2015) 256 CLR 47
[2021] HCA 36
Ilievski v R
Nolan v R (No 2) (2023) 112 NSWLR 375
Source
Original judgment source is linked above.
Catchwords
[2022] HCA 25
Edwards v The Queen (2021) 273 CLR 585[2021] HCA 28
Filippou v The Queen (2015) 256 CLR 47[2021] HCA 36
Ilievski v RNolan v R (No 2) (2023) 112 NSWLR 375[2023] NSWCCA 248
Kalbasi v Western Australia (2018) 264 CLR 62[2018] HCA 7Lee v R [2023] NSWCCA 70
M v The Queen (1994) 181 CLR 487[1994] HCA 63
Manojlovic v RR v Manojlovic [2020] NSWCCA 315
Maughan v R [2020] NSWCCA 51
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
Park v R [2023] NSWCCA 71
Pell v The Queen (2020) 268 CLR 123[2020] HCA 12
Picken v R [2007] NSWCCA 319
Plomp v The Queen (1963) 110 CLR 234[2009] NSWCCA 180
The Queen v Baden-Clay (2016) 258 CLR 308[2016] HCA 35
Tomlinson v R (2022) 107 NSWLR 239
Judgment (9 paragraphs)
[1]
The applicant's Google Translate Messages Exhibit L
The applicant argues that Ex L, containing the Google Translate messages on the applicant's phone, further undermines the evidence of the complainant and corroborates his own evidence. As noted above, Ex L only shows the communication from the applicant to the complainant. It records communications during the appointments and some communications then sent as text messages, duplicated in Exhibits G and H. As already noted, the applicant submits that an available inference in regard to Ex L is that it likely captures all of the communications from the applicant to the complainant from the second appointment onwards, due to the complainant's purportedly limited level of English and the evidence of both the complainant and the applicant.
The applicant says that there are no communications within Ex L that can be said to be inculpatory or amount to an admission as to any of the offences and that they appear to have related to treatment, bookings for appointments and checks on the complainant's health and welfare. The applicant says that none of the messages in Ex L appear inappropriate, apart from those which occurred on 14 February 2019. The applicant says that the fact that Ex L appears to reflect that the communication exchanges facilitated by Google Translate during the appointments could often be lengthy, undermines the complainant's evidence that she was unable to express her concerns, questions or complaints to the applicant in regard to his alleged conduct.
[2]
The Timing of Complaint to Frank Cotterell
The applicant also raises the inconsistency between the complainant's evidence that, after the appointment on 31 January 2019, she communicated to Mr Cotterell her concerns about the treatment and Mr Cotterell's evidence as to the date of the complaint being at the end of February (after the falling out between him and the complainant on 14 February 2019) (2/3/22; T 262.22-T 263.50). The applicant says that the timing of the alleged complaint to Mr Cotterell in late February 2019, after his falling out with the complainant, lends further support to the applicant's evidence that the only sexual contact with the complainant occurred at her instigation on 14 February 2019. (Pausing here, the precise basis for this submission is not clear.) Further, the applicant says this is consistent with the only appointment in which the applicant asked the complainant to remove her underwear being on 31 January 2019, when he used the technique for lymphatic drainage. It is noted that the only other complaint to Mr Cotterell occurred in June 2019.
[3]
The complainant's level of English
The applicant also points to inconsistency as to the complainant's level of ability to speak English.
The applicant points to Mr Cotterell's evidence (see above) that he had no difficulties in communicating with the complainant in English, provided that he spoke slowly, which the applicant says is consistent with the evidence of Ms Michael and Ms Lee, who had observed Mr Cotterell only speaking in English with the complainant (25/3/21;T 959.46-960.19; 26/3/21; T 1003.33-48). The applicant also points to the evidence of the complainant's host mother, Ms Stamboulidis, as to her communications with the complainant in English. It is submitted that the complainant's denial that she said or could have said the word "inappropriately" to Ms Stamboulidis should not be accepted (1/3/22; T 193.24).
The applicant says that there was inconsistent evidence from the complainant as to her level of English at the time of the alleged offences (noting her evidence wavered from being that she has such limited English that she could not express herself at all, to at other times stating that that she communicated using the words such as "yes", "no", "stop", "painful" and "sleepy", and to having told to Ms Sato (as reflected in Ex M) in relation to Counts 5, 6 and 7, that she had said "why are you doing this to me?"). The applicant says that the complainant's evidence as to her English ability vacillated throughout her evidence "to adapt to the evidence she was seeking to give at the time of the answer, and she downplayed her level of English ability". The applicant says that this is undermined by the independent witness evidence and should not be accepted.
[4]
Reasonable doubt as to the complainant's reliability and credibility
It is submitted that the identified deficiencies in the evidence of the complainant, demonstrated individually and cumulatively, give rise to reasonable doubt as to her reliability and credibility. It is further submitted that such a doubt is not able to be resolved by reference to the advantage enjoyed by the trial jury in the second trial (reference being made to what the High Court said in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [39]). The applicant submits that, by comparison, his evidence was cogent, consistent and unshaken in cross-examination; that it was further supported by the independent evidence in Exhibits F, L, G and H. It is submitted that, at the very least, the applicant's account is reasonably possible and, as a result, a verdict of acquittal should be entered. Even if the applicant's evidence is put to one side, it is submitted that the Court could not be satisfied of the reliability and credibility of the complainant.
[5]
Crown submissions
The Crown submits that, on an independent assessment of the whole of the evidence at trial, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. In response to the matters raised by the applicant in relation to Ground 2, the Crown submits as follows.
The Crown says that the complainant readily acknowledged that her reference to Valentine's Day in her text to the applicant that stated "I do not understand. I wanted to know what you think. Ask again. Why did you touch my pussy? Why Valentine's Day?" was a mistake; and points to the complainant's account of the applicant's allegation that she had placed her hands over her underpants on Valentine's Day (15/3/21; T 485.41). The Crown Prosecutor submitted to the jury that the applicant's evidence that she instigated sexual contact that day was a poor attempt to explain the content of text messages (10/3/22; T 471.5). The Crown says that it was well open to the jury so to reason. The Crown says that the complainant was not "unable" to provide "a satisfactory response"; rather, that such a submission is but a characterisation that was open for the jury to reject (cf applicant's submissions at [181]).
[6]
Advantage of the jury
Finally, the Crown points to the advantage of the jury in seeing and hearing the witnesses (albeit that the complainant's evidence was by audio-visual recording). The Crown says that, to a degree, the extent of its advantage can be discerned from the transcript, such as witnessing her become increasingly upset as she gave evidence (2/3/21; T 150). The Crown says that it fell to the jury to evaluate the complainant's evidence in light of the evidence of others and the jury was best placed to assess the complainant's general response to cross-examination (citing Lee v R [2023] NSWCCA 70 at [28]).
The Crown notes that this Court proceeds upon the assumption that the complainant's evidence was assessed by the jury as credible and reliable (Pell at [39]). Insofar as the applicant contends that there were "occasions" where the complainant was said to be "evasive, unresponsive or refused to answer questions", the Crown says that he only identifies two so-called such occasions from the seven and a half days of cross-examination (see submissions at [167]); and on both occasions, the question was not ultimately pressed (4/3/21; T 229.22-23; 18/3/21; T 604.33-45).
[7]
Determination
There was no dispute as to the applicable principles on an unreasonable verdict ground (see M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (Dansie)).
This Court must determine whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of the offence for which he has been convicted, i.e., whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see Dansie at [8]).
I have reviewed the evidence carefully and I am not left with a reasonable doubt as to the guilt of the applicant.
Addressing the matters raised by the applicant in this context I note as follows.
I do not accept that there should be some apprehension arising from the explanation(s) given by the complainant as to why the complainant made the handwritten contemporaneous notes. It does not appear to me implausible that the complainant may have started making a record of her treatments before any suspicion as to the applicant's conduct; if for no other reason than that it is not inconsistent with experience of human nature that some people keep diaries or records of things in their personal or professional lives and here was a person having treatment for apparently chronic pain. There is no basis for a suggestion that the notes were made for some nefarious purpose and having been provided with a colour copy of the relevant note it appears that they were handwritten at different times (being in different coloured pens).
Nor does it suggest to me a state of mind that might be overly suspicious or misconstrue events because of some apprehension or suspicion of misconduct from the outset. Rather, the tenor of the notes makes clear the complainant's concern that she might be misconstruing what had happened or that it might be accidental and is consistent with her explanation that she gave the applicant the benefit of the doubt.
As to the weight placed by the applicant on the fact that some incidents were not recorded in the notes - (such as the touching of genitals in Count 1), this must be treated with some caution given that by this stage (the sixth appointment) what was occurring seems to have been a progression of touching in areas increasingly close to the complainant's vagina and anus.
I do not accept that the complainant's answer in cross-examination amounts to a concession that there was no touching of the female genital area and the complaint by the applicant that this could not have occurred when the complainant was lying on her stomach suffers from the problem that the offending was said to have occurred when she lay on her back.
As to the inconsistencies identified by the applicant between the complainant's notes, Ms Sato's notes, her evidence and the text communications, given the context and particularly given the possibility for confusion in translation, I do not see these as giving rise to a reasonable doubt. The suggestion that reference to difficulty in translation was some kind of convenient excuse does not grapple with the accredited interpreter's own recognition of there being some Japanese words with no direct translation into English.
As the Crown submissions make clear, the identified inconsistencies in the evidence of the offences have a logical explanation. The concerns raised by the applicant as to the evidence concerning Ground 13, and the vibrator for example, can readily be explained by the complainant seeing an object on the windowsill and assuming this was the object to which the applicant was referring. That says nothing about the credibility of her evidence as to the applicant licking her vagina.
The applicant focusses on Counts 1, 2 and 7 when submitting that these in isolation should have raised a "reasonable" doubt.
I have already made my observations in relation to Count 1.
Count 2 was touching her genitalia while massaging her groin. The complainant's notes recorded "same as previous time" - an incident of touching her female genital area. The evidence was that the complainant understood female genital area as including the area of clitoris and vagina. The perceived inconsistency between that and Ms Sato's note of massaging her vagina and anal areas does not raise reasonable doubt.
Count 7 was digital penetration of her anus. In relation to Count 7, the absence of references in the contemporaneous notes to digital penetration was something the jury could actively take into account, but it needs to be understood by reference to the record in her notes of her reaction to this and her evidence as to the conversation in which she says the applicant said he was not giving her an ordinary regular massage.
The fact that there was no record of this in the notes or Ex L is not conclusive that the exchange did not occur, since there was evidence of deletion of entries in Google Translate from the applicant's phone.
The complainant's evidence in cross-examination that she thought he put his finger in her anus does not raise a reasonable doubt, when taken into consideration with her evidence that she felt something inserted in her anus but was lying down and not looking at her anus or his fingers.
The fact that something other than "ordinary regular massage" has occurred and that she had told the applicant she did not want that kind of massage makes understandable the subsequent entry in her notes in relation to the appointment on 14 February 2019 that "there was nothing today" and her subsequent irritation in relation to Count 8 that he had "touched her".
In between Counts 7 and 8 was, of course, the Valentine's Day appointment as to which there was a clear dispute between the complainant and the applicant. The later text message from the complainant that refers to Valentine's Day makes clear that there was an appointment on that day (as the complainant herself accepts). The dispute is as to what occurred on that day (the applicant says consensual sexual contact instigated by the complainant; the complainant says no sexual contact). Unless the complainant was (as she says) simply mistaken as to the date, this seems a clear recognition that there was sexual contact of some kind; and it seems perhaps unlikely that one would readily mistake "Valentine's Day" for another non-descriptive day.
That said, the applicant's account is also problematic insofar as, on his own account, there had been no sexual contact between them up to that point; it was shocking to him and caused him to "freeze"; he knew it was inappropriate and unprofessional conduct; and yet he did nothing more than say "stop" and laugh; and then continued to treat the complainant on a number of further occasions.
Ultimately, it was essentially a jury question to determine which account to believe, or some amalgam of the accounts. (The suggestion by the applicant that there was some connection between the break-up of the relationship between Mr Cotterell and the complainant; and the applicant's text message has no basis in the evidence as far as I can see other than the temporal coincidence between the two.)
Accepting that the evidence of the applicant's friend Mr Tallai as to the Valentine's Day incident is credible, it nevertheless does not lead me to doubt that on the occasions on which the complainant did accuse the applicant of inappropriate sexual conduct, such conduct did occur.
As to the significance placed by the complainant on the complainant continuing to attend for treatment, again the jury was best placed to assess the complainant's credibility as to the explanation for attending. I do not accept that had evidence of her work at the Ginza Club been permitted, this would likely have caused the jury a significant doubt. It does not give rise to a reasonable doubt in my mind. What the complainant did at the Ginza Club does not make implausible or not believable her uncertainty as to whether what was happening in the earlier appointments was accidental or not. It is not implausible that the complainant's perceptions were affected by the cultural and language differences at play.
Similarly, I place no weight on the fact that the complainant did not give evidence as to the entire scope of the treatment regime; or as to the evidence as to the size of the towel that was used.
I note that the applicant also identified a number of "themes" throughout the complainant's evidence that were in dispute beyond the denial of the commission of the alleged offences and uncharged acts. First, that the applicant directed the complainant to remove her clothing, resulting in her being treated in her bra and underwear. Second, that in some consultations the applicant directed the complainant to remove her underwear, and in some consultations then removed her underwear himself. Third, that the applicant had, on some occasions after the first appointment, remained in the treatment room, either at the beginning and or end of the appointment, while the complainant was changing her clothes.
Those themes do not cause me to have a reasonable doubt as to the applicant's guilt. Nor does the evidence of the nutritionist interns in circumstances where there is no suggestion that there was any loud complaint made by the applicant. The risk that the interns might come into the treatment room during treatment says nothing - since the taking of risks of detection is not unknown by those engaged in sexual offending.
As to the contradiction in the evidence as to the timing of complaint to Mr Cotterell, again I see nothing flowing from that. The complainant's notes herself record that she had raised with Mr Cotterell at an early stage (after Count 1) and the conclusion that the first treatment had been paid for makes it more explicable that the complainant would feel concern to finish the treatment (especially if paid for by Mr Cotterell and she might be called upon to repay it).
As to the submission that the complainant's credibility was undermined because she could say some words in English, I do not accept this. It is not in dispute (even on the applicant's case) that the complainant's level of English was limited - since he used Google Translate with her. The evidence given, through an interpreter, at trial, seems (from a review of the transcript) amply to support the view that she was nowhere near fluent in English. Being able to say "yes", "no", "stop", "painful" or "sleepy" hardly exhibits a mastery of the English language and does not undermine her credibility.
As to the fact that the complainant did not recall attending the 5 March 2019 appointment recorded in Ex F, this does not give rise to a reasonable doubt. The applicant's evidence was that it was a rescheduled appointment. Whether the complainant forgot about it (as may be the case if it was uncontroversial) or the applicant's records were again "not up to scratch" (as he seems to have conceded was the case for some of those); this dispute does not in my opinion undermine the credibility of the complainant so as to give rise to a reasonable doubt as to the applicant's guilt. (The recollection of Ms Michael that the applicant attended on that day does not raise such a doubt given that her recollection was qualified to some degree (she "thought" it was her last day) and it seems inconsistent with her recollection that the complainant attended with a man on the about three occasions she saw her.)
The most compelling evidence in my view is that comprised by the April 2019 messages (see Exhibits DH and L). The applicant's response to the complainant's messages, far from being a denial of sexual misconduct (other than the denial of licking her body) accepts that there was sexual contact at least in February and his protestation that he only said he found her sexually attractive to placate her is something that it was open for the jury to find self-serving and implausible.
Having reviewed the evidence, and taking into account the advantage of the jury, I am not left with a reasonable doubt as to the applicant's guilt on the charges of which he was convicted.
Ground 2 is not therefore made good.
[8]
Conclusion
I would extend the time for appeal (having regard to Ms Teague's explanation for the delay) and would give leave to appeal (having regard to the seriousness of the convictions and the arguable nature of Ground 1); but would dismiss the appeal.
CAMPBELL J: I have had the great advantage of considering the President's comprehensive judgment in draft. I agree for the reasons expressed by her Honour that Grounds 1(a) and 1(b) have not been made out. I agree with her Honour that it is not necessary to address the operation of Rule 4.15 Supreme Court (Criminal Appeal) Rules 2021 or the proviso to s 6(1) Criminal Appeal Act 1912 (NSW).
I also agree with her Honour's analysis of Ground 2, the unreasonable verdict Ground. Her Honour's detailed analysis of the evidence and arguments, with respect, accords very substantially with my own appreciation of the course of the trial garnered from my own consideration of the written record. I observe that the applicant did not raise any complaint about any aspect of the summing up at the second trial. I accept, as the applicant argued, that there were differences in detail between the various accounts in evidence given by or attributed to the complainant. In the abstract these differences were capable of giving rise to a question about the reliability of the complainant's account in this somewhat complicated case involving 13 counts of sexual offences extending over a period of some 2 months. However, whether the differences were inconsistencies casting a doubt on the reliability of the complainant's account was quintessentially a matter for the jury. I am satisfied that it was well open to the jury in the exercise of its fact finding powers to reject the applicant's account and accept the reliability of the complainant's evidence beyond reasonable doubt. I agree with the orders proposed by the President.
BUTTON J: I agree with Ward P. In my own assessment of ground two, I consider that the text messages of the applicant provide significant support for the Crown proposition that the disputed occasions of sexual contact had indeed occurred.
[9]
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: 16 August 2024
258 CLR 308; [2016] HCA 35
Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16
Zhou v R [2021] NSWCCA 278
Category: Principal judgment
Parties: Riaz Behi (Appellant)
Rex (Respondent)
Representation: Counsel:
J Stratton SC with T O'Rourke (Appellant)
A Bonnor (Respondent)
[This headnote is not to be read as part of the judgment]
On 21 March 2022, the applicant was convicted by a jury of thirteen counts of sexual offences relating to a chiropractic patient on various dates between 31 January 2019 and 4 April 2019 contrary to ss 61KD(1)(a) and 61J(1) of the Crimes Act 1900 (NSW) following a trial before Huggett DCJ (as her Honour then was). On 27 June 2022, the applicant was sentenced to an aggregate term of imprisonment of 9 years, with a non-parole period of 5 years, 6 months to date from 20 March 2022.
There had been an earlier trial commencing 22 February 2021 before Woodburne DCJ in which the jury was discharged after it was unable to reach a verdict. The first trial is of relevance in light of the applicant's complaint as to a ruling made in relation to the inadmissibility of certain evidence under s 293 of the Criminal Procedure Act 1986 (NSW) (now s 294CB) (Criminal Procedure Act) that carried over into the second trial.
The applicant sought leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) on two grounds: first, the trial judge erred in excluding the evidence pursuant to s 293 of the Criminal Procedure Act and, consequently, the trial miscarried as the jury were unable properly to assess the credibility of the complainant; second, the jury's verdicts on the indictment in the second trial were unreasonable and unsupported by evidence.
The Court held (Ward P, Campbell and Button JJ agreeing), granting leave to appeal but otherwise dismissing the appeal:
(1) Assuming that the complainant did perform sexual services in a professional capacity around the time of the offending, this would be evidence of sexual activity in which the complainant participated at "about the time" of the commission of (or at least some of) the alleged prescribed sexual offences, but it is not the case that those events formed part of a connected set of circumstances in which the alleged offences were committed. The effect of the additional requirement in s 293(4)(a)(ii) is that the operation of s 293(4)(a) is narrowed to near-contemporaneous events that are sufficiently integrated with the offending, such that the events are part of the circumstances of the alleged offending: [280]-[286] (Ward P); [420] (Campbell J); [422] (Button J).
Cook (a pseudonym) v The King [2024] HCA 26; R v Morgan (1993) 30 NSWLR 543 considered.
(2) Had error been established in relation to the exclusion of that evidence, in order to demonstrate that the trial miscarried as a result, the applicant would be required to show that the error or irregularity had been to his prejudice, i.e., that what occurred had the capacity for practical injustice or was capable of affecting the result of the trial. This focusses on the nature and potential impact of the irregularity and requires an assessment of all the circumstances of the trial and the demonstration of some connection between the relevant defect or irregularity and the outcome. In light of the low probative value of the excluded evidence, this could not have been established: [287]-[294] (Ward P); [420] (Campbell J); [422] (Button J).
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Zhou v R [2021] NSWCCA 278; Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28; Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36; Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16; AK v The Queen [2022] NSWCCA 175; AW v R [2023] NSWCCA 92; Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 considered.
(3) In assessing the reasonableness of a verdict, the Court must determine whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of the offences for which he has been convicted. Here, it was open to the jury to convict the applicant of all thirteen counts. The inconsistencies in the complainant's handwritten personal notes, the counsellor's notes and the text communications are explicable by reference to other evidence, such as the complainant's limited understanding of English. Further, the text messages between the applicant and complainant, insofar as they demonstrate an acceptance by the applicant of instances of sexual contact, were especially compelling: [392]-[393], [396], [414]-[417] (Ward P); [421] (Campbell J); [422] (Button J).
M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 cited.
First s 293 application judgment
Woodburne SC DCJ determined that the evidence was not admissible and dismissed the application (24/2/21; T 16).
Her Honour observed that the Crown's position was that it had no intention of adducing evidence of the complainant's employment as a "masseuse", nor Mr Cotterell's evidence that he met the complainant when she was working as an escort. In light of this position of the Crown, and the line of case law from Taleb v The Queen [2015] NSWCCA 105 at [22], her Honour held that s 293(6) of the Criminal Procedure Act had no application. (As noted, the defence did not ultimately press the application under that sub-section (24/2/21; T 2; T 4).)
In regard to the application pursuant to s 293(4), her Honour observed that the defence application was seeking to cross-examine the complainant as to the following: that the complainant was familiar with working in an environment involving personal intimacy; that her work rules required her to report to her employer any breach of house rules by her clients; and that the unique nature of the complainant's legitimate sex industry work would make her abundantly aware of sexually appropriate and inappropriate conduct, what is or is not within the ambit of conduct contemplated in a contractual arrangement for personal services between individuals (i.e., conduct to which she has or has not consented), and, moreover, what is innocent or accidental conduct as opposed to sexual misconduct (24/2/21; T 7-8).
Her Honour noted that this was in the context that the defence case was that none of the alleged offences occurred, and said that such a submission would be available on the facts of the matter whether or not leave was granted under s 293 (24/2/21; T 8).
In considering relevance, her Honour observed that there was difficulty identifying the particular evidence, and ambit of the evidence, concerning matters asserted by the defence. Her Honour noted that at the time of the application there was no evidence to establish that the complainant was a sex worker (as distinct from an escort) (24/2/21; T 9), observing that Mr Cotterell's evidence of meeting the complainant, when she was working as an "escort", was not necessarily synonymous with her being a sex worker. Her Honour said that the complainant's evidence that she had worked as a masseuse, in Japan and casually in Australia, could not be taken to be assumed to be a reference to being a sex worker (24/2/21; T 9-10).
Her Honour said that nor was there evidence of rules that may operate in such workplaces or as to the nature of her employment concerning its parameters (24/2/21; T 10-11). Her Honour said that the matters asserted on behalf of the applicant were "laden with assumptions of which there is no evidence", and were not logically probative of the facts in issue (24/2/21; T 11-12).
Applicant's submissions on ground 1
In written submissions, the applicant identified a number of "themes" within the complainant's evidence which the applicant submits are relevant to the considerations under s 293(4) and to which it is submitted that the evidence sought to be tendered (i.e., concerning the nature of the complainant's work as an escort and any work the complainant had conducted in Australia as a masseuse) was relevant and which may have resulted in the jury assessing the complainant's credibility or reliability differently.
The first of those themes was that the complainant was not aware of cultural customs in Australia concerning massage or treatment, and for this reason was not sure if the alleged offences by the applicant were normal parts of massage treatment, which provided part of the complainant's explanation as to why she continued to attend on the applicant. One example given of this was the repeated reference to "pressure points", in the context of what she asserted was "acupressure" treatment, concerning Counts 9 to 11, in the complainant's evidence and Ex M. The applicant says that the jury's consideration of the credibility of this evidence would have been informed by the level of experience of the person giving the evidence; that the jury might have considered that such evidence coming from a lay person was compelling, but may not have found such evidence compelling where coming from a person who not only had a qualification as a masseuse from Bali and had worked as a masseuse in Japan but who also may have been working, or had worked, as a masseuse in Australia.
Second, that the complainant lacked the ability to communicate in English to stop the applicant from allegedly offending or continuing to offend, to express her lack of consent or to question him.
Third, the complainant's evidence as to her being unsure if the applicant had touched her anus or inserted his finger into her anus, and whether the "soft" thing that allegedly touched her anus was the applicant's tongue or something else.
Fourth, the complainant's evidence that she was uncomfortable showing her underwear to anyone, regardless of their sex.
The applicant submits that the above four areas of evidence would have been assessed differently, had the jury have been aware that the complainant worked as an escort in a licensed brothel, was advertised in her underwear on the website, and provided "girlfriend experiences". It is submitted that the evidence of the complainant working as an escort at the Ginza Club, during the period of the alleged offending, the nature of her work at the Club, and how she was advertised, should have been held to have had probative value in how it may have affected the jury's assessment of the complainant's credibility and reliability.
Complainant's attendance at work vis-à-vis appointments
As to the applicant's submissions that the complainant attended work after appointments with him during which offences occurred, the Crown says that Ex F (a record of appointments with the applicant) and MFI 19 (the Ginza Club document) do not readily reconcile, and, again, points to the complainant's evidence that she did not think she went to work after appointments (18/3/21; T 611).
The Crown argues that a submission that the jury may have considered the complainant's credibility differently if she had attended work after appointments during which an offence was said to have occurred tends to invoke outdated assumptions about the way that victims of sexual offending might behave (referring to Maughan v R [2020] NSWCCA 51 at [2] (RA Hulme J), at [99] (Ierace J); Harper v R [2022] NSWCCA 211 at [118] (Button J); Rao v R [2019] NSWCCA 290 at [98]).
The Crown also points out that defence counsel asked the complainant questions about attending work and says that there was nothing to prevent defence counsel putting to her that she did so despite difficulties with sleeping, stress and physical pain in her back.
The Crown says that the Ginza Club records were emails apparently referring to work shifts, rather than days on which the complainant went to appointments with the applicant; and that it is unclear how those records would have shown the complainant was "inaccurate or untruthful" when she said that she did not think she attended an appointment with the applicant on 5 March 2019.
It is noted that the applicant concedes that r 4.15 applies. The Crown says that it was incumbent upon the applicant to make an application under s 130A(3) of the Criminal Procedure Act in respect of the second s 293 judgment by Woodburne SC DCJ at the second trial and discharge the onus of contending that it would not be in the interests of justice for the order to be binding (see Hayne v R [2022] NSWCCA 11 at [71]).
The Crown notes that the question of a s 130A(3) application was raised in the second trial, touching on the s 293 ruling by Woodburne SC DCJ (2/3/22; T 262.39-42, T 267.24-25, T 268.5-6, T 269.33-34, T 270.50-271.7, T 271.15-17, T 273.48-274.4, T 275-276.20); and defence counsel was aware that a revisitation of the rulings could be sought.
In light of the issues for determination by the jury, the Crown submits that denying the applicant the opportunity to cross-examine the complainant about whether she was a sex worker did not mean that he lost a real chance of acquittal (see Greenhalgh v R [2017] NSWCCA 94 at [47]-[48] (see also, at [7]-[21] (Basten JA)), N Adams J endorsing the statement in ARS v R [2011] NSWCCA 266 by Bathurst CJ (at [148]); Picken v R [2007] NSWCCA 319 at [20]-[21]; referring also to Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]). The Crown says that no evaluation of "the answers of the complainant … as to the issues" nominated by the applicant would have any material bearing upon consideration of the issues for determination, much less give rise to such a chance. Hence, the Crown submits that leave under r 4.15 is not warranted.
Proviso
If it is concluded that error occurred and/or miscarriage of justice (that is, a departure from a trial according to law to the prejudice of the accused) was occasioned in respect of Ground 1, the Crown relies on the proviso in s 6(1) of the Criminal Appeal Act. The Crown notes that the question whether, notwithstanding any departure from a trial according to law to the prejudice of the accused, there has been no substantial miscarriage of justice, focuses upon whether the nature and effect of the error which has occurred prevents the appellate court from undertaking its assessment of whether guilt has been proved to the requisite standard (citing Plomp v The Queen (1963) 110 CLR 234 at 243; [1963] HCA 44; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [69]).
The Crown says that, in the present case, any cross-examination on the additional issues sought to be adduced by the applicant would be of marginal relevance to the issues in dispute at trial; and that this Court is not deprived of the ability to determine the nature and effect of the error (cf Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 (Kalbasi) at [13]; Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 (Hofer) at [54]).
Applicant's submissions
The applicant submits that the complainant's evidence relating to Counts 1 and 2 cannot prove the offence of aggravated sexual touching beyond reasonable doubt in circumstances where the context of the alleged offending was during chiropractic treatment of the groin and hip flexors. The Crown says that this should be rejected.
In regard to Counts 1, 2 and 7, it is submitted that the inconsistencies in the complainant's evidence, and the concessions which the complainant made in cross-examination, taken in isolation, should have raised a reasonable doubt as to those counts. In relation to all the counts, it is submitted that the inconsistencies between the complainant's evidence and other versions she gave of these incidents should have given rise to doubts. It is submitted that the inconsistencies in the complainant's evidence, taken with the other issues raised by the applicant (see below) cumulatively raise unassailable doubt as to the complainant's reliability and credibility.
The Crown says that many of the complaints of "inconsistencies" between the complainant's evidence and other evidence concern the complainant's personal notes and notes made by her counsellor. In relation to this, the Crown emphasises the following: first, that variations in the terms in which a complainant discloses sexual assault may be explained by context (referring to a restricted decision - [2023] NSWCCA 223 at 94), where Adamson JA, Wright and Fagan JJ agreeing, cited Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [91] (Hoeben CJ at CL, Button and N Adams JJ agreeing); and, second, that some Japanese words did not have direct English translations.
It is noted that one must examine the issue from the complainant's point of view and with due consideration of the circumstances in which records were made; and that some discrepancies in narratives are to be expected. The Crown points to the complainant's explanation of the purpose of her personal notes as being a "personal diary, just a journal, a diary" (4/3/21; T 219.24-29); and that Ms Sato's notes were a summary to assist the complainant with a document for the police (4/3/21; T 219.24-29); Ex M, (1/3/22; T 204.50-205.2).
Her Honour observed that there was no evidence about rules said to operate in appropriately registered premises, regarding dealings and interactions between clients and staff, nor as to what the nature of such employment would require the complainant to be cognisant of; and that there was no evidence of what the complainant would be required to notify her employer of or any such processes. Her Honour did not find evidence as to the "unique nature of legitimate sex industry work" that would make the complainant aware of sexually appropriate or inappropriate conduct, that she had or had not consented to, or what was innocent, or incidental conduct as opposed to sexual misconduct (24/2/21; T 11).
Her Honour found that the comparison sought to be made between knowledge of workplace rules and therapeutic boundaries in receiving chiropractic treatment was a false one, observing that the matters submitted upon were not logically probative of the fact in issue in the proceedings. Her Honour outlined that it had not been explained how, by the asserted employment, the complainant would be specifically equipped to identify the fact that a doctor was proceeding beyond the bounds of what was accepted therapeutic massage to be administered by a chiropractor; and, despite a lack of English skills, would be specifically equipped to articulate and voice her concerns. Her Honour found that it was not demonstrated that the evidence could have a logical bearing on the issues at trial, and found that it was not relevant (24/2/21; T 11-T 13).
Her Honour noted that if the test of relevance was in fact met, then she would have to have regard to s 293(4)(a)(i) and (ii), and if that was satisfied, would be required to determine whether the probative value of the evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of the admission of that evidence (24/2/21; T 12-T 13).
Her Honour observed that, even if the complainant had worked as a sex worker, there was no evidence that the work was conducted "at or about the time" of the commission of the alleged offences. Further, even if such evidence existed, her Honour rejected the submission that s 293(4)(a)(ii) was satisfied because of Mr Cotterell's disclosure of how he met the complainant, his attendances with the complainant, and his payment for some of the appointments, and rejected that such evidence might form part of a "connected set of circumstances". Her Honour noted the authorities requiring broad construction of the section in the interests of an accused, but found that these factors did not make the fact or the nature of her employment either relevant or part of a connected set of circumstances (24/2/21; T 14-15).
Her Honour held that even if it was part of a connected set of circumstances, the complainant's employment as a sex worker (if she was so employed) was of insufficient value to outweigh any distress, humiliation or embarrassment which the complainant might suffer. Her Honour found that the assessment of the probative value of such evidence, if any, was extremely low, and that it would cause the complainant a high degree of stress, humiliation and embarrassment, such that it would outweigh the low probative value of the evidence. Her Honour said, in relation to the complainant's work as a masseuse, that cross-examination would need to extend beyond the "label" to the nature of that work and whether it involved sex work, and then to the details of what the sex work involved. Her Honour held that the probative value of that evidence did not or would not outweigh any distress, humiliation or embarrassment that the complainant may suffer. Her Honour therefore refused the application by the defence seeking to adduce the complainant was a sex worker (24/2/21; T 14-T 15).
In conclusion, Woodburne SC DCJ said that (as adverted to above), in any event, there was no evidence the complainant worked as a sex worker "at or about the time" of the commission of the alleged offence(s) (24/2/21; T 13); and that the manner of meeting through Mr Cotterell did not form "part of a connected set of circumstances in which the alleged sexual offences were committed" (24/2/21; T 14-15). Her Honour said that the proposed cross-examination would cause the complainant a high degree of stress, humiliation and embarrassment that would "well outweigh the low probative value of the evidence" (24/2/21; T 15-16); and similarly in relation to work as a masseuse, as the cross-examination would need to extend to whether that involved sex work (24/2/21; T 16).
The applicant takes no issue with the dismissal by Woodburne SC DCJ of the first application.
Following judgment on the first s 293 application, the Crown raised a question in the absence of the jury as to whether her Honour's ruling related to evidence as to the massage course undertaken by the complainant in Bali; and to work as a masseuse in Japan. Defence counsel identified the perceived relevance of the Bali course as being familiarity with massage, in that it goes to the complainant's perception of what she described as a massage that was inappropriate (see 24/2/21; T 13).
Woodburne SC DCJ considered that the comparison sought to be made based upon the complainant's asserted employment, her knowledge of her workplace rules and the therapeutic boundaries in receiving chiropractic treatment was a false one. Ultimately, her Honour indicated that she would permit questions on the Balinese qualification subject to it not being a qualification as to sex work (24/2/21; T 17).
This led to an additional statement being obtained from the complainant as to the nature of the course she had undertaken in Bali.
At trial, the complainant confirmed her understanding that chiropractic treatment is different from relaxation massage (see 4/3/21; T 233.43-45).
Fifth, the evidence that the complainant attended work after appointments with the applicant, on 24 January 2019, 5 March 2019 (the disputed appointment), 7 March 2019 (the date on which she alleged that the applicant committed Count 9), 21 March 2019 (the date on which the applicant allegedly committed Count 11) and 28 March 2019 (the date on which the applicant allegedly committed Count 12). It is submitted that the jury may have assessed the credibility of the complainant, and the issue of delayed complaint, differently had this evidence been placed before them; that the jury may have considered whether it was likely that the complainant would attend work as an escort if she had been offended against in the manner alleged, without making any complaint, in accordance with the complaint directions provided.
Sixth, the complainant's evidence that she continued to attend for treatment, despite the alleged offending, for a number of different reasons (including difficulties with sleeping, stress and physical pain from her back). The applicant complains that the jury was left to assess this evidence in the broader context of the complainant only attending class to study English twice a week. It is said that the only reference to the complainant's "work" was made briefly in cross-examination, with the nature of the work not detailed. It is submitted that the jury may have assessed the credibility of the complainant's evidence about the difficulties in her life in a different way, in the context of the complainant also allegedly working as an escort and/or masseuse.
Seventh, reference is made to the challenge to the complainant in cross-examination as to her attending work after appointments with the applicant on 24 January, 5 March, 7 March, 21 March and 28 March 2019. It is noted that the complainant gave evidence that she did not think she had attended an appointment with the applicant on 5 March 2019. The applicant says that the cross-examination on this topic was very limited as a result. It is said that, as a result of the s 293 rulings, counsel was unable to tender the Ginza Club records showing that the complainant's evidence was inaccurate or untruthful, depriving the jury the opportunity properly to assess the complainant's credibility and reliability.
Further, the applicant says that the complainant's experience in massage in Bali and Japan was raised by the Crown in examination in chief of the complainant, despite Woodburne SC DCJ's initial s 293 ruling. It is submitted that the leading of that selective evidence functioned to create unfairness, in circumstances where the defence was unable to cross-examine as to the complainant working, or not working, as a masseuse in Australia. The applicant says that it may have created for the jury the incorrect impression that the complainant had been trained in Bali and had worked as a masseuse only in Japan, not in Australia; and that incorrect information may have been used by the jury to draw inferences as to the complainant's level of understanding, or absence of understanding, about the conduct or provision of massage in Australia, absent any knowledge as to her work as a masseuse in Australia. The applicant says that this was of further concern in light of the complainant's evidence as to her purported lack of understanding as to what was culturally normal or abnormal in regard to massage treatment in Australia. Further, the applicant says that the complainant gave evidence that this lack of understanding informed her response to the alleged offences and why she continued to attend upon the applicant, despite the alleged offending.
The applicant argues that the jury would have assessed these submissions very differently had the jury been aware of the matters addressed above. It is submitted that the jury was provided with an inaccurate and incomplete picture of the complainant, to use when assessing her credibility, her reliability and the Crown case more broadly.
The applicant complains that, in light of the s 293 ruling, the defence submissions in challenge to the Crown submissions, in seeking to contend that the complainant would have known that the alleged offences were not proper health related treatment, had to be cast at a wide level of generality and limited expertise. The applicant says that defence counsel was unable to ask the jury to consider whether they found it reliable or credible that a person employed as an escort, and who had been, or was also, employed as a masseuse in Australia, would have thought that the alleged offending was proper health related treatment, was culturally Australian, or could have occurred accidentally.
It is submitted that there is a level of artificiality to the restriction placed on the defence in this regard, where there was evidence before the Court on the second s 293 application that the complainant had experience in receiving chiropractic and massage treatment in the past in Japan, was also a masseuse accredited in Bali who had worked as a masseuse in Japan and Australia, and who was working as an escort during the indictment period. It is submitted that these facts would have had a significant bearing on the jury's consideration of the complainant's credibility and reliability, and in the jury's consideration of the evidence of complaint, in light of the directions. Pausing here, in final submissions on the appeal, Counsel for the applicant corrected this in saying that there was no evidence before the Court that the complainant had worked as a masseuse in Japan (as opposed to having had massages in Japan) (see AT 4.21).
It is submitted that this evidence may also have influenced how the jury assessed the evidence of the applicant as to the events on Valentine's Day and the complainant's denials in regard to those events. The applicant submits that it may have cast the jury's consideration of those events in a different light, had they been aware that the complainant was either or both a qualified masseuse and a person working as an escort at the time, particularly in light of this occurring on the same day that the complainant had a falling out with Mr Cotterell, with whom she had formed a relationship while working as an escort.
In written submissions, the applicant says that, at the time of the second ruling on the defence application pursuant to s 293(4), in light of the circumstances that existed or were then known, the jury may have considered the evidence sought to be tendered capable of establishing the following facts: the complainant had stated in her visa documentation that she would be working as a masseuse in Australia; the complainant had told police that she was working casually as a masseuse in Australia; the complainant used the address of the Ginza Club as her address on her visa documentation; the Ginza Club was a registered brothel; the complainant was employed at the Ginza Club under a particular name (shown on the work shifts emails); the Ginza Club's advertised services including "full service", "girlfriend experiences" and "porn star experiences"; the complainant had posed for a photograph in her underwear that was used on the website for the Ginza Club; the complainant was advertised by the Ginza Club as offering a "GFE" or "girlfriend experience"; the complainant met Mr Cotterell through her work at the Ginza Club; the complainant worked shifts at the Ginza Club prior to and during the period of the indictment; and the complainant worked shifts at the Ginza Club following appointments in which it was alleged that Counts 9, 11 and 12 had allegedly been committed, wherein it had been alleged that the complainant was sexually touched and/or sexually assaulted. (The Crown points out that the first two of those matters (the visa documentation and statement to police) were not pressed by defence counsel at the trial (16/3/21; T 553).)
The applicant submits that the second judgment of Woodburne SC DCJ, in failing to grant leave pursuant to s 293(4), resulted in an error or irregularity of such a nature and degree that it could realistically have affected the jury verdicts in the second trial.
The applicant says that the evidence from the Ginza Club demonstrates that the complainant worked shifts at the Ginza Club prior to and during the period of the indictment, in January through to March 2019. The applicant says that the complainant's work at the Ginza Club, in the hours immediately after the commission of the alleged offences on 7 March 2019, 21 March 2019 and 28 March 2019, is part of a "connected set of circumstances"; i.e., it is part of the immediate "aftermath" of the alleged offending in Counts 9, 11 and 12, as well as occurring during the commission of all of the alleged counts on the indictment.
Reliance is placed in this regard on Adams v R [2018] NSWCCA 303 (Adams v R) where Hoeben CJ at CL, Campbell and N Adams JJ agreed (at [148]) that false complaints of sexual assault by the complainant, concerning a different accused, only days before the alleged subject offences, was evidence of the relevant complainant's sexual experience at "about the time" of the commission of the alleged offences. Reference is also made to the statement of Basten JA in GEH v R [2012] NSWCCA 150 (GEH) at [11] that the focus of the requirement as to the relevant event forming part of "a connected set of circumstances in which the alleged prescribed sexual offence was committed" is the circumstances in which the alleged offence was committed.
It is submitted that, similarly to the case of R v Morgan (1993) 30 NSWLR 543 (Morgan), the evidence that the complainant worked as an escort within hours of the commission of the alleged offences in Counts 9, 11 and 12 could have been seen by the jury as making the occurrence of the offence less likely and should have been held to have formed part of the context in which the alleged offence was committed and against which the complainant's evidence might reasonably be evaluated.
The applicant argues that the requirements of s 293(4)(ii) (i.e., as to a connected set of circumstances) are also here satisfied (by the evidence available in this matter, the themes in the complainant's and the Crown's evidence), in light of the complainant's work as an escort and the alleged offending.
Accordingly, it is submitted that the evidence sought to be tendered by the applicant with leave, fell within the ordinary meanings of each of ss 293(4)(a)(i) and (ii).
The applicant argues that the evidence sought to be tendered was relevant to facts in issue at the trial and had probative value. The applicant submits that the evidence provides contextual background to the evidence given by the complainant in regard to, among other things: the complainant's ability to discern whether and how she was in fact allegedly touched or penetrated by the applicant in relation to various counts on the indictment; the complainant's ability to communicate or express, verbally or non-verbally, consent or concerns in relation to the alleged offending conduct of the applicant.
The applicant says this may also have bearing on the competing evidence as to the complainant's level of English; the level of purported distress caused to the complainant by the alleged offences by the applicant, in light of the complainant attending work at the Ginza Club after the occurrence of alleged offences in Counts 9, 11 and 12; the theme of the "vulnerability" of the complainant, in the evidence of the complainant and the submissions of the Crown, in light of her purported limited English and her characterisation of herself as a person who did not understand the cultural differences of Australia in regard to massage; and the complainant working in Australia "casually" as a "masseuse", in circumstances where her evidence was that she did not understand what was culturally appropriate in Australia in regard to massage treatment.
The applicant emphasises that the exclusions from the prohibition in s 293(4) are to be construed liberally (referring to the observation of Leeming JA (with whom Walton J agreed) in Chia v R [2021] NSWCCA 51 (Chia v R) at [56]-[57] and Harrison J (as his Honour then was) in Taylor v The Queen (2009) 78 NSWLR 198; [2009] NSWCCA 180 at [89]); and the applicant also refers to R v Charbel Rahme [2004] NSWCCA 233 (R v Charbel Rahme) at [65] where James J (with whom Sully and Hulme JJ agreed) said (in relation to the predecessor section) that a fair consideration of the assessment of probative value under that section has to be made "of the adumbrated evidence in the event that it were to be accepted by the jury''.
The applicant submits that, in considering the balancing test as to whether the probative value of the evidence outweighs the distress, humiliation or embarrassment the complainant might suffer, in light of the potential to affect the jury's considerations of a proper and informed picture of the complainant, the context of the alleged offending and the impact of both upon assessments of the complainant's credibility, the probative value of the evidence is high in the present case.
In this regard, the applicant points to evidence given by the complainant concerning the following issues in dispute in the trial: the complainant's comfort or discomfort in removing her clothes in front of strangers of either sex; her denial of the alleged events of 14 February 2019; the complainant's level of physical perception of whether and how she was allegedly touched or assaulted by the applicant; her alleged distress at the offences; the theme in the complainant's evidence and the Crown's address in relation to the complainant's inability to express herself during the commission of the alleged offences; and the complainant's denial of working following her appointments with the applicant on 24 January, 5 March, 7 March, 21 March and 28 March 2019 (when the applicant says that the records of the Ginza Club appeared to show that she had in fact worked on those dates).
The applicant submits that the application under s 293(4) was not one seeking to cause the mischief that s 293 was introduced to address (namely, as described by Simpson J (as her Honour then was) in R v Burton [2013] NSWCCA 335 at [70] evidence being led of the "general sexual willingness of the complainant" in the context of cases where consent was at issue). The applicant notes that Leeming JA in Chia v R observed (at [64]) that the relevant distress, humiliation and embarrassment is that over and above that which will inevitably occur; his Honour there also observing (at [65]) that the fact that complainants' identities cannot be revealed by reason of statute, and that their evidence is given by an AVL link to a closed Court, tends to diminish the distress, humiliation and embarrassment that the complainant would suffer.
Reliance is also placed on the observations by James J (with whom Sully and Hulme JJ agreed) who said in R v Charbel Rahme at [60], in reference to evidence as to the complainant working as a "prostitute" around the time of the alleged offences that "[i]f, in the circumstances of the particular case, a choice has to be made between that degree of discomforture of the complainant and the potential conviction of an innocent accused, there then can be, surely, no doubting [sic] all of where the preponderant balance should lie".
It is said that her Honour also erred in refusing to permit the Basha enquiry on the basis that to do so would contravene s 293, that it would have no utility and was a waste of time. The applicant says that it would not contravene s 293, in that it is conducted in the absence of the jury and would not result in admission of the evidence in the jury trial. Further, it is submitted that the utility would have been great in that it would have allowed for the scope and detail of the evidence of the complainant and Mr Cotterell to have been clarified; and would have allowed further evidence to be obtained (in order more fully to inform the balancing test). (The applicant says that the distress, humiliation and embarrassment caused to the complainant would have been limited to the greatest extent possible.)
In the alternative (under Ground 1(b)), it is submitted that, when the entirety of the evidence in the trial is considered, there is a real risk that the trial miscarried, and the applicant lost a real chance of acquittal, by reason of exclusion of the s 293 evidence, because the jury was unable properly to assess the reliability and credibility of the complainant. It is submitted that this can be seen in the limitations on cross-examination of the complainant and Mr Cotterell, the subsequent defence closing submissions, the themes in, and casting of, the complainant's evidence in the Crown case, and the Crown's closing address, and the implications that such evidence would have had on the jury's consideration of the complainant's reliability and credibility.
The applicant submits that the Court should make the assessment under Ground 1(b) on the basis that the jury accepted the evidence sought to be led pursuant to leave under s 293(4). Consideration should also be given to how the jury may have considered the applicant's evidence, and in particular his evidence concerning 14 February 2019, the Google Translate messages in Ex L, and the text messages in Exhibits G and H, in light of the Liberato direction given, and how the jury may have considered the complainant's evidence, in light of the direction from the trial judge as to the requirement for the jury to be satisfied of the complainant's reliability and credibility beyond [a] reasonable doubt, before the applicant could be found guilty.
It is submitted that evidence of the complainant working as an escort in a registered brothel, during the indictment period, would be important evidence for the jury to weigh, in light of cross-examination that may have explored whether the complainant would have in fact been "entirely incapable" of expressing herself as claimed, in light of the nature of her work and the negotiation inherent within such work, surrounding the boundaries of consent.
Further, the applicant submits that the jury may have also viewed the complainant's evidence as to her lack of ability to discern whether the applicant was touching or inserting his finger into her anus, and what had touched her anus in Count 12, differently in light of evidence of her working as an escort in the period of the indictment. Evidence as to the nature of the complainant's work may also have had bearing on the jury's consideration as to whether the complainant would have in fact done what they would have expected her to have done, when considering the issue of complaint pursuant to the directions given by the trial judge, particularly in light of her attendance at her workplace after the commission of the alleged offences in Counts 9, 11 and 12.
The applicant argues that the challenge to the complainant's evidence that she was not comfortable being in her underwear in the presence of strangers of either gender, in the context of her being advertised on the website of the Ginza Club in her underwear, and in light of her work as an escort, may also have been viewed very differently by the jury. Similarly, the complainant's denial of working following some of the appointments with the applicant, had the record of her shifts at the Ginza Club been able to be tendered and put before the jury, may also have affected the jury's deliberations.
The applicant says that the jury's consideration of the complainant's evidence as to why she continued to attend on the applicant for treatment, despite the alleged offending, may also have been assessed in a different light by the jury, had they been informed of the nature of the complainant's work as an escort, and that the complainant had worked as a masseuse in Australia, particularly in regard to her evidence about her lack of understanding of the culturally appropriate massage treatment in Australia.
It is submitted that a review of the record of the second trial reflects that the error said to have been made by Woodburne SC DCJ in the first trial not only had the capacity for practical injustice, but was capable of affecting the result of the applicant's second trial. It is submitted that the failure to admit the evidence under s 293(4) resulted in, or constituted, sufficient prejudice to the applicant that a "real chance" of acquittal in regard to the offences on the indictment was lost, resulting in a miscarriage of justice.
The applicant accepts that leave is required pursuant to r 4.15 in the absence of an application pursuant to s 130A in the second trial, to have the earlier s 293 judgments revisited. The applicant submits that, if satisfied as to Ground 1 (a) or (b), then leave under r 4.15 should be granted (reference here being made to the decision of Kirk JA in Park v R [2023] NSWCCA 71 at [104] (with which Walton and Sweeney JJ agreed)) (AT 13.17-31).
As to the application of r 4.15 and the proviso, the applicant (noting Cook (a pseudonym) v R [2022] NSWCCA 282 per Adamson J as her Honour then was, with whom Bellew J agreed) submits that the evidence would have had a substantial bearing on the consideration of the jury in the second trial, emphasising the need for the jury to be satisfied that the complainant was a credible and reliable witness to find the applicant guilty beyond reasonable doubt.
The applicant says that the jury was not able to see how the complainant would have responded to the evidence sought to be tendered (citing Leeming JA (with whom Walton J agreed) in Chia v R at [70] - [71]) and it is submitted that the evidence sought to be led, tendered and put may well have had a bearing on the jury's consideration of the credibility and reliability of the complainant, and that, in all the circumstances, the possibility cannot be excluded beyond reasonable doubt that the applicant was denied a chance of acquittal, which was fairly open to him, as a result of refusal of leave pursuant to s 293(4) (see Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou) at [15]; GEH at [85]).
The applicant accepts that if he succeeds on Ground 1 it will be for the Court to determine whether to order a re-trial, or whether instead, verdicts of acquittal ought to be entered.