Booth v R

Background

1. On 12 April 2021, the applicant was arraigned before a jury panel and his Honour Judge Weber SC on an indictment that contained four counts, all alleged to have been committed on Sunday, 11 August 2019. The first count charged the applicant with sexual touching contrary to s 61KC(a) of the Crimes Act 1900, specifically touching the victim's vagina. The second count charged the applicant with one count of having sexual intercourse with the victim, specifically oral sex without consent, contrary to s 61I of the Crimes Act. The third and fourth counts also charged the applicant with having sexual intercourse with the victim without her consent, being allegations of vaginal and anal penetration respectively.
2. The applicant pleaded not guilty to all four counts. The trial proceeded. On 22 April 2021, the jury returned verdicts of guilty on the first two counts and not guilty on the other counts. Also, before the Court, but not before the jury, were three related charges of assault that had been included on a certificate produced in accordance with s 166 of the Criminal Procedure Act 1986 (the "s 166 certificate").
3. On 18 June 2021, his Honour convicted the applicant of two of the three assault offences on the s 166 certificate and imposed an aggregate term of imprisonment of 4 years and 2 months with a non‑parole period of 2 years and 6 months for all of the offences. The applicant will be first eligible for release on parole on 2 August 2022. There is no application for leave to appeal against sentence.
4. Neither the s 166 certificate nor any other document concerning the charges included on that certificate were provided to this Court. At the hearing of the appeal, it was accepted that the scope of the appeal did not extend to the two assault charges on the s 166 certificate of which the applicant was convicted. It was explained that, in the event the appeal succeeded, the applicant would then seek to challenge those convictions (presumably pursuant to ss 5AD and 5AA of the Criminal Appeal Act). Given that I would dismiss the appeal, it is not necessary to consider that further.
5. By the operation of s 578A(2) of the Crimes Act, the publication of the identity of the victim ("AR") or any information that identifies her is prohibited (other than in an official law report of the proceedings such as this judgment: Crimes Act s 578A(4)(d)).

The Evidence

1. The charges against the applicant arose out of the attendance by AR and her friend, Michelle Borg, at the applicant's mother's townhouse sometime on the weekend of Saturday 10 and Sunday 11 August 2019. While AR was present, she, the applicant, the applicant's mother (Donna Booth), and most likely Ms Borg, consumed "ice" (methylamphetamine) and marijuana. Not surprisingly the sequence of events testified to by the various witnesses was generally unclear. The applicant did not give evidence at the trial and did not participate in an interview with the police. However, based on the cross‑examination of AR, it is apparent that the sexual acts the subject of the first two counts on the indictment were not disputed, but the acts the subject of the third and fourth counts were. In relation to the first two counts the issues were whether AR consented to those acts and, if she did not, whether the applicant knew she did not consent (Crimes Act, ss 61KC, 61I).

AR's Evidence

1. The victim, AR, was born in June 1983. She was 37 years of age when she gave evidence before the jury. AR told the jury she was born in Russia and "came to Australia about 22 years ago" which must have been when she was 15. She said she was "confident" with English although some aspects of her answers suggest that she did not comprehend everything that was put to her in cross‑examination.
2. AR told the jury she had been friends with Ms Borg for three years. She said that on 10 August 2019 they spent the day together. She said that after dinner they drove to Ms Booth's townhouse. AR said she had not been there before. After they had entered, she said Ms Borg went upstairs, but that she stayed downstairs speaking to a male she had just met, who was not the applicant. AR said that after "[m]aybe 15 minutes" Ms Borg came downstairs with the applicant. The applicant placed "ice" and marijuana on a coffee table which they all consumed. AR said that Ms Booth came into the room also carrying a pipe and consumed marijuana and "ice".
3. AR said that it was the second time she had ever tried marijuana and "ice". She said she "felt quite sick, quite nauseous and very unwell". AR followed the applicant and the other male outside to buy cigarettes but said that they started running and yelling "[c]ops, cops, cops" and so she turned back towards the townhouse. AR said that, while she was walking down an alleyway towards the townhouse, she tripped and was on the ground for "[p]robably 15 to 30 seconds". She said she was "feeling quite dizzy and nauseous".
4. AR said that she returned to the loungeroom of the townhouse and spoke with Ms Borg, Ms Booth, the applicant, and the other male. AR said that she experienced a "really sudden kind of unwell feeling" and went upstairs and lay down on a bed and fell asleep. She had her car keys and phone with her. When she woke up she noticed they were missing. She went downstairs and made herself coffee before returning upstairs and noticed Ms Borg was asleep but the applicant was not there. She returned downstairs and looked outside to discover her car was missing. AR returned inside, and with Ms Borg and Ms Booth's assistance, attempted to contact the applicant. AR said that after an hour or two they spoke to him but he denied taking the car.
5. AR said that she and Ms Borg waited for the applicant to return with her car and helped clean the house while they waited. AR said that the applicant returned to the townhouse after dinner. He came up to her and said, "what are you going to do now bitch, you can't do anything". AR said this made her angry and she considered picking up a knife but she "didn't touch it". AR said that she went back upstairs as she was "quite distraught" and then had a "really sudden unwell feeling". She said she then lay on the bed and "passed out".
6. AR then described being sexually assaulted by the applicant as follows: "Q. What was the next thing you were conscious of? A. Okay … okay. The next thing - the next thing I - is difficult to talk about it again but I'll try. The next thing I felt Shane Booth touching my - sorry, touching my vagina and touching my breasts and I felt also my - my dress being unzipped but at this stage I was quite numb, and I could not speak, couldn't move, I could hear but I could not defend myself at that stage. Q. How do you know it was Shane? A. I recognised his voice. Q. And what did he say? What did you hear or his voice? A. Yeah he - he was calling me names and saying to me 'You're mine now bitch' and just calling me names non-stop. So yeah. Q. When he - how did he touch your vagina? A. Okay he took down my stockings. I believe that he used his hand. And I believe he used his penis as well and during that I was passing in and out throughout the night probably I would say twice, but then I could - I remember him speaking and also him and Melissa having argument because Melissa at some point did wake up through the night and started to scream at him to leave me alone. But he told her to shut up bitch I'm going to tie you up and kill you if you - if you're not going to shut up pretty much you know. He told me exactly the same thing. He was talking me we didn't speak to him because I could not speak at that stage. I was just lying there like a vegetable literally, completely numb and just I could only moan like 'mmmm' I could not speak and I felt really helpless. I felt yeah it was very - very bad. So sorry yep. Q. If you can go through and step by step from that moment that you were conscious what you felt, what you heard? A. Okay. Step by step. Okay. Can you give me a moment, just one second, I'm just catching my breath. I'm just a little bit - one second. As easy as I thought it as going to be to talk about, this is still hard. I do apologise for that. So first time when I was awake, I felt him taking down my stockings and the zip of my dress, I felt him touching my breasts underneath the bra, I felt him touching my vagina, and at some stage he, basically, turned me around to the right-hand side and he forced me to - for my mouth to be open to - sorry, to produce oral sex on him, but it was done by force, because once again my jaws were quite shut, but he somehow undone them - not undone, but make sure that it was open, and at that stage he was calling me names again, and at some point he also slapped me quite hard on this side, so it will be on the left-hand side, because I was facing the right, and he began to choke me with his hands, so it was struggling to breathe. That's what I remember. And the second time, I remember when Melissa was screaming at him to leave me alone, but at that stage I could feel that I'm completely undressed and - not completely undressed. My zipper on my dress was quite undone, all the way to the waistline, and my stockings were off. I could feel, physically, what's been happening to me, basically, at that stage, and then I passed out again. … Q. I'm sorry, if you could go through step by step what it was that you felt him doing. A. Yeah. Okay. So once again, I felt his hands touching my vagina, I felt his hands touching my breasts, pretty much touching me everywhere. I also felt his penis enter my vagina, and I believe that my vagina and anus was penetrated at the same time, but I could not tell you for sure how it's been done. Q. When you say your vagina and your anus were penetrated, how long did that go on for that you were aware of? A. It wasn't - I could only recall when - the time that I was awake.
7. An objection was then raised but withdrawn. AR was asked for how long her vagina and anus were penetrated and she replied, "I believe several minutes, yeah, that I can recall, but not too long after I did pass out again". AR said that as she was passing out she felt pain in her vagina, distress, "really helpless" and stated "I don't know why I could not move".
8. The description in this evidence of the applicant touching AR's vagina was the basis for count 1 on the indictment. AR's description of forced oral sex was the basis for count 2. Her description of having her vagina and anus penetrated were the basis for counts 3 and 4.
9. In these passages AR describes passing out twice. She said that after the second time she passed out, she woke up the next morning with her dress unzipped, her underwear missing and her stockings around her knees. Ms Borg was sleeping but the applicant was not in the room. AR said that a speaker was placed between her and Ms Borg "making really strange animal noises" and the door to the room in which she was sleeping was tied up with a vacuum cord. AR said she untied the cord and went downstairs. She said that she told Ms Booth and the applicant that "I'd been sexually assaulted but I didn't get any response." AR said that she and Ms Borg left and that, as she left, she took some photographic identification belonging to the applicant. She later provided it to the police.
10. AR said she took a bus and then walked to the house of a friend in Rouse Hill, Mr Andrew Leonard. She said that she told him she had been raped and robbed. He then drove AR and Ms Borg to a police station and then to Blacktown Hospital. (The officer in charge confirmed that AR attended Castle Hill Police Station on the evening of Monday 12 August 2019.)
11. In cross‑examination, AR agreed that she told nursing staff at Blacktown Hospital that she had been held "captive" for two days. However it was pointed out that she had returned to the townhouse after the applicant and the other male yelled "cops" and that for a significant period of time over that weekend the applicant had not been at the townhouse and Ms Booth did not prevent her leaving. AR repeatedly agreed that she was significantly affected by the drugs she consumed and that they had affected her judgement and memory. She agreed that the sequence of events was difficult to recall. AR agreed that, in her evidence‑in‑chief, she said she had only thought of picking up a knife when she was angry in the kitchen, but in cross‑examination she agreed that she in fact picked up the knife. AR reiterated that she undertook housekeeping (including cooking for the applicant) and that while she was being assaulted the applicant said to Ms Borg when she tried to intervene "[s]hut up bitch. I'm going to tie you up and rape you or kill you."
12. As noted, because the applicant did not give evidence, the real factual contest only emerges from considering what was put and not put to her in cross‑examination. Hence, it was suggested to AR that the applicant placed a speaker between her and Ms Borg to make them leave. It was put to AR that she did not tell Ms Booth that she had been sexually assaulted, a matter she rejected. AR agreed that she followed the applicant upstairs a short time after the confrontation in the kitchen and within a short period she, Ms Borg and the applicant were all in his bedroom. She disagreed that her mood had changed from being angry to friendly. She said she was distressed and her mood was "much lower than anticipated". AR agreed that in the bedroom Ms Borg talked for a period but said that she (ie, AR) went to sleep first and believed Ms Borg fell asleep afterwards.
13. The cross‑examination then continued as follows: "Q. At that point, Mr Booth was on the bed and you were also on the bed? A. I cannot recall this at this stage who got in the bed first, but I believe it was me who went to sleep first, and then Melissa followed and then Shane Booth made himself comfortable afterwards. Q. All I want to say is that at some point after Melissa has talked about stuff, or whatever, and gone to sleep, there's a point where you are on the bed and Mr Booth is on the bed? A. That is correct, yes. Q. Ma'am, I raise this with you, and you can agree or disagree, and that is that Mr Booth started rubbing your arm and you smiled at him? A. I smiled at him? I disagree. Q. And that Mr Booth asked you, 'Do you want to go into another room, into the spare room to have a sleep' if you didn't want to be there with him? A. Disagree. I disagree. Q. Can I raise this with you, ma'am, that Mr Booth then commenced to touch one of your breasts? A. That is correct, yes. Q. And that you assisted in partly removing your bra? A. I disagree with that. I disagree to that, yeah. Q. Ma'am, can I raise this with you, that Mr Booth then got off the bed and he stood off the bed, and you were on the bed, and that you then gave him oral sex? A. That is correct, yes, but it was not consensual. Q. I understand that, ma'am. A. Yep. Q. And that Mr Booth then said words to you, something to the effect of, 'Well, you're my bitch now'? A. That is correct, yes. Q. One thing happened before that, my apologies, and that is he started to rub you on the outside of your stockings or pants around the genital area? A. That is correct, yes. Q. And it was after that that the oral sex occurred? A. That is correct, yes. Q. Ma'am, and what I'm raising with you is that it may be something that you regret, it may be something, looking back on it, it makes you cranky, but at the time you consented to those things occurring? A. That's correct, yes." (emphasis added)
14. After this it was put to AR that the applicant did not make a threat to Ms Borg and did not take off her stockings, pants or underwear. AR disagreed. It was also put to her that there was no occasion when the applicant placed his penis or anything else in her vagina or anus. Again she disagreed.
15. It is regrettable that there was no objection to the emphasised question in the extract in [20] containing, as it did, four contestable propositions namely: (i) that there was something that AR regretted, (ii) something that made her cranky and that she consented to "those things" being (iii) the rubbing of her genital area and (iv) oral sex. The Crown Prosecutor attempted to re-examine AR on the issue of consent, but the questions were rejected by the trial judge who concluded that the answer to the question was "an unequivocal admission as to consent". It is not necessary to determine whether that ruling was correct, although whether or not a single answer was ambiguous was not determinative. Re-examination without leave is permitted in respect of "matters arising out of evidence" given by a witness (Evidence Act, s 39(a)). The "evidence" is not confined to a single answer. In this case, at least on its face, the evidence of AR concerning consent was contradictory. In any event, the task for this Court is to consider the entirety of AR's evidence and not a single answer.

Donna Booth

1. Ms Booth's evidence was to the effect that AR and Ms Borg came to her home at around 11pm one night and left at around lunch time the following day. In cross‑examination she agreed that they arrived at 11pm on Friday, 9 August 2019 and left at around lunch time on Saturday, 10 August 2019, but in re‑examination she said she was not sure if they arrived on a Friday, Saturday or Sunday. Ms Booth said that she had known Ms Borg for "probably ten years" as she was the daughter of a friend, although she did not recognise her. Ms Booth said that AR and Ms Borg arrived with her son and his friend, Michael. She said that she, AR, her son and Michael consumed drugs over the course of "an hour, an hour and a half" and that Michael left and the other three went upstairs. She said that about 10 minutes later she went upstairs to her room which was next to her son's room, although the door to his room was closed. She could hear Ms Borg and her son speaking but not what was being said. Ms Booth said that after about 10 to 15 minutes she heard the door to her son's room open and footsteps, so she came out of her room. She went downstairs to find that her son was awake. She said that, after a brief conversation, he left the home to seek Michael.
2. In cross‑examination Ms Booth said that her son left her home around 1.30am and returned with Michael about two hours later. She said that he left again around 15 minutes later, being approximately 4am or 5am and did not return until around 2pm that afternoon, which was after AR and Ms Borg had left. In chief, Ms Booth said the applicant had returned much later, namely around 10am before leaving again with Michael, and she did not see him go upstairs when he returned. Ms Booth also said that, at around 3am, AR came downstairs and requested a cigarette from a friend of Ms Booth, but Ms Booth told him to refuse and AR returned upstairs. Ms Booth denied that AR said anything to her that "something untoward had happened".

Melissa Borg

1. Ms Borg's evidence‑in‑chief was especially confusing with the Crown Prosecutor making repeated attempts to ascertain a sensible chronology of events from her. At no stage in either her examination‑in‑chief or cross‑examination was she asked about her own drug consumption or the consumption of drugs by AR. Ms Borg recalled first arriving at Ms Booth's townhouse at around 8.30pm at night although she could not recall which month this incident occurred. When she was asked what year it occurred she said it was "this year". In fact, Ms Borg gave evidence in April 2021, but the events the subject of the trial took place in August 2019.
2. Ms Borg stated that she and AR spent "a couple or two nights" at the townhouse and that she slept twice while she was at the house with "nine hours [or] more" between the two sleeps. Ms Borg said that about five hours before they left the townhouse, AR complained that the applicant raped her. Ms Borg said that AR said, "she couldn't open her eyes or move but she could feel and hear it".
3. Ms Borg said that when she first went upstairs to sleep she woke up with AR and the applicant in the room talking and that they all went downstairs and had something to eat before she returned to the room to sleep. Ms Borg said that AR stayed downstairs talking to some males who had arrived and that when she woke up AR was complaining that her "stuff … [had] gone missing in the house". Ms Borg said that by this time the applicant was no longer at the house and they used Ms Booth's mobile phone to contact him. She recalled that he said he would return in half an hour but did not do so. She and AR waited for hours for him to return and that in the meantime Ms Booth vacuumed the townhouse. Although in her evidence Ms Borg said the applicant returned ("[h]e came home"), she ultimately said that she and AR left the house and travelled to Mr Leonard's house before he returned. She recalled that AR told him she had been raped and Mr Leonard consequently drove them to the "hospital and the police station I think".
4. In cross‑examination Ms Borg agreed that, soon after their arrival, Ms Booth indicated they should leave, that only Ms Booth vacuumed the house and that, to her understanding, AR left the house because she could not locate her car. Ms Borg agreed that she did not see any sexual activity between the applicant and AR, that the applicant never threatened to tie her up and rape her, that AR did not undertake housework and that the applicant never sexually assaulted her.

Complaint Evidence

1. Mr Leonard said that some time at night, around the weekend of 11 August 2019, AR and Ms Borg arrived at his door. AR looked "dazed" and "in a bit of a state". He said that AR told him that she had been raped. He then drove them both to the police station. In cross‑examination he said that AR said that Ms Borg had also been raped.

Other Evidence

1. The Crown called Ms Mandy Ashton, who was "a clinical nurse consultant at the Forensic Medical Unit at Blacktown Hospital". Through Ms Ashton, the Crown tendered a record of the injuries to AR that were observed at the hospital and which included a 1cm bruise to the left outer eyebrow, which AR told the staff was from being slapped, a red mark on the inside of her mouth, which AR said was the result of oral penetration, and some abrasions to the palm of her right hand, which AR stated was the result of a fall. Ms Ashton said that she observed an area of redness around AR's vagina and that AR had said she was tender. Ms Ashton observed an area of redness and excoriated skin around the perianal area, but said that it could be the "result of trauma, inflammation or infection".
2. Ms Ashton took various DNA swabs and samples from AR. A senior forensic biologist gave evidence of the outcome of the DNA testing of those samples. A DNA sample from AR's right breast recovered DNA which was a mixture of at least two individuals, with the major contributor having the same profile as the applicant. A sample taken from the crotch and lower back of AR's stocking was subject to DNA testing using Y-STRs which can be applied to identify male DNA amongst "a lot of female DNA". This test revealed a profile matching the applicant, being a profile expected to occur in approximately 1 in 750 unrelated males in the general population. An anal swab from AR did not detect any male DNA. Male DNA was recovered from a low‑vaginal swab from AR but at "levels too low for further interpretation."
3. An agreed statement of facts recorded the result of a blood test of AR taken at Blacktown Hospital recording that she had the chemical components of marijuana and "ice" in her blood. The Crown tendered photographs of AR's clothing that included ripped stockings.

The Appeal

1. As noted, the sole ground of the appeal is that "[t]he verdict of guilty on Counts 1 and 2 was inconsistent with the verdicts of guilty on Counts 3 and 4 "and/or" was unreasonable and could not be supported having regard to the evidence".

Principles

1. To the extent that the ground of appeal contends the verdicts were inconsistent, in Martin v R [2020] NSWCCA 192 at [67] to [68], I summarised the principles applicable to a complaint that verdicts are inconsistent. I will not repeat that discussion other than to note two matters.
2. First, if there is a proper way by which an appellate court may reconcile the supposedly inconsistent verdicts, then the Court may conclude that the jury properly performed its function (Mackenzie v The Queen (1996) 190 CLR 348 at 368; [1996] HCA 35 at 367; "Mackenzie"), although there is also "a residue of cases … where the different verdicts returned by the jury represent … an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty" or "confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law"(Mackenzie at 368).
3. Second, there is no general rule that in cases where several offences depend upon the evidence of a single complainant, an acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that the complainant's credibility was undermined in respect of the counts upon which it has returned guilty verdicts (MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [35] and [89]; "MFA"). In MFA, Gleeson CJ, Hayne and Callinan JJ observed (at [34]): "[A verdict of not guilty] does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility."
4. Insofar as the ground contends that the verdicts were unreasonable having regard to the evidence, then the authoritative decisions concerning such a complaint are M v The Queen (1994) 181 CLR 487; [1994] HCA 63; "M v The Queen"; MFA; and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The relevant principles were summarised by McCallum JA in SM v R [2022] NSWCCA 13 at [4] which I adopt.
5. I will not repeat the discussion in M v The Queen (at 493), other than to note two matters. First, the relevant question is whether "upon the whole of the evidence it was [reasonably] open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". In this case, that means that the Court must focus on more than just a single answer by AR to a single question.
6. Second, "where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by [this] court is a doubt which a reasonable jury ought to have experienced" so that if the evidence "contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the [Court of Criminal Appeal] to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted" (M v The Queen at 494), then the appeal must be upheld. In this case the jury had the (considerable) advantage of observing the three principal witnesses, namely AR, Ms Booth and Ms Borg. As explained below, each of those witnesses had their difficulties.

The Applicant's and the Crown's Submissions

1. The applicant's submissions contended that it was not open to the jury to be satisfied beyond reasonable doubt that either the applicant knew that AR did not consent to the sexual activity the subject of counts 1 and 2 or that the applicant did not have reasonable grounds for believing that AR consented. It was contended that AR's narrative of events was substantially contradicted by the other witnesses. It was also submitted that, in the emphasised passage in [20], AR agreed that the sexual acts the subject of counts 1 and 2 had occurred with AR's consent "such that the Crown case must have left the jury with a doubt as to "[AR's] evidence".
2. The applicant also submitted that the DNA evidence did not support AR's "more serious assertions", presumably being counts 3 and 4 and that "ought … [to] have caused the jury to have a doubt as to any of her allegations". The applicant's submissions continued: "54 In these circumstances, returning a verdict of guilty on the first two counts, within short temporal compass of other counts on the indictment where verdicts of not guilty were entered, was unacceptably inappropriate. This is because the jury had rejected the account of the complainant as to her in fact consenting to the first sexual acts on the indictment but the acquittal on the other counts rises to the point of showing the jury failed to apply the criminal standard of proof to each and every count before them. The submission on this point is strengthened by again considering that the question of the reliability of the complainant could not, on the evidence before the jury, be confined to the question of any individual count having regard to proof beyond reasonable doubt."
3. The Crown's submissions emphasised that this ground of appeal had to be considered in the context of what was in issue in the trial on the first two counts, which was not that the sexual acts did not occur but instead whether AR consented to them and, if she did not, whether the applicant knew she had not consented, was reckless as to that lack of consent or otherwise did not have reasonable grounds for believing she consented. The Crown submitted that the emphasised answer in [20] had to be considered with the other evidence of AR repeatedly denying that she consented, as well as the evidence of the (immediate) complaint to Ms Borg and Mr Leonard. As to the applicant's knowledge of AR's lack of consent, it was contended that the jury could be well satisfied of that element given the evidence as to the context in which the sexual acts occurred, namely after AR fell asleep and had consumed drugs as well as the evidence suggesting force was used on her. The Crown submitted that the verdicts could be reconciled based on the relative uncertainty associated with AR's description of the acts the subject of counts 3 and 4. In relation to the various inconsistencies between AR's evidence and that of other witnesses, the Crown pointed to difficulties with the evidence of Ms Booth and suggested that Ms Borg was asleep during the relevant events.

Consideration

1. Three matters should be noted in considering this ground.
2. First, as already noted, in considering whether AR agreed that she consented to the acts the subject of counts 1 and 2, the Court is required to consider the "whole of the evidence" and not just the emphasised answer to the question set out in [20]. The question contained four contestable propositions and the answer was capable of amounting to an agreement with some, but not all, of them (eg, that AR did things she regretted and that makes her "cranky" but not necessarily that she consented to oral sex and the rubbing of her vagina). More importantly, the balance of her evidence was unequivocal to the effect that she did not consent. She expressly stated so five answers previously ("but it was not consensual"). Her description of the events in chief was entirely inconsistent with any suggestion that she consented. Further, as noted by the Crown, she made immediate complaint of rape to Ms Borg and then to Mr Leonard (and, on AR's evidence, to Ms Booth).
3. Any doubt that might be raised about whether AR consented to the sexual acts the subject of the first two counts on the indictment by the emphasised answer in [20] (or the evidence generally) was at most only a doubt that the jury's advantage in seeing and hearing her evidence was capable of resolving (M v The Queen, supra).
4. Second, I do not consider that the verdicts were relevantly inconsistent. The true factual issue in dispute with both counts 1 and 2 was whether AR consented and whether the applicant knew of (or was reckless as to, etc) her lack of consent. With counts 3 and 4 there was a contest about whether the sexual acts occurred at all. The evidence given by AR is summarised above. There is no doubt that her recollection of events and the order in which they occurred was affected by fatigue and drug consumption. Her evidence of the sexual acts the subject of counts 3 and 4 had a degree of uncertainty associated with it ("I believe that my vagina and anus was penetrated at the same time, but I could not tell you for sure how it's been done": see [13]; "not too long after [being penetrated] I did pass out again"). Further the DNA evidence and physical examination supported the Crown case on counts 1 and 2 so far as the occurrence of the sexual acts were concerned but provided little or no evidentiary support for counts 3 and 4.
5. While there were a number of paths of reasoning by the jury to its verdicts, one of those was that identified in the above passage from MFA, namely that the jury accepted that AR was generally truthful and reliable but required "something additional" before being satisfied beyond reasonable doubt that the relevant sexual contact occurred. In the case of counts 1 and 2, that "something additional" was not required because the sexual acts were not in dispute and the alleged sexual contact was to an extent supported by the DNA evidence. In the case of counts 3 and 4 there was not "something additional" to AR's evidence. The verdicts did not involve any "affront to logic" (Mackenzie, supra).
6. Third, as noted, the applicant sought to rely on what were said to be "substantial contradictions" between AR's evidence and that of other witnesses in support of this ground. Although the submissions do not descend to identifying what those contradictions were it seems that they included AR's evidence that Ms Borg tried to intervene while AR was being sexually assaulted, and the applicant abusing her - something that Ms Borg denied; AR's evidence that, while she and Ms Borg waited for the applicant, they helped clean up the townhouse and interacted with Ms Booth - something denied by Ms Booth and Ms Borg; AR's description of having been effectively detained at the townhouse, which Ms Borg did not accept; and AR's evidence that she complained of rape to Ms Booth, which Ms Booth denied.
7. As noted, each of the witnesses had their difficulties. Both AR and Ms Booth, and most likely Ms Borg, consumed drugs including "ice". Ms Booth had an obvious hostility towards AR and loyalty to her son. Ms Borg's evidence lacked any sensible cohesion. The chronology of events testified to by all three witnesses, differed from each other. Ms Booth's evidence was inconsistent with Ms Borg's evidence and could not be reconciled with what was put to AR on behalf of the applicant. She only placed the accused and AR in a bedroom together once and that was for a short period within a few hours of AR arriving at her townhouse. It was not put to AR that she was mistaken about the general time that the sexual contact the subject of the first two counts occurred. It was not suggested to AR that it occurred on the very first time she slept in the applicant's bedroom which, according to Ms Booth, was only a few hours after they first arrived and only for a period of around 10 or 15 minutes.
8. It is the case that Ms Borg said she must have slept through any sexual assault of AR and that she was not abused by the applicant for attempting to intervene to stop him assaulting AR. According to her evidence, she slept through the sexual acts the subject of counts 1 and 2 as well as the applicant saying to AR "[w]ell, you're my bitch now" (see [13] and [20]). Overall, there is no reason why the jury (or this Court) should have preferred Ms Borg's evidence to that of AR. That said, it can be accepted that there were some difficulties with AR's account. To say that she was detained was on any view an overstatement, although, as the Crown noted, AR was without her car and car keys and at one point on her account there was a cord tied around the door to the bedroom where she awoke after the assault. AR's description of a friendly encounter with Ms Booth and assisting her in cleaning up the townhouse seems unlikely.
9. This ground is best resolved by identifying the factual issues in dispute and the evidence directed to that dispute. I have already accepted that it was reasonably open to the jury to find that AR did not consent to the sexual acts the subject of the first two counts. On AR's description there was nothing that she did in the circumstances surrounding those acts that could have provided any reasonable basis for a belief on the part of the applicant that she consented. It was not disputed at the trial that AR consumed "ice" and marijuana. AR said that she just woke up and was touched by the applicant and forced to perform oral sex on him. It was never suggested to her that she had not fallen asleep and then woke up. AR said she was slapped and choked. It was put to her that she was not choked but it was not suggested that she was not slapped. The medical evidence supported AR's evidence that physical force was applied to and around her face. As noted, it was common ground that after the oral sex was performed the applicant said to AR "[w]ell, you're my bitch now". While aspects of AR's account were disputed, it was never suggested to her that she said or did anything to indicate that she consented to the sexual contact beyond smiling at the applicant while he rubbed her arm, a matter she denied (see [20]). As noted, Ms Borg gave evidence confirming that AR made an immediate complaint of rape to both Ms Booth and Mr Leonard.
10. The trial judge directed the jury on all three circumstances in which a person is taken to know that an alleged victim does not consent to sexual activity, in s 61HE(3) of the Crimes Act, specifically knowledge of lack of consent, recklessness as to a lack of consent, and not having reasonable grounds for believing that the alleged victim consented. In relation to the sexual acts the subject of counts 1 and 2, it was certainly reasonably open to the jury to accept that AR did not smile when the applicant rubbed her arm, and otherwise reasonably open to the jury to conclude that AR did not do or say anything to indicate consent. When that is considered, along with the undisputed evidence of drug consumption which was known to the accused, the apparently undisputed slap to the face which was supported by the medical evidence, the undisputed evidence of the abusive comment directed by the applicant to AR after oral sex occurred, the nature of the acts themselves and the circumstances in which the applicant and AR met, I consider that it was, at the very least, reasonably open to the jury to conclude that the applicant did not have reasonable grounds for concluding that AR consented to the sexual activity.
11. I would grant leave to raise this ground and dismiss it.

Proposed orders

1. I propose the following orders: (1) Leave to appeal against conviction be granted. (2) Appeal dismissed.
2. HAMILL J: I have read the draft reasons for judgment circulated by Beech Jones CJ at CL and Justice N Adams' concurring note. I agree with their Honours that the appeal against conviction must be dismissed. My reasons are largely encapsulated by the Chief Judge's reasons and, having reviewed the record of the trial, I have reached the same factual conclusions as his Honour and N Adams J.
3. Counsel for the applicant analysed the evidence adduced at trial carefully and helpfully in his attempt to persuade the Court that the guilty verdicts on counts 1 and 2 were unreasonable and unable to be supported having regard to the evidence. One aspect of the asserted unreasonableness was that the guilty verdicts on counts 1 and 2 were "inconsistent" with the acquittals on counts 3 and 4. A second aspect of the argument was that the answer to a single question in cross-examination ought to have led the jury to have a reasonable doubt as to the issue of consent in relation to counts 1 and 2. A third aspect of the argument was that the quality of the evidence of the complainant and other witnesses called in the prosecution case was such that there was a doubt about the applicant's guilt. I agree with the conclusions and factual reasons provided by the Chief Judge as to why each of those arguments cannot be accepted. It is unnecessary to attempt to summarise or distil the relevant principles. They are well established by any number of High Court decisions. [1]
4. As to the assertion of inconsistency, and as the Chief Judge has demonstrated, the issue before the jury on counts 1 and 2 was different to the one litigated in relation to counts 3 and 4. In relation to the first two counts, the issue was whether the complainant consented to sexual acts that were admitted by the applicant and whether the applicant knew she did not consent (or was reckless as to consent). In relation to the third and fourth counts, the acts of sexual intercourse particularised by the prosecution were in dispute.
5. One factual matter upon which there was little doubt was that the parties, and especially the complainant, were well affected by drugs at the time of the events. This was a matter of significance in relation to the discordant issues arising under each count. In respect of counts 1 and 2 it had relevance to the issue of consent and, potentially, recklessness. The complainant's level of intoxication was a matter touched upon in the summing up, and the trial Judge reminded the jury that the Prosecutor relied on the matter to prove that the complainant did not consent. The Judge also directed the jury that the intention could be proved if the evidence established that the applicant was reckless as to whether the complainant consented. The applicant's knowledge of the complainant's level of intoxication was relevant to this issue as well.
6. The extent of the complainant's intoxication had a different role to play in making factual findings in relation to counts 3 and 4. As the Chief Judge demonstrates, the complainant's evidence of exactly what happened, and whether sexual intercourse (by anal or vaginal penetration) took place, was somewhat vague and imprecise. It was open to the jury to have a reasonable doubt whether the intercourse alleged in counts 3 and 4 occurred, while having no doubt as to the complainant's truthfulness and reliability in relation to the issue of consent. The verdicts are not, in any of the senses discussed in the High Court authorities, "inconsistent". [2] Nor was it a case where the acquittals on counts 3 and 4 established a doubt as to the complainant's credibility that ought to have been reflected in the verdicts on counts 1 and 2. [3]
7. As to the single question concerning consent that formed an important part of the applicant's complaint as to the verdicts, it is appropriate to re-state that question: "Q. Ma'am, and what I'm raising with you is that it may be something that you regret, it may be something, looking back on it, it makes you cranky, but at the time you consented to those things occurring? A. That's correct, yes." [4]
8. Had objection been taken, the question would surely have been rejected. As the presiding Judge shows at [22] above, there were "four contestable propositions" contained within the question. The jury was entitled to pay very little regard to the answer particularly when, just five questions earlier, the complainant had said unambiguously "but it was not consensual". This Court is not called upon to decide whether the trial Judge was correct in prohibiting the Prosecutor from re-examining and anything we have to say on "the limits of re-examination" at common law or under s 39 of the Evidence Act 1999 (NSW) would be purely obiter. I would only say that his Honour's decision was a surprising one given the multi-faceted terms of the question which provoked the proposed re-examination.
9. I have considered the various inconsistencies within the complainant's evidence and in the evidence given by the other witnesses who were present or nearby at the time of the alleged offences. There were unsatisfactory aspects to the evidence called by the prosecution, but the jury was in a far better position than this Court to assess those things and make the relevant findings of fact. [5]
10. Upon close consideration of the record of the trial, including the medical evidence and evidence of "complaint", having scrutinised the transcript of the complainant's evidence with care, and giving full weight to the fact that the jury entertained a reasonable doubt as to counts 3 and 4, I am not left with a reasonable doubt as to the applicant's guilt in relation to counts 1 and 2. It was open to the jury, in the sense described in cases such as M v The Queen and MFA v The Queen, to reach the verdicts it did.
11. I agree that leave to appeal should be granted but that the appeal against conviction must be dismissed.
12. N ADAMS J: I have had the advantage of reading the judgment of Beech‑Jones CJ at CL in draft. I agree that the appeal should be dismissed for the reasons provided by his Honour. I also agree with the additional reasons provided by Hamill J. I am not satisfied that the jury ought to have entertained a reasonable doubt as to the applicant's guilt on counts 1 and 2 either on the basis of inconsistency with the acquittals on counts 3 and 4 or otherwise. As for the answer provided by the complainant extracted at [20] above, a consideration of a ground contending that a verdict or verdicts is unreasonable is made on an examination of all of the evidence at trial. When that answer is considered in the context of her evidence as a whole, it was open to the jury to be satisfied beyond reasonable doubt that the complainant did not consent to the acts that formed the basis of counts 1 and 2.

Endnotes

1. See, for example, Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4, M v The Queen (1994) 181 CLR 487; [1994] HCA 63, MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.
2. See MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 366 and MFA v R (2002) 213 CLR 606; [2002] HCA 53 at [33].
3. Cf, for example, Jones v The Queen (1997) 191 CLR 439 at 453; [1997] HCA 56 (Gaudron, McHugh and Gummow JJ).
4. Tcpt, 16 April 2021, p 130(45-48).
5. See the comments of Mason CJ in Chidiac v The Queen (1991) 171 CLR 432 at 443; [1991] HCA 4 and the more general observations of the Court concerning the "advantages" enjoyed by the jury in Pell v The Queen (2020) 268 CLR 123 at [37]; [2020] HCA 12. 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: 03 June 2022