Cordeiro v R - [2019] NSWCCA 308 - NSWCCA 2019 case summary — Zoe

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Cordeiro v R

[2019] NSWCCA 308

Court of Criminal Appeal (NSW)|2019-07-26|Before: Johnson J, Harrison J, Harrison JJ

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2019-07-26

Before

Johnson J, Harrison J, Harrison JJ

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

HEADNOTE [This headnote is not to be read as part of the judgment] On 19 October 2017, following a jury trial, the applicant was convicted of a single count of sexual intercourse without consent. The conduct said to constitute that count involved digital penetration of the complainant's vagina by the applicant while the complainant was asleep. At the time of the conduct the complainant was an employee on a chartered boat owned and operated by the applicant for pleasure cruises on Sydney Harbour. On 15 December 2017 he was sentenced to imprisonment for 3 years and 6 months with a non-parole period of 2 years and 3 months. The applicant appealed against his conviction on the single ground that the verdict of guilty was unreasonable and not supported by the evidence. The applicant appealed against his sentence on the single ground that the sentencing judge erred in her assessment of the objective seriousness of the offence. Held, granting leave to appeal but dismissing the appeal: In relation to the conviction appeal: per Simpson AJA, Johnson and Harrison JJ agreeing (i) Considering the whole of the evidence it was open to the jury to find the applicant guilty of the offence: [102]-[105]. M v The Queen (1994) 181 CLR 487; [1994] HCA 63; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 referred to. In relation to the sentence appeal: per Harrison J, Simpson AJA and Johnson J agreeing (ii) The applicant did not make good on any of his challenges on sentence: [142].

[2]

[5]

The relevant legislation

The applicable legislation is contained in Pt 3, Div 10 of the Crimes Act. At that time of the events in question the relevant provisions were s 61H and s 61HA. Since that time, by reason of amendment to the Crimes Act, the relevant provisions have been renumbered, so that what was contained in s 61H is now contained in s 61HA, and what was contained in s 61HA is now contained in s 61HE. There is no material difference in the content of the provisions. What is set out below is the relevant legislation as it existed as at 17 October 2015.
As indicated above, the applicant was charged with an offence against s 61I of the Crimes Act, which is in the following terms: 61I Sexual assault Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.
There are thus three elements to a charge under s 61I. They are: 1. that the accused person had sexual intercourse with another person (the complainant); 2. that the intercourse was without the consent of the complainant; and 3. that the accused person knew that the complainant did not consent.
Section 61HA (which, by subs (1), was expressed to apply to offences against s 61I) relevantly provided: (2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. (4) Negation of consent A person does not consent to sexual intercourse: (a) … (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or (c) … (d) … … (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or …

[6]

The trial

The trial commenced on 4 October 2017 in the District Court. The applicant was represented by senior and junior counsel.
The Crown prosecutor opened. She explained (as recorded in the transcript) that the Crown case was put as follows: "… the Crown must prove that, at some time between 17 and 18 October 2015 at Darling Harbour, that, firstly, the accused penetrated the vagina of [the complainant] … and that that act of sexual penetration was without her consent and that the accused knew she wasn't consenting. They are the three elements in the charge. This matter is not straight up and down, straight forward. I'll tell you at the very beginning of my opening that the complainant … has no recollection of that act of intercourse and the Crown will use a number of circumstances to prove that that act of sexual intercourse took place. The way the Crown puts its case in this trial is on the basis that the complainant was either unconscious at the time of the sexual intercourse and, therefore, could not give consent to sexual intercourse, or she was so affected by alcohol and the unwitting ingestion of an illicit substance that her memory was blacked out and that, at the time of the sexual intercourse, she was so affected by the consumption of alcohol and the unwitting ingestion of illicit substances that she was not able to consent. So either she was unconscious and couldn't consent, or she was awake to some extent, but the ingestion of illicit substances unwittingly and the consumption of alcohol combined to black out her memory. Either way, the Crown says that, even in that second instance, she was unable to give consent to the intercourse. The Crown says that if the complainant was unconscious at the time of intercourse and couldn't give consent, then the accused must have known that she was not consenting. Alternatively, if the complainant was so affected by alcohol and the unwitting ingestion of an illicit substance, which caused her memory to black out and, therefore, she was so overwhelmed by that synergy of the drugs and alcohol that she couldn't give consent, equally, the Crown submits that the accused would have known that the complainant was not consent [sic], or was at least reckless as to whether or not she had consented to the act of sexual intercourse."
From this passage, it may be seen that the Crown prosecutor was directing attention to the second and third elements of a s 61I offence, and signalling that the Crown case was that the complainant lacked the capacity to consent, whether by reason of unconsciousness (s 61HA(4)(b)) or intoxication by alcohol or drug consumption (s 61HA(6)(a)), and that the applicant actually knew of that incapacity and therefore that she did not consent (s 61HA(3)(a)), or that he was reckless as to whether the complainant consented (s 61HA(3)(b)).
In her closing address, on 17 October 2017, the Crown prosecutor took a more refined approach. She said: "… it is the Crown case that the accused had sexual intercourse with [the complainant] in the main cabin of the boat Prometheus sometime in the evening of or in the early hours of the morning between 17 and 18 October 2015. It is the Crown case he did that by inserting his finger into the complainant's vagina without her consent knowing she was not consenting. It is also the Crown case that the complainant was not consenting to that act of sexual intercourse because she was asleep and therefore was not able to consent. The Crown submits to you that the basis of [the complainant] being asleep was due to an accumulation of circumstances and they included, but you might find more, the following: Firstly that on that night she had consumed alcohol …" That is, the Crown continued to assert that the complainant lacked the capacity to consent, but asserted that that incapacity arose because the complainant was asleep (as distinct from unconscious).

[7]

(i) the complainant's evidence

Having regard to the issues raised on the appeal, it is necessary to set out the complainant's evidence at some length.
The complainant's evidence was that, in 2015, she was an Honours student in a science degree course. She had been awarded a scholarship to be part of an elite athletic program. A condition of the scholarship was that she not use recreational or "doping" drugs, and that, by way of enforcement of that condition, she could be subject to random drug testing throughout the course of the competition.
In August 2015 she applied for casual work as a hostess in the applicant's boat charter business and worked on the applicant's boats from time to time. One of the boats on which she worked was Prometheus. Prometheus was a 70 foot vessel which had two decks, upper and lower. On the upper deck was the helm and some entertaining areas. A stairway led to the lower deck where there was a kitchen, three bedrooms (one of which was used as a storeroom) and two bathrooms.
On 17 October 2015 the complainant started work at 10:15am. She boarded Prometheus at Rozelle. The first cruise of the day was completed uneventfully and a second party boarded at Woolloomooloo at about 4:00pm. The event was a birthday party for David Kezich who was a friend of the applicant.
The applicant told staff that he would be joining the party on board. (I take that to mean that he was no longer acting as crew member.)
The complainant gave evidence that, during the course of the evening, the applicant made a number of suggestive remarks to her. The first was made when the applicant announced that he was joining the birthday party. He told her that he: "…wanted to apologise for his behaviour and anything that happened that evening" and that: "… anything that happened on the boat, stay[ed] on the boat." The complainant said that she gave a non-committal reply and went on with her duties.
At about 6:00pm the boat moored at Darling Harbour for the night. Some of the crew were sent home. Members of the party on board went ashore to buy food. The applicant invited the complainant to join the party. She thought that he was "mildly affected by alcohol". He told her that she should think of this as a special occasion because he did not usually ask his staff to join parties. The complainant, having left her car at Rozelle wharf, asked how she was to get home. The applicant replied: "I don't care how you are getting home. I don't care about your car. You can stay here, you can stay on the boat. Just come and join the party and have some fun."
The complainant agreed to stay with the party and changed from her work uniform to her own clothes. The applicant offered her a drink and poured her a vodka and soda, which the complainant said was too alcoholic. He replied: "No, you have to catch up to the rest of the guests."
A second suggestive remark was made just after the applicant gave the complainant the drink. She said that she agreed with him that it was hot on the boat, to which he responded: "Perhaps we should turn on the air conditioning and it will be cold and if you got cold I would be able to see your nipples straight through your shirt." She said that she replied: "That's inappropriate, you've crossed the line. You shouldn't have said that." and walked away to the main deck where she spoke to two girls she had previously met.
She said that a little later the applicant again approached her, "grabbed my drink" and insisted that it was not strong enough. She refused to allow him to put more alcohol in the drink. She poured that drink down the sink and poured herself a new drink.
At about 9:00pm guests on the boat watched a fireworks display. The complainant was then with two other young women. The applicant offered them cocaine. One of the young women accepted; the complainant declined. Shortly after, the complainant received a text message from the applicant, asking her to come downstairs. The three women and the applicant went downstairs and into the second bedroom on the lower deck. The applicant produced a small bag in which were "small crystals" to which he referred as "M". He and the young woman who had accepted his offer of drugs consumed the substance by placing it on a key which they then put into their mouths.
The complainant (and others) returned to the upper deck where they mingled with guests.
From time to time during the evening the complainant communicated, via Facebook, with her boyfriend who was in South Africa. Between 11:23pm and 12:12am, from the downstairs bedroom, she sent messages to him, in the last of which she said "okay, still on my boat, babe". She considered herself at this time to have been mildly affected by alcohol. The applicant asked to speak privately to the complainant. He was then standing near the doorway of the main bedroom. The complainant walked into the bedroom. The applicant told her that he thought she was sexy and that he would like to see her in a bikini. Another man walked into the bedroom and offered the complainant and the applicant cocaine. The applicant accepted, the complainant declined.
The other man began preparing "lines" of cocaine, which the applicant urged the complainant to use. She said: "He wrapped his left arm around my back and he said to me 'I won't let anything happen to you, it will be fun. It will make you more affectionate, more confident, let your hair down'." She said that she then moved the applicant's arm from around her. She again declined to use the drug, saying she did not want it and did not trust it. She then moved away to the upper deck and joined the girls she had previously been with, before returning to the lower deck, where she had a conversation with the applicant in the main bedroom.
The last thing the complainant remembered before "waking up" was the applicant saying: "[L]et me do this it will be fun."
The next thing she remembered was "waking up", at about 2:45am. She felt "confused, dazed". Her underwear was damp. She realised that she had lost her phone. She sought help from others and the phone was eventually located. The complainant then left the boat and went home by taxi; she arrived at some time after 3:00am. She went to sleep. She woke about two hours later, needing to urinate. Her underwear was still damp and stained and she felt a burning sensation on urination.
At about 7:00am she woke her sister, who was sleeping in the room next door. She said: "I don't feel very well and I think something happened to me" and: "I think [the applicant] has done something to me but I don't know what and I can't remember." She was feeling "really confused" at the time.
The complainant said that her sister then rang the applicant, who said that he did not have time to speak to her. She (the complainant) therefore sent a text message to the applicant saying that she wanted to speak to him. He telephoned her and she asked him what had happened to her, to which he replied: "[N]othing happened, everyone was drunk." and: "I didn't do anything to you."
The complainant and her sister drove to St Vincent's Hospital from where they were directed to the Sexual Assault Clinic at the Royal Prince Alfred Hospital ("RPAH").
The complainant expressly denied willingly taking any illicit substances on the night of these events, and denied that she had consented to any form of sexual intercourse between herself and the applicant.

[9]

(iii) Dr Cooper

At RPAH the complainant was examined by Dr Christopher Cooper who took a detailed history. He took a number of vaginal swabs for the purpose of DNA examination, as well as a urine sample. He also took the complainant's underwear for examination.
Dr Cooper's evidence was to the following effect.
On examination of the complainant, he observed an abrasion of the lower end of the complainant's vagina ("the posterior fourchette"). He said that the injury was unusual in placement, and was a very reliable indicator that it arose from some sort of vaginal penetration, and the nature of the injury was an indication of dry painful vaginal penetrative intercourse, which would occur when the vagina was unlubricated. That was consistent with penetration while the complainant was unconscious. When asked what degree of force or trauma would be required to cause an abrasion of the type he observed, he answered: "It implies that the penetration was not in the same way as consensual intercourse where you would have, the vagina would be lubricated and non painful. It implies that - let me put it another way if I could. If somebody had that sort of trauma to that area, they would nearly always give a history of dry painful vaginal penetration intercourse." Asked: "Q. Are you able to comment or not about when a female is unconscious and sexual intercourse is performed upon them, how that might affect their state of sexual arousal?" Dr Cooper replied: "Well they wouldn't be aroused … so it is likely to be, the vagina is likely to be dry and, any vaginal penetration is likely to be painful and traumatic."
When pressed in cross-examination Dr Cooper agreed that abrasions of the sort suffered by the complainant could occur even when the vagina was lubricated but maintained that that was much less likely. He agreed that it could have been caused by "a clumsy fingernail" in the process of digital penetration. However, in re-examination Dr Cooper said that abrasion of the kind suffered by the complainant would be unusual after consensual sexual intercourse.
The DNA analysis arranged by Dr Cooper revealed the presence in the complainant's vagina of male DNA that matched the applicant and would have matched 1 in 750 unrelated males in the Australian population.

[11]

The defence case

The applicant gave evidence. He gave an account of boarding Prometheus and picking up guests for the afternoon cruise. He gave a different version of the conversation of which the complainant had given evidence concerning "what happens on the boat stays on the boat". His version was that he apologised to crew members because the party was going to be fairly big and there would be a mess to clean up, to which one of the crew replied: "Don't worry, Paul, your secret is safe with us. What happens on the boat stays on the boat."
He said that he spoke to the complainant "multiple times" and that he was then "letting her go" as his girlfriend had wanted him to ask her to leave. He said that he said to the complainant: "Look I think we're done. You're more than welcome to stay for a couple of drinks and just, just enjoy yourself. It would make up for not having your party last night."
He said that the complainant replied: "That sounds great. Thank you." and that she remained on the boat, at that time, still in her uniform. He said that he offered her a drink, which she accepted, and asked for vodka and soda.
He said that he was never alone in "the master bedroom" with the complainant. He then gave an account of a conversation with the complainant in which she asked about his girlfriend and commented on his "privileged lifestyle". He said that he went into the main bedroom to clear phone messages and that the complainant followed him there, carrying two drinks, one of which she gave to him. The transcript records that he then gave the following evidence: "Yes so she was sort of having, she picked up her drink, she was having a drink, and I was sort of half on my 'phone and she sort of made a comment something along the lines of 'Thank you so much. I am having the best time. It is the best. I haven't had this much fun since I have been back in Sydney'. She told me she had been overseas before that and she said to me that if she could come or could she come on another boat party because she was having that much fun … So then I had sort of by that stage was standing up because it was a bit uncomfortable where I was sitting and she sort of was quite excited by that and came up to me and put her arms around me and said 'You're the best boss ever, thank you so much, can't wait for the next party' and apologies it is embarrassing to talk about this, but I then, she had her arms around me and I sort of responded probably inappropriately and put my hands around her. So I put my hands, she sort of stayed in that position, and I put my hands on her bottom. She stayed in that position. Then I don't remember whether I was the one that instigated it or whether she instigated it but I remember she was turning around so previously she'd been facing me, she turned around or I turned her around. My hands were on her stomach around her pelvis area. She put her hands on top of my hands so, you know, I guess, I don't know why I did it, but I kept my hand there and at that point of time and I put my hands towards her crutch and she was sort of pushing towards, pushing her hand down. I put my hand through the side of her pants up towards her vagina. Put one of my fingers, I think it was that one (indicating), into her vagina and made these moves. … Yes it would have been that finger because that is my longest finger (indicating) from behind trying to reach down through the side of her pants into her and doing that move."
The applicant's version of "the nipple conversation" was that, while he had his arms around her he could see the top of her breasts and the outline of her nipples, and said to her: "You must be cold, I can see your nipples." He said that that was the only remark he made during the evening about her breasts or her nipples.
He said that the encounter went on for perhaps 15 or 20 seconds, and he recalled that the complainant was quite lubricated. He said that he was conscious that people were around and that he should stop what he was doing. He ceased the activity, fearing that his girlfriend was approaching. He said that he said to the complainant: "[L]ook this never happened right" to which she replied: "[T]his never happened." They agreed not to tell anybody. The complainant said: "I am meant to be working. I told my boyfriend I was working tonight."
The applicant denied offering or giving the complainant any drugs, and denied putting anything in any drinks of hers.

[12]

Discussion concerning directions

At the conclusion of the evidence a lengthy discussion took place between counsel and the trial judge concerning the manner in which the jury was to be directed. Included in that discussion were questions about the basis on which the Crown sought to prove that the applicant knew that the complainant did not consent to the intercourse.
Initially, the Crown maintained the position that its case was that the complainant was unconscious. The trial judge referred to the evidence of Dr Farah, and suggested that the Crown case essentially was that the complainant was "asleep and not alert and responding … and was therefore unable to give consent". She provided the parties with draft written directions for discussion purposes. These directions also incorporated a direction in respect of s 61HA(6)(a) (by which it may be established that a person does not consent to sexual intercourse if the person has sexual intercourse while substantially intoxicated by alcohol or any drug).
The trial judge proposed a direction along the following lines: "If you are not satisfied beyond reasonable doubt that [the complainant] was either substantially intoxicated by alcohol and a drug and/or asleep you could not find that the act took place without her consent." Senior counsel then representing the applicant said that he would be: "… content with a direction in those terms."
The discussion then ranged on; the alternatives under consideration appear to have been substantial intoxication by reason of ingestion of alcohol and/or drugs, and that the complainant was asleep.
The trial judge said: "They [the jury] would have to find that the act of digital intercourse took place when she was substantially intoxicated by alcohol and/or drugs or that she was asleep; and be satisfied of that beyond reasonable doubt; and if they are satisfied of that beyond reasonable doubt satisfaction of that proves her lack of consent and [the applicant's] knowledge of lack of consent." Senior counsel for the applicant expressed himself as uncertain about that part of the direction that related to intoxication, but said: "… in that latter formulation that your Honour put that might necessarily be right if the jury were satisfied of that that establishes that if she was asleep and knew she was asleep and he did it then, clearly it would be open to the jury to convict. So I don't want be heard about that. It's the first step that caused me difficulty in that formulation. I perhaps need to see it in writing before I respond intelligibly to it."
"The first step" was the proposed direction in relation to substantial intoxication. Senior counsel was expressing himself satisfied with the proposed direction with respect to the complainant having been asleep. The Crown prosecutor raised the question of unconsciousness, but the trial judge indicated that she proposed to omit any direction about unconsciousness. There was no demur from either counsel to that proposal.
In summing up to the jury the trial judge directed in accordance with that discussion. She said: "Relevantly to this trial, the law provides that a person does not consent to an act of sexual intercourse if the person does not have the opportunity to consent because the person is asleep. The Crown case is that [the complainant] was asleep at the time of the accused's act of digital sexual intercourse. It relies upon a combination of factors that led to her being asleep at that time, including the fact [the complainant] says she got up early on the day in question, and that she started work on Prometheus at 10.15am, intending to work a double shift, and that the events in question occurred in the early hours of the Sunday morning - so many hours later." No complaint was made about this direction.

[15]

Sub-ground 1: the Jury did not have an advantage in seeing and hearing the evidence because the Crown case as opened and conducted was abandoned prior to the trial judge's summing up

The point the applicant sought to make under this sub-ground was that, between the opening and closing addresses at trial, the Crown changed its position, and the discussion between the trial judge and counsel at the conclusion of the evidence.
I have set out above extracts from the Crown opening and closing addresses. As there set out, in its opening the Crown relied on s 61HA(4)(b) of the Crimes Act, which provides that a person does not consent to sexual intercourse: "… if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep …"
The applicant argued that the two concepts ("unconscious" and "asleep") are separate and distinct and that the Crown was driven to abandon its case on unconsciousness by an exchange with the trial judge, owing to what he argued was: "… a complete lack of any evidence or explanation for the Complainant to have been unconscious, rather than simply asleep."
The point taken by the applicant raises an artificial distinction between "unconscious" and "asleep". Section 61HA(4)(b) does not draw such a distinction; the trial judge was correct when she focused on lack of alertness, and consequent incapacity to consent. What was intended to be conveyed by s 61HA(4)(b) is a lack of awareness that may arise either from unconsciousness, or from sleep, but it is not necessary to choose one or the other. There was no evidence on which to base a conclusion that there is any clear dividing line between sleep and unconsciousness.
The transcript shows that considerable attention was paid by all involved to directing the jury in accordance with the evidence as it had emerged. The applicant was represented by experienced senior counsel who agreed, for good reason, that the Crown case was essentially that the complainant was asleep and that the concept of unconsciousness should be omitted from the directions. It was well within the scope of senior counsel's authority as counsel to take that course: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662; R v Birks (1990) 19 NSWLR 677.
The evidence was amply capable of establishing, and the jury was entitled to conclude, that, by reason of lack of awareness caused by sleep, the complainant did not consent to the sexual penetration. There was no "abandonment" of the Crown case as opened.
I would reject sub-ground 1.

[17]

Sub-ground 3: the complainant spontaneously falling asleep was highly improbable

The applicant's case in this respect was circumscribed by two circumstances. First, he did not dispute that the complainant had no memory of the sexual intercourse. Second, and importantly, in the light of the DNA evidence, the applicant did not and could not dispute that some form of sexual penetration had taken place. His own evidence confirmed that it had.
Accordingly, the applicant sought to challenge the Crown case that the complainant was asleep at the time of the sexual penetration. Although it was not always easy to follow, the applicant appeared to place reliance on what he called the complainant's "fragmented memory" in respect of the surrounding events; the submission, perhaps (it is not clear to me) being that if the complainant could not remember other aspects of the evening, then it was reasonably possible that she had, in a waking state, consented to the sexual encounter with the applicant but had subsequently forgotten it.
These submissions do not fit easily with the evidence. The complainant's evidence was clear. She recalled waking in the bedroom, in a state of some confusion. She had no memory of the intercourse, even the following morning at her home and when examined by Dr Cooper; she had been working since 10:15am, had (voluntarily) consumed a relatively modest quantity of alcohol, and had (she said involuntarily) consumed a quantity of cocaine. In my opinion the only logical inference to be drawn from the whole of the evidence in this respect was that, at some time after consuming the alcohol and the cocaine the complainant had fallen asleep; it is not inconsistent that that sleep was induced by either or both of those substances.
Once the jury accepted, as they obviously did, that the complainant had no recollection of the sexual penetration, it was open to the jury to conclude that that lack of recollection was attributable to her having been asleep. It was open to the jury to be satisfied that the complainant was asleep at the time of the intercourse. I would reject these sub-grounds.

[22]

Sub-ground 8: the evidence of complaint did not advance the Crown case and supported (in a critical part) the Applicant's version

The applicant's written submissions in support of sub-ground 8 run to 11 closely typed pages. They are not easy to follow. So far as I can ascertain, the applicant seeks to submit that the complainant's account of the events that occurred on the boat ought not to have been accepted by the jury, for a variety of reasons. One reason (it seems) is that the complainant, on waking on the boat, must have "strongly suspected" that she had been sexually assaulted by the applicant, yet made no immediate complaint.
The submission overlooks a number of things, including the complainant's evidence that, at that time she was "dazed and confused", and had no memory of what had happened. The suggestion that she "must have suspected" sexual assault is without foundation. So also is the suggestion that she could have been expected to make "immediate complaint" while on the boat. The complainant was on a boat owned by the applicant, among people who were strangers to her, but may be supposed to have been friends or acquaintances of the applicant. It is hardly to be expected, even if she had had the suspicions the applicant suggests that she must have had, that she would have complained to anybody there present.
The applicant also calls in question the complainant's evidence that she was dazed and confused. A number of witnesses gave evidence of helping the complainant find her mobile telephone. None of these, the applicant contends, described her as "dazed or confused". However, one witness (the applicant's de facto wife) gave evidence that the complainant was "distressed".
The applicant also referred to the complainant's evidence of what she did on arriving at home early the following morning. Rather than waking her sister, HC, she went to bed and to sleep and did not tell her sister until the following morning. That, the applicant submitted, was inconsistent with the complainant having been sexual assaulted.
The applicant submitted that, by the time the complainant arrived at home, she "may well have been" experiencing withdrawal from the cocaine that she had ingested. That may be correct. Since the complainant was adamant that she had not voluntarily used any illicit drug, it takes the applicant's argument nowhere.
The applicant placed considerable emphasis on the fact that the complainant made no allegation of sexual assault on returning home. That, of course, is entirely consistent with what she alleged.
The applicant also submitted that the complainant's remaining on the boat after her duties were completed, and socialising with the applicant, was inconsistent with her account of the suggestive remarks made to her earlier. I have dealt with that argument under sub-ground 8. It overlooks that the complainant was employed to work until 11:00pm, and also that she plainly felt able to deal with the thinly veiled suggestions put to her by the applicant.
The applicant also purported to identify discrepancies in accounts given by the complainant to HC and Dr Cooper and her evidence at trial. No discrepancy of any materiality was identified. Essentially, sub-ground 8 consisted of argumentative material as to why the jury ought not to have accepted the complainant as a truthful witness. Plainly, the jury rejected those arguments, as do I.
I would reject sub-ground 8.

[24]

Was the verdict of guilty unreasonable?

The circumstances in which an appellate court will set aside a jury verdict on the basis that it is unreasonable or unable to be supported on the evidence are well known and have been stated many times. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mason CJ, Deane, Dawson and Toohey JJ said at 493: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (internal citations omitted)
That was reinforced, more recently, in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, where the Court said: "65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code [of Queensland - the relevant legislation in that case] is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial … 66 With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'." (internal citations omitted) The last sentence was a reference to the passage already quoted from M.
Notwithstanding the division by the applicant of the unreasonable verdict ground into specific sub-grounds, I have carefully considered the whole of the evidence. I am satisfied that it was open to the jury to find the applicant guilty of the offence. Prominent among my reasons, although not to be taken to exclude others, is the response of the applicant early on the morning of 18 October when asked what had happened. His denial of sexual encounter, contradicted later, was a telling piece of evidence against him. So also were the various items of evidence concerning his suggestive remarks to the complainant during the course of the evening. His attempt to fashion those remarks into innocuous observations, or to pass them on to others, was obviously rejected by the jury.
I am satisfied on the whole of the evidence that the applicant was properly convicted of the offence. I would grant leave to appeal against conviction, but dismiss the appeal. I agree for the reasons given by Harrison J, that although leave should be granted to appeal against the sentence imposed, the appeal should be dismissed.
JOHNSON J: I agree that the appeal against conviction should be dismissed for the reasons stated by Simpson AJA. With respect to sentence, I agree with the reasons of Harrison J and the orders proposed by his Honour.
HARRISON J: I agree with Simpson AJA that the appeal against conviction should be dismissed.

[26]

Sub-ground 1: Her Honour the sentencing judge erred in her assessment of the objective seriousness of the offence by finding that the Applicant acted knowing the complainant was uninterested in sexual contact with him.

In support of this sub-ground the applicant reiterated his conviction appeal submission that the complainant was not a credible witness and that as a result her Honour erred by finding that the applicant sexually assaulted her knowing she was not sexually interested in him, based on the complainant's evidence. For the reasons discussed above at [96] - [101], it was open to the jury to accept the complainant's evidence. It was therefore also open to her Honour to accept the complainant as a credible witness. Because her Honour made no error in doing so, the applicant has not demonstrated error in her conclusion that throughout the course of the evening the applicant's sexual advances towards her were rejected, and that she knew at the time he sexually assaulted her that she was uninterested in sexual contact with him.
In support of this sub-ground, the applicant also repeated an earlier submission that the complainant's evidence that she rebuffed his sexual advances throughout the evening was inconsistent with her entering the applicant's bedroom while he was there alone. The applicant submits that because she did so voluntarily, it was not reasonably open to conclude that the applicant knew she was not sexually interested in him. As found above, at [77], the complainant's evidence of earlier events was not inconsistent with her evidence of later events, including her decision to enter the applicant's bedroom a second time. The fact that the complainant voluntarily entered the applicant's bedroom on the second occasion did not mean it was not open to her Honour to find that the applicant knew she was not interested in sexual contact with him. As her Honour observed, there was evidence from the complainant that throughout the evening she clearly and unequivocally rebuffed his sexual advances. It was therefore open to find that the applicant knew the complainant was not interested in sexual contact with him.
The applicant also relied upon the complainant's "failure" to leave his bedroom after he blocked the exit with his legs as evidence that it was not open to her Honour to find that he knew the complainant was not interested in him sexually. The complainant's "failure" to leave does not cast doubt upon her Honour's finding. Contrary to the applicant's submission, in the circumstances of this case, it does not strike me as particularly unusual or remarkable that a young woman who has consistently rejected the sexual advances of her older, male employer, sitting alone in a confined space with him, may freeze in response to him blocking her way out. I would reject this sub-ground.

[28]

Sub-ground 3: Her Honour the sentencing judge erred in her assessment of the objective seriousness of the offence by finding that the applicant made the decision to commit the criminal act after seeing the complainant was asleep and defenceless.

The applicant contends that by its verdict the jury did not find that he knew the complainant was asleep when he had sexual intercourse with her, but only that he must have known she was asleep. He submits that there is no evidence that he knew the complainant was asleep when he penetrated her and that the only available inference from the jury's verdict was that the applicant must have known, not that he actually knew, that she was asleep. The distinction sought to be drawn, as far as I can tell, is between the applicant's actual knowledge and presumed knowledge.
Two points should be made. First, I do not accept that the only available inference from the jury's verdict is that the applicant must have known, but did not actually know, that the complainant was asleep. As noted above at [15], the Crown case was that the applicant knew the complainant did not consent (s 61HA(3)(a)), or was reckless as to whether the complainant consented (s 61HA(3)(b)), because she lacked the capacity to consent. The verdict of guilty means that the jury was satisfied beyond reasonable doubt that the applicant either knew the complainant did not consent or was reckless as to whether she consented. Both states of mind depend upon proof of actual knowledge.
Secondly, it was open to her Honour to find that the applicant knew the complainant was asleep when he had intercourse with her. This is because the jury, by its verdict, found that the complainant was asleep when the applicant had intercourse with her. As a matter of common sense, if the complainant was asleep when the applicant had intercourse with her, it is open to conclude that that he knew she was asleep. This is especially so where, as in this case, the complainant was on a bed, had been consuming alcohol, and it was late at night.
Given the complainant's consistent rejection of the applicant's sexual advances over the course of the evening and the applicant's knowledge that the complainant was asleep, it was open to her Honour to conclude that he made the decision to commit his assault after seeing that she was asleep. It might be observed that such a finding was arguably favourable to the applicant in the sense that a finding that he made his decision to commit the sexual assault at a time well before the assault may have increased the objective seriousness of the offence. I would reject this sub-ground.

[29]

Sub-ground 4: It was not open to find that the objective seriousness of the offence was increased by reason of the conduct of the applicant being "predatory". Further, in the context of assessing the objective seriousness, her Honour's finding that the Applicant's conduct was predatory involved "double counting".

Her Honour found that the applicant's decision to sexually assault the complainant was predatory. He submitted that her Honour erred in her assessment of what constitutes predatory conduct. In making this submission, the applicant relied on the Victorian case of R v Scott (2009) 22 VR 41; [2009] VSCA 20. In that case, Robson AJA, with Redlich JA agreeing, upheld an offender's appeal against sentence on the basis that the sentencing judge erred in characterising the offender's conduct as predatory. Neave JA dissented on this point, finding that the sentencing judge's use of the term "predatory" was an "adjectival description of conduct, rather than a legal term of art": [98]. Neave JA would have dismissed the appeal against sentence.
In Scott, the offender was convicted of an indecent assault against a 14 year old girl. Briefly, the facts were that the victim was at a gathering at her home with her mother and her mother's friends, including the offender. The victim and the offender, a 39 year old man, discussed getting into the swimming pool. When the complainant went into her room to get changed, the offender entered and committed the indecent assault by touching her pubic area.
The majority held that none of the factors relied upon by the sentencing judge, namely, that the offender touched the victim for his sexual gratification, the gap in age between the offender and the victim, that the offender was able to gain access to the victim because of the relationship between his family and hers, that the victim and others trusted him, and that he betrayed that trust and followed the victim into her bedroom, by itself necessarily constituted predatory conduct: see [117] - [118]. According to the majority, an indicator of predatory behaviour is whether there was an "element of planning" to the offending: [115]. The majority also acknowledged that "opportunistic behaviour may be predatory if the person is predisposed to take advantage of such situations": [115]. However, "the critical element is whether there was evidence that satisfied the trial judge, beyond a reasonable doubt, that the applicant preyed on the victim as opposed to engaged in an isolated incident where a bit of horseplay got out of hand": [118].
The applicant submitted that because his offending was not planned and there was no evidence that he preyed on the complainant, her Honour erred in characterising his conduct as predatory.
The first point to note is that the applicant's reliance on Scott is misplaced. In that case, Robson AJA and Redlich JA did not intend to set out a definitive list of necessary factors that must be proved in order for an offender's conduct to be classified as predatory in law. So much is clear from Robson AJA's statement, not referred to by the applicant, that "I accept that the exact meaning of predatory in the context of a sexual assault may be uncertain in some circumstances": [119]. The question in Scott was whether, in the particular circumstances of that case, the offender's conduct was predatory. The majority answered the question in the negative, but in so doing did not intend to set out a list of factors that must be established for conduct to be classified as predatory.
While there might be force to Neave JA's statement that "predatory behaviour" is an adjectival description of conduct, rather than a legal term of art, it is necessary to consider whether, on the evidence in the present case, it was open to describe the applicant's conduct as predatory. In my opinion, for the following reasons, it was.
First, the applicant knew the complainant was asleep when he sexually assaulted her. Secondly, throughout the evening he had made sexual advances towards her, including comments about the complainant's nipples, her being sexy, and wanting to see her in a bikini, all of which were rejected. Thirdly, throughout the evening the applicant encouraged the complainant to consume alcohol and drugs, notwithstanding that she told him she did not want to consume drugs. Fourthly, on the night of the sexual assault the applicant had wrapped his arm around the complainant's back. All of these matters combine to satisfy me that it was open to her Honour to find that the applicant's conduct was predatory.
The applicant submitted that even if such a finding was open, it amounted to "double counting" to take it into account when assessing objective seriousness. According to the applicant, the only basis upon which it was open to conclude that his behaviour was predatory was that the complainant was asleep at the time of the intercourse. It was on this basis, he submitted, that the Crown proved an essential element of the offence, namely, his knowledge that the complainant did not consent. Her Honour therefore erred in taking it into account twice.
I disagree. To reconsider a fact essential to establishing proof of liability when determining objective seriousness is not to double count. If the applicant's submission were correct, that would lead to the result that a sentencing judge, when assessing objective seriousness, could not consider the fact that, in relation to an offender found guilty of murder, he or she intended to kill the deceased rather than cause grievous bodily harm. I would reject this sub-ground.

[30]

Sub-ground 5: Her Honour the sentencing judge erred in her assessment of the objective seriousness of the offence by taking into account that the applicant was in a position of authority with respect to the complainant.

When assessing the objective seriousness of the offence, her Honour said this: "The offender was [the complainant's] direct boss and was considerably older than she was. Although [the complainant] was technically off duty at the time of the offence, at the time of the offence the offender nevertheless held the status of being her boss, and to a limited extent he was in a position of authority, and [the complainant] was entitled to trust him, something he encouraged by statements including, 'I won't let anything happen to you'. I make clear however that to the extent there is a degree of overlap between a breach of trust and a breach of a position of authority, I have taken care not to double count."
Although her Honour did not specifically refer to it, s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that it is an aggravating factor on sentence if the offender abused a position of authority in relation to the victim.
The applicant submitted that it was an error for him to be sentenced on the basis that he was in a position of authority in relation to the complainant because, first, the evidence did not support that finding beyond a reasonable doubt, and secondly, to sentence him in that way involved a breach of the De Simoni principle. Each argument will be considered in turn.
For the reasons that follow, I am satisfied that her Honour did not err in concluding that the applicant was in a position of authority in relation to the complainant at the time of his offending. But before explaining why that is so, it is necessary to address a point raised by the applicant in his submissions.
Throughout his written submissions in relation to this sub-ground, the applicant made reference to the fact that because the evidence allegedly established that the complainant did not "feel" as though the applicant was in a position of authority over her, the applicant was consequently not in fact in a position of authority over her. I do not think this reasoning is correct. In my view, the question of whether an offender was in a position of authority over a victim cannot be definitively determined by how the victim subjectively felt about her or his relationship with the offender. The question is instead to be determined objectively by examining such things as the nature of any relationship that might have existed between the two and factors such as the age discrepancy, if any, between them and the location of the offence.
In my opinion, her Honour's conclusion that the applicant was in a position of authority in relation to the complainant was open. First, at the time of the offending the applicant was the complainant's employer. Secondly, the offending occurred only hours after the complainant finished her shift sometime between 8 and 8.30 in the evening. This was not a case where, for example, the offending occurred days or weeks after the complainant finished working for the applicant. Rather, there was a short amount of time between the end of her shift and the commission of offence. Thirdly, and significantly, the offending was perpetrated by the complainant's employer and occurred in her workplace. This was not a case where, for example, the offending occurred in a private residence unconnected to the complainant's employment. On the contrary and in my view significantly, the applicant chose to assault the complainant on the boat he owned and on which she was employed. The fact that the complainant was by then a guest at a private party occurring in her workplace does not in my opinion mean that she was not in her workplace. She was literally at the place where she worked when she was sexually assaulted. The applicant was the complainant's employer, she had only recently finished her shift and she remained at her place of work. It was in the circumstances clearly open to her Honour to conclude that the applicant was in a position of authority over the complainant.
The applicant also submitted that her Honour breached the De Simoni principle by finding that the offence was aggravated because the applicant was in a position of authority over the complainant. Such a finding, it was said, breached the principle because the applicant was convicted of an offence contrary to s 61I, not the more serious offence of aggravated sexual intercourse without consent contrary to s 61J, where a circumstance of aggravation is that the victim is "under the authority" of the offender.
The problem with the applicant's submission is that it assumes that the s 21A(2)(k) aggravating factor of "abusing a position of authority" and the aggravated sexual assault offence, where the victim is "under the authority" of the offender, capture the same set of factual circumstances. In my opinion, the assumption is incorrect. The aggravating factor directs attention to whether the offender was in a position of authority over the victim; the aggravated offence, on the other hand, directs attention to whether the victim is under the authority of the offender. These concepts are factually distinct. Her Honour did not find that the complainant was under the authority of the applicant. I would reject this sub-ground.

[31]

Sub-ground 6: Her Honour the sentencing judge erred in her assessment of the objective seriousness of the offence by taking into account that the applicant was in a position of trust with respect to the complainant.

The first point to note is that contrary to the applicant's submission, her Honour did not find that the applicant was in a position of trust with respect to the complainant. As the extract of her Honour's remarks on sentence reveal, quoted above at [128], her Honour found that the complainant "was entitled to trust him [the applicant]" and "to the extent there is a degree of overlap between a breach of trust and a breach of a position of authority, I have taken care not to double count". Nowhere in her remarks did her Honour find that the offending was aggravated because the applicant was in a position of trust. Her Honour's finding that the complainant was entitled to trust the applicant and that by sexually assaulting her he breached the trust the complainant legitimately placed in him, is distinct from finding that the applicant was in a position of trust.
That is enough to dispose of this sub-ground. However, I will briefly consider whether it was open to her Honour to find that the complainant was entitled to trust the applicant or that he breached the trust she placed in him.
As the quote extracted at [128] reveals, her Honour found that on the night of the offending the applicant encouraged the complainant to trust him by making statements including "I won't let anything happen to you". In addition to this statement, in examination in chief, the complainant said that the applicant expressly told her "I should trust him" after he had offered her cocaine. In my view, given the complainant's evidence that the applicant expressly told her that she could trust him and his claim that he would not let anything happen to her, it was open to find that the complainant was entitled to trust him and that by sexually assaulting her he breached that trust. I would reject this sub-ground.

Cordeiro v R

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