HEADNOTE
[This headnote is not to be read as part of the judgment]
Mr Andrew Thomas Dadley (the Applicant) was charged on indictment and pleaded not guilty to two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW), and one count of committing an indecent act, contrary to s 61L of the Crimes Act.
A first trial before Bennett SC DCJ which commenced in February 2020 in the District Court of New South Wales (the first trial) resulted in the discharge of the jury, after it was unable to reach a unanimous or majority verdict. After a second trial before Sweeney DCJ which commenced in July 2020 (the second trial), the jury found the Applicant not guilty of the first count of sexual intercourse without consent, but guilty of the remaining two counts. The Applicant was sentenced to an aggregate term of imprisonment of 3 years and 3 months, with a non-parole period of 2 years.
The alleged counts were said to have occurred at the Complainant's apartment in the early hours of 9 December 2016, after a work Christmas party which both the Applicant and the Complainant, who were work colleagues, attended. During the work Christmas party, the Complainant had informed both the Applicant and another colleague, Mr Adam Richards (Mr Richards), that they were welcome to stay over at her apartment after the party. The Complainant, the Applicant and Mr Richards caught an Uber together back to the Complainant's apartment shortly after midnight. After chatting and winding down for around 45 minutes, each went to their respective beds in line with the agreed sleeping arrangements, with the Applicant sleeping in Bedroom 1, the Complainant in Bedroom 2, and Mr Richards on the sofa in the lounge room.
In relation to Count 1, being the first charge of sexual intercourse without consent, the Complainant gave evidence that she "passed out straightaway" in Bedroom 2, and awoke to the Applicant having penile-vaginal intercourse with her. The Applicant denied that sexual intercourse had occurred, or that he even went into the bedroom in which the Complainant had gone to sleep. The Applicant was found not guilty in respect of Count 1.
In relation to Count 2, being the second charge of sexual intercourse without consent, the allegation was that after the act of intercourse alleged in Count 1, the Applicant moved the Complainant from the bed in Bedroom 2, to the bed in which he had been sleeping in Bedroom 1, and again had penile-vaginal intercourse with the Complainant without her consent. The Complainant gave evidence that she did not remember getting down off the bed in the original bedroom, or the transition between the two bedrooms.
The Applicant again denied that sexual intercourse had occurred. His evidence was that he went to sleep in Bedroom 1, dressed in his jeans, shirt and socks, and that he woke in that bedroom to the Complainant shouting at him and hitting him, and that he said words to the effect of "What's wrong? Why are you hitting me?"
In relation to Count 3, being the charge of indecent assault, the act alleged was that after the act of sexual intercourse the subject of Count 2, the Applicant put saliva on his fingers by licking them and then applied that saliva with his fingers to the outside of the Complainant's vagina. The Applicant also denied that the act alleged occurred.
The Complainant gave evidence that when she finally realised what was happening in Bedroom 1, she reacted by screaming at the Complainant and "frog marching" him out of her apartment, with the Applicant not wearing any pants or underpants when he was thrown out of the apartment. According to the unchallenged evidence of Mr Richards, who observed the Applicant being kicked out of the apartment from his position on the sofa in the lounge room, the Applicant was wearing pants at this time.
The Complainant had a Sexual Assault Investigation Kit (SAIK) performed at the Royal Prince Alfred Hospital, and was examined approximately 17-18 hours after the alleged assault. Genital swabs were taken from the Complainant. Whilst the Applicant objected to the admission of certain DNA evidence and made an application for exclusion on the basis of either relevance or under s 137 of the Evidence Act 1995 (NSW), submitting that there was a "significant risk of secondary transference" and that the danger of misuse of the evidence was high, Bennett SC DCJ in the first trial rejected the application and held that the evidence had significant probative value which outweighed its prejudicial effect. This pre-trial ruling carried through to the second trial, in accordance with s 130A(3) of the Criminal Procedure Act 1986 (NSW).
The principal issues on appeal were:
1. whether the verdict of not guilty in relation to Count 1 was inconsistent with the verdicts of guilty in relation to Counts 2 and 3; and
2. whether the verdicts of guilty in relation to Counts 2 and 3 were unreasonable and could not be supported having regard to the evidence.
The Court held (Bell P, Walton and Bellew JJ agreeing):
1. The verdicts of guilty in relation to Counts 2 and 3 were inconsistent with the Applicant's acquittal on Count 1. This acquittal was only explicable by doubts the jury must have held as to the Complainant's credibility, in circumstances where there were no other eyewitnesses, and where the events founding the three complaints were so intertwined, both temporally and contextually, that the jury's doubt as to the Complainant's evidence in relation to Count 1 must have carried through to her evidence in relation to Counts 2 and 3. It was difficult to identify a possible or plausible basis for differentiating the verdict of not guilty in respect of Count 1, and the verdicts of guilty in respect of Counts 2 and 3: [89]-[102] (Bell P); [132] (Walton J); [133] (Bellew J).
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered.
1. On a review of the whole of the evidence, the verdicts of guilty with respect to Counts 2 and 3 were unreasonable. In addition to the inconsistency in relation to the finding of not guilty in respect of Count 1, to the extent that the jury's verdicts in respect of Counts 2 and 3 were influenced by a trace of DNA detected in the Complainant's vagina following the SAIK test, expert evidence revealed an inability of such DNA to survive in the vagina for more than 12 hours, whereas the SAIK test was performed some 17-18 hours after the alleged assaults. The DNA evidence was more consistent with a secondary transfer as a result of the Complainant having picked up the Applicant's DNA in relevantly innocuous circumstances. This, coupled with the important tension in the evidence between the Complainant's evidence and Mr Richards' unchallenged evidence as to the Applicant's state of dress when he was being evicted from her apartment, the Complainant's state of intoxication and the Applicant's own words and tone at the time of the alleged assaults, rendered the jury's verdicts in relation to Counts 2 and 3 unreasonable: [108]-[127] (Bell P); [132] (Walton J); [133] (Bellew J).
2. The Court quashed the Applicant's conviction and set aside his sentence.