Dadley v R

The Complainant's evidence as to the alleged assaults

1. The Complainant's evidence was that she changed into her pyjamas before going to bed in Bedroom 2, saying that "I don't specifically have the recollection of putting them on and getting changed but I always sleep in pyjamas and I went to the trouble of collecting them so - I mean, that's all I can really say about it, I guess." [24] Her evidence was that she "passed out straightaway" when she got into bed, almost as soon as her head hit the pillow. [25] Her account in chief as to what then occurred (and which formed the basis of Count 1) was as follows [26] : "Q. Can you tell the Court what was the next thing that happened? A. I opened my eyes and I woke up to Andrew on top of me with his penis in my vagina. Q. Can you tell the Court what, if anything else, you recall about that? For example, were you wearing your clothes, how you were positioned. A. I was lying on my back and I don't remember - I didn't have my pyjamas on. I just - I just didn't think it was real. Q. Did you say you didn't think it was real? A. Yeah. Q. And I'm sorry to get to this level of detail. What, if anything, was Andrew doing? A. He had his penis in my vagina and he was just moving and then he took it out and put his hand up to his mouth and - sorry, and then I had saliva on my vagina and then he put it back in. Q. He put his penis back into your vagina? A. Yeah. Q. What, if anything, happened after that? A. Then I kept my eyes closed and I thought I must have been dreaming and so I kind of thought it would all just go away and then I felt him do the saliva thing again with his hand and then he reached his arm under my shoulders and, like, sort of sat me up and kind of guided me off the bed. Q. In that moment, what was your state of mind? What do you recall about your state of mind? What, if anything, were you thinking or perceiving? A. I honestly felt like it was a dream. Like, I almost felt like I was watching myself in a movie and I just thought if, like, it had to not actually be real, like, it actually had to be a dream because I would just wake up and it wouldn't be real."
2. The Applicant denied that sexual intercourse had occurred, or that he even went into Bedroom 2 where the Complainant had retired to go to sleep. 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 he said "What's wrong? Why are you hitting me?" [27]
3. 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 elevated bed in Bedroom 2 to the bed in which he had been sleeping in Bedroom 1, and that he again had penile-vaginal intercourse with the Complainant without her consent, knowing that she was not consenting: Q. You said he guided you off the bed. What was the next thing that happened, if anything? A. I don't actually remember getting down off the bed. And then the next thing I really remember was being laid down on the single bed in the other bedroom and - sorry, and then he got back on top of me and started again."
4. This was also strenuously denied by the Applicant. As noted above, his case was that he woke in the bed that he had gone to sleep in, with the Complainant shouting at him and hitting him, and that that was the first thing he knew.
5. 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.
6. Returning to the Complainant's account, she indicated that the Applicant had lifted her from the bed in Bedroom 2 by putting his arm behind her shoulders and lifting her forward. [28] The Complainant gave evidence that she did not remember getting down off the bed in the original bedroom, [29] or the transition between the two bedrooms. [30] As noted above, she outlined that the next thing that she remembered was being laid down on the single bed in the other bedroom, and that the Applicant "got back on top of me and started again", which she clarified as meaning that he "started having sex with me again, and put his penis in my vagina". [31] She indicated that she had her eyes closed for most of the time, but that she had half opened her eyes to try and see what was happening, and that she saw the Applicant and closed her eyes again. [32]
7. The Complainant gave evidence in relation to Counts 2 and 3 and the events that ensued, as follows: "Q. What, if anything, was he doing with his body? A. He was moving back and forth and then he took his penis out again and put more saliva on his hand and wiped it on me again. Q. After wiping his fingers on your vagina, what, if anything, did he do after that? A. He was just moving back and forth and I sort of half opened my eyes and I remember just thinking, like, he knows my eyes are closed, like, and I haven't moved, like, he knows I'm asleep and then it just - like, it felt like it went on for ages and then it was just like, I realised it actually - I wasn't dreaming and it was real. Q. Did you do anything once you had that realisation? A. Yes. I brought my leg up and I kicked him off me and I sat up and I slapped him in the face and yelled at him and I just said, 'What the fuck do you think you're doing?'" [33]
8. During cross-examination, the Complainant indicated that she saw one of the occasions where the Applicant put his hand up to his mouth and then wiped his hand on her vagina. [34]
9. The Complainant indicated that the Applicant was wearing a shirt during the time of the alleged assaults, but that he did not have any clothes on from the waist down. [35] The Complainant said that the Applicant had said "What are you doing? Why are you hitting me?", to which she said "Get the fuck out", grabbed his clothes off the floor and "shoved them to him", and then "grabbed him by the back of the hair and pretty much frog-marched him to the front door". [36]
10. During her evidence-in-chief, the Complainant gave evidence that she opened the front door, pushed the Applicant out, and closed the door behind him, and then she ran back to the bedroom and started bawling. [37] She indicated that at this point, she was "very alert because I was in complete disbelief and I guess the adrenaline was racing and I felt very alert". [38]
11. During cross-examination, the Complainant indicated that she had not given the Applicant a chance to put his pants on before marching him to the door. [39] She said that she did not believe that the Applicant was wearing pants from the time when she started hitting him in the bedroom to when he was pushed out of the front door. [40]

Mr Richards' evidence

1. At this juncture, it is desirable to refer to Mr Richards' evidence. As noted earlier in these reasons, Mr Richards had the initiative and good sense, influenced, as he explained, from his forensic training, to make a detailed note of what he had heard, seen and done, very shortly after the events in question. Mr Richards was cross-examined by reference to this note.
2. Mr Richards' evidence was that he went to sleep at some point after 1am or 1.30am, although he was not certain, [41] but that he "was woken by noises". [42] He was questioned further about the noises that he heard, and gave evidence as follows: [43] "Q. All right. Can you describe the noises? Did they say anything? A. They were, they were quite muffled but they were clearly two people disagreeing and I couldn't make it out. In fact, I thought it was, I was in an apartment complex and I thought it was a domestic in, maybe, another unit. Q. So, you couldn't really hear where it came from? A. No. At that point, no. Q. And, you couldn't hear any, particular, words? Is that right? A. Not initially. No. But then as it got louder, I started to make out some sentences. Q. And, what did you hear when you could make out the sentences? A. I heard an angry female voice. And, I heard a, a very quiet male voice. Q. And, the female voice, did you recognise it then? A. It was [the Complainant's]. Q. Yes. And, what did you hear her say? A. Again, she, she was very angry. Q. Why do you say the word angry? A. The, the tone of her voice, like, she was, she was very, yeah, angry. She, she was saying things like, what the fuck do you think you're doing? You know. Who do you think you are? Yeah. Real, real, real, sort of questioning aggressive tone. Q. So, you heard her voice. Could you see [the Complainant], at this point? A. I couldn't see anybody. Q. And, did you hear any other voices? A. Well, then I heard the male voice and that was a much more subdued sort of questioning voice. Q. Did you recognise that person's voice? A. Not a, not initially but then as it came in to the same room that I was in, I recognised it to be Andrew's voice. Q. And, what did Andrew say? What could you hear Andrew say? A. He was more questioning. To say, what's, what's going on? What are you doing? Why are you hitting me? Q. So, what are you doing? Why are you hitting me? A. Yep. Q. Anything else that you can remember? A. No. It was a questioning tone. What's, what are you, why, why are you upset? Why are you hitting me? No, it was more, it was just a very reasoning tone trying to understand. Q. Could you see him when he was saying these words? A. No, I couldn't. So, I was asleep on the lounge, the eyes, my eyes were closed. I'd rolled over but I only saw them come in to my view from the left. I didn't, sort of, roll over and sit up and get involved. I, actually, didn't know what I was seeing. I was just watching. Q. So, you saw them at some point? A. Yeah. They came in to the room 'cause they went to the front door. Q. And, what did you see when they came in to the room? A. [The Complainant] was naked. She had Andrew by the scruff of the neck, by the scruff of the hair, and she had his head against the wall next to the door while she tried to undo the lock to open the door and obviously push him out. She sort of - she - she kept - again the similar language, like, you know, 'Who do you think you are,' kind of thing. Andrew wasn't fighting back at all, resisting. He was fairly quiet. Q. Did Andrew say anything? A. I can't say that he - he said he said nothing but he was - he was - he was not fighting back and I do recall him saying things along the lines of, 'What - what - what's going on? Why - why - why are you - why is this happening?' Q. What's the next thing that - you said that she had him by- A. The hair. Q. -the hair. A. Yeah. Q. And she was trying to unlock the door. A. Which took a long time. At that point, I almost go up to sort of say, 'Hey,' and then there was enough light in the room that I could plainly 'see - I could really - I could see quite clearly. I don't know if it was a full moon or what was it was or there was outdoor lighting, but there was enough light that I could see enough of what was going on. Q. Do you know where the light was coming from? A. No. I don't know if it was just from other units or - or the streetlight. I don't know if it was a full moon, but I could still vividly see. I was quite surprised when I saw that [the complainant] was naked. I could even see a very large bruise on her thigh, on her, like - so I just - I had pretty good vision. Q. You said she tried the lock for some time. Did she eventually get it open? A. Yes. She did, yeah. Q. And she [sic] happened then? A. She pushed Andrew out the door." Pausing at this point, under cross-examination, Mr Richards confirmed that the Applicant was fully dressed when Mr Richards saw him being thrown out of the apartment. [44] It is also relevant to note that there was in evidence a photograph showing the Applicant's face/ear with scratch marks, [45] said to have been caused by the Complainant when "frog-marching" him to the front door. [46]

The Applicant's account

1. At this point, it is necessary to set out the Applicant's account of events: [47] "Q. Picking up on your evidence you put yourself into bed. Do you recall if you were on top of the covers or underneath the covers? A. I was on - under the covers, on the sheets. Q. What happen next? A. My next recollection was being woken up, with someone hitting me and yelling at me. Q. When that occurred could you see who it was? A. No. The room was quite dark. Q. Was it a male or a female voice? A. It was a female voice. Q. Do you recall what was said? A. Words to the effect of, 'Who the fuck do you think you are?' Q. What, if anything, did you say? A. At that point I jumped out of bed and said, 'What's wrong? Why are you hitting me?' Q. Did you have any understanding of what was happening at that point in time? A. I had no idea. Q. What happened after you jumped out of bed? A. I was pushed up against the wall and then I was struck a few more times to the face. Q. Then what happened? A. The similar words were yelled by [the Complainant] at that point and I repeated again, 'What's wrong? Why are you hitting me?' Q. Did you move from that room? A. Yes. After she yelled something to the effect of, 'Get the fuck out,' which I agreed. I said, 'Okay, but I can get my stuff?' Q. When you said, 'Can I get my stuff,' what happened at that point in time? A. She fumbled around, picked up my shoes off the floor and pushed those to me and then as I turned to go out she basically grabbed me by the back of the neck and actually pushed me faster towards the front door. Q. Did you end up against the front door? A. On the wall next to the front door, so she was holding my head against the wall there while she was trying to open the latch. Q. From when you first recall being struck to when you got to the wall how long did that take? A. It was very quick. I couldn't say. It would be certainly well under a minute. 20 seconds, something like that, it was quite quick."

Events following Applicant's departure from the apartment

1. The Complainant's evidence was that after she had kicked the Applicant out, Mr Richards came into the room she was in, but that she did not recall the conversation that she had with him. [48]
2. Mr Richards' evidence as to what occurred after the Applicant had been physically thrown out was as follows: [49] "Q. Did she close the door? A. She did. She did close the door and then she ran back to bedroom 1 and at that point in time, I - well, when she got back in there, her screaming and crying was very, very loud and very confronting, to be honest with you, and that's when I went in there to - to try and get an idea of what - what had happened. Q. You went into the room that she went into. A. Yep. Q. And did you speak to her in that room? A. I did. She was under a - under a quilt. She dived under a - a doona, a quilt. I couldn't see her there, but she was yelling and screaming in the bed. She was angry. Q. When you said you couldn't see her, was that because of the quilt? A. Yes, yes. It was up-- Q. How much of her body had she covered? A. Pretty much her whole body was under the quilt and it took me - I don't know. It took - took me a fairly reasonable amount of time for her to sort of realise that I was talking to her. When she did sort of acknowledge that I was there and she pulled her head out of the covers, you know, she - she sort of she made some pretty strong statements around, you know, 'Who does he think he is trying to stick his dick in me,' and things like that. Q. She said, 'Trying to stick his dick in me.' A. Yeah. Q. Did you say anything in response to that? A. Well, that was kind of the first I sort of starting realising that this what might have been the situation and then it - then the door knocked. There was a knock at the door. Q. There was a knock on the door. A. Yeah. Q. Did anybody go to the door? A. Yeah, I did. Q. And what happened when you got to the door? A. So just before I got the door, you know, it wasn't hard to figure out it was probably Andrew and I said to [the Complainant], I said, 'What has he forgot? What's still here that' - thinking it might have been keys or whatever and there was two phones next to the bed and - and she - she saw them first and she - I think she went to grab them and said she, 'He forgot his phone,' and she was angry about it and I said, 'I'll take them,' and I grabbed them and tried to sort of hopefully get to the front door on my own, and I - and I got to the front door. I had these two phones."
3. Mr Richards gave evidence that when he opened the door, the following conversation occurred: [50] "Q. And what happened when you opened the door? A. Andrew was there and he - he sort of said to me, he said, 'Is everything okay? Is [the Complainant] there? Can I talk to her,' and at that point I don't think [the Complainant] was quite at the door. I said, 'Mate, I don't think it was a good idea.' He said, 'Do you know what's happening?' He said, 'I just woke up. She was kicking me,' and I just - I said, 'Mate, it's not a good time. I think just - let's just to this later.' I gave him the phones and closed the door, but [the Complainant] got to the door as well. Q. And when [the Complainant] got to the door, was it still open or had you closed it by that time? A. I - I peeled her away from the door and closed the door myself. Q. Was she saying or doing anything when she got to the door? A. She was - she was trying to sort of say things to Andrew. I can't remember exactly what she was saying, but she was still being quite aggressive."
4. The Complainant then said that, shortly after the Applicant left having recovered his phones, she "got it in my head that I was going to find him and flog him", and so she put her clothes on and went downstairs to look for him. [51] She said that she got about a third of the way up the street when she saw the lights of a vehicle pull up at the top of the street, and assumed that it was the Applicant getting into a taxi or Uber. [52] The evidence was that the Applicant got an Uber at 3.35am.
5. Mr Richards then went back to the room that the Complainant was in, and she was getting dressed. He was questioned as to what he saw at this point: [53] "A. Her just getting dressed and I spoke to her in some way. I asked her some questions and while she was getting dressed, she - she was acknowledging me at this point and she made again statements like, 'Who does he think he is trying to put his cock in me,' and then she sort of looked at me. She paused for a second and she looked at me and she - and she said, 'He licked his fingers just to try and get it in me,' and she was demonstrating that action to me. Q. When you say she was demonstrating that action, can you recall exactly what she did? A. Yeah, she was just demonstrating licking her own fingers. CROWN PROSECUTOR: So the witness has just put his right hand up towards the face. WITNESS: Yep."
6. Mr Richards said that the Complainant had an "angry" and "questioning tone" at this point. [54] He said that she grabbed her keys, and went to the door, and said that he guessed that she was looking for the Applicant. [55] When questioned whether he followed her, Mr Richards gave evidence as follows: [56] "A. I did but I was still in boxers, so it took me another short time to throw on some shorts and a shirt on and by the time I got downstairs, she was 50 metres up the street. Q. And when you got down the street, and you said she was about 50 metres up the street, did you see Andrew? A. I didn't see Andrew, no, but I saw a car pulling away another 50 or a hundred metres up the street and as I caught up with [the Complainant], she just said, 'That that's him in the car..(not transcribable)..and then she turned around and kind of just sort of collapsed on the ground and started crying. Q. Was that on the street, was it? A. Yeah, out the street, yeah. Q. And what did you do when she collapsed on the street? A. I picked her up and walked her back to the unit."
7. He gave evidence that when they were back in the apartment, he and the Complainant had a conversation as to what she said had occurred: [57] "The son's room was a - it had a bed that was kind of like - it was a novelty bed. It was raised quite high. And you had - you know? The kid had access to other things underneath it. It had a rail and a guard on it. She did - she said she went to sleep in that bed. And she felt someone starting to sort of feel her, touch her. And then she said she felt she was lifted out of that bed and helped to walk back down to the other room, which was I'd say bedroom one - the daughter's room. And she says that's when she said she realised or she thought - you know? She realised it was Andrew. And she thought it was a dream. But when she realised that's when she started lashing out." Mr Richards clarified that the Complainant did not use the words "lashing out", but that she had said that she had "started hitting" and "kicking" the Applicant. [58]
8. After going back into the apartment, the Complainant contacted her friend, Ms Katrina Merritt (Ms Merritt) at approximately 3.55am. [59] At the time of giving evidence, Ms Merritt had been a police officer with the New South Wales Police Force for 26 years. [60] The Complainant gave evidence that she said something along the lines of "Something's happened. Can you come over?", although she did not go into detail over the phone. [61] Ms Merritt came over within an hour, with the Complainant telling her what had happened, [62] although the Complainant could not recall exactly what she told her. [63] In cross-examination, the Complainant maintained that she could not recall exactly what she had said to Ms Merritt. [64]
9. Ms Merritt gave evidence that she received a phone call in the early hours of the morning on 9 December 2016 from the Complainant, [65] that the Complainant "was very upset", and when Ms Merritt asked her what was wrong, the Complainant said ""I - I can't talk. I - I can't talk over the phone. Can you come over?" [66] Ms Merritt said that she "never heard [the Complainant] be so upset", [67] and elaborated that the Complainant was crying and that it was unusual for the Complainant to call her at that hour, so Ms Merritt knew something was wrong. [68]
10. Ms Merritt outlined that she drove straight over to the Complainant's apartment, which would have taken approximately 15 or 20 minutes. [69] She indicated that when she arrived, the Complainant was sitting on the lounge, and when Ms Merritt questioned her as to what had happened, the Complainant stated "[h]e raped me". [70] Ms Merritt outlined that the Complainant was extremely upset, was crying, had red eyes, and was curled up on the end of the lounge, and that Ms Merritt had known the Complainant for a long time but had never seen her that upset. [71] When Ms Merritt questioned the Complainant who had raped her, she responded with the Applicant's name, saying "My boss, how could he do this? I respected him. I thought he was my friend". [72]
11. In relation to the alleged sexual assaults, Ms Merritt outlined that the Complainant had told Ms Merritt that after she went to sleep: "She said that the next thing that she remembers is that Andrew was on top of her, kissing her. She said she was half asleep and she woke up to Andrew on top of her, kissing her and that he picked her up and carried her to, to the other room. The room that he was, originally, in. And then, she said that he raped her and he was inside her." [73]
12. Ms Merritt said that the Complainant had told her that when the Applicant was on top of her and kissing her, the Complainant had indicated that she had been confused at that stage, and was not sure what was happening because she was asleep. [74] Ms Merritt gave evidence that the Complainant told her that she had been carried to the other bedroom, and that she had said that the Applicant was "on top of her and inside her", and that the Complainant had said that "[h]e was inside my vagina. Oh my God. I hope I'm not pregnant. How could he do this to me? He kept licking his, his fingers because I wasn't wet enough. I can't believe he did this really". [75]
13. Ms Merritt gave evidence that the Complainant had told her that the Applicant had "kept sucking his fingers and it was disgusting" and that once the Complainant realised what was happening, she "managed to grab him out of the room and she walked him to the front door and told him to leave". [76]
14. The Complainant gave evidence that she told Ms Merritt that she did not know what to do, with Ms Merritt reassuring the Complainant and calming her down a bit, before going through what the Complainant's options were, [77] and reassuring her that it was all her decision. [78] The options outlined by Ms Merritt included reporting to the police and getting a Sexual Assault Investigation Kit (SAIK) procedure done. [79] In relation to this kit, Ms Merritt explained to the Complainant that there was a time frame in relation to getting one done, so that if she got that done, she could make any other decisions later. [80] Ms Merritt gave evidence that at the time she was telling the Complainant about her options, "she didn't appear intoxicated" and that "I didn't think she seemed drunk when I was speaking to her". [81] Ms Merritt outlined that she had known the Complainant for 18 years, and that she was quite coherent with what she was saying, she was not slurring her words, she was very specific about what she was saying, and that she did not show the signs of intoxication. [82]
15. Mr Richards gave evidence that he left the apartment for approximately 15-20 minutes whilst the Complainant and Ms Merritt talked. Ms Merritt eventually drove Mr Richards back to where his car was parked at Mascot Fire Station, [83] and it was at this point that Mr Richards made his note of what he had heard and seen. [84]
16. The Complainant gave evidence that Ms Merritt and Mr Richards left her apartment at around 6am, and that she went to sleep until woken up at approximately 9.30am by a call from Ms Merritt. [85] After she got off the phone with Ms Merritt, she noticed that she had two missed calls from the Applicant's work phone, [86] which were at 7.36am and 8.58am. [87] She gave evidence that she had phone calls with both Mr Richards and Ms Merritt later on that day, but did not recall what was said during those calls. [88]
17. Under cross-examination, Mr Richards accepted that, later that day, he was contacted by the Applicant who said to him "Do you know what happened?" and "I don't know what happened". [89] He also accepted that he had recorded in his statement that the Applicant had said to him "I woke up and [the Complainant] was hitting me". Mr Richards said that what he had recorded the Applicant as saying "[t]was consistent throughout". [90]
18. The Complainant gave evidence that later in the morning, at 11.41am, [91] she received a call from a number that she did not recognise and when she picked up, he said "Hey V", and she recognised the Applicant's voice and hung up straight away. [92]
19. The Complainant outlined that she messaged her friend, Ms Cara Peresson (Ms Peresson), and asked if she could come over. This text message was sent at approximately 10.30am and stated "Can you please come over". [93] When Ms Peresson arrived, the Complainant gave evidence that she explained to her what had happened. In cross-examination, the Complainant accepted that she told Ms Peresson that after she had gone to sleep, the next thing she recalled was feeling pressure on her back, like she was being scooped up out of bed, and that she recalled being walked into her bedroom, but that in her mind she felt like she was dreaming. [94]
20. Inside the apartment, Ms Peresson observed the Complainant initially sit down on the lounge and then she curled herself up into a ball, putting her knees up to her chest and hugging her knees. [95] When Ms Peresson asked the Complainant what had happened, she responded with "Andrew raped me", and she then burst into tears as soon as she said the sentence. [96] Ms Peresson gave evidence that the Complainant had told her that she felt like she had put pyjamas on before going to sleep, but that when she had woken up, she did not have the pyjamas on. [97] She told Ms Peresson that she was asleep in the loft bunk, and the next thing that she recalled was feeling pressure under her back, like she was being scooped up out of the bed and then led towards her bedroom, and that she said it felt like a dreamlike state. [98] Ms Peresson gave evidence that the Complainant said that the next thing she remembered was opening her eyes and seeing the Applicant licking his fingers, and she had performed the gesture of licking her left hand. [99] The Complainant told Ms Peresson that "[h]e licked his fingers to lubricate me and then he stuck his dick inside me". [100]
21. Ms Peresson said that the Complainant put her foot up against the Applicant's chest to push him off and said "What are you doing?", to which he replied "Why what's wrong?" Ms Peresson continued to give evidence as follows: "She said he was confused why she was asking the question, and so while she was sort of yelling at him she said he was putting his pants on at that point. And then she grabbed him by the back of the neck and walked into the front door to put him - to chuck him out of the unit. She said it was quite dark at the time and she fumbled quite a bit to get the door open. She said it took a while to get it open and at this point she said she was completely naked." [101]
22. Ms Peresson offered to call the police station for the Complainant, which she did. [102] Ms Peresson also contacted the RPA Rape Crisis Team. [103] The Complainant indicated that after Ms Peresson contacted the police, two police officers whom the Complainant believed were general duties officers came over and said that they had to establish a crime scene, so they "basically just asked us not to touch anything and they just sat there pretty much". [104]
23. Ms Peresson had an appointment that was coming up at midday, and so another friend, Ms Belinda Wheeler (Ms Wheeler) came over when Ms Peresson left. [105] Ms Wheeler arrived after the police had arrived, [106] at around midday, [107] and Ms Peresson gave evidence that she told Ms Wheeler the story that the Complainant had told her, but not to the same extent or detail. [108] The Complainant outlined that she "explained most of it" to Ms Wheeler, and told her that the Applicant had "had sex with me while I was asleep". [109]
24. Later that day, Ms Wheeler took the Complainant to Mascot Police Station, [110] where the Complainant gave a statement which was taken by Detective Amy Gerrish. [111] Whilst the Complainant was at Mascot Police Station with the Detective, she received a missed call from the Applicant's personal number, at 3.23pm. [112]
25. Later in the evening, the Complainant had a SAIK performed at RPA Hospital. [113] According to the Expert Certificate by Dr Gock at the RPA Sexual Assault Service, the complainant was examined between the hours of 8pm-9.30pm on 9 December 2016, with the examination thus taking place 17-18 hours after the alleged assault. [114]

The Y-Filer DNA Evidence

1. Y-Filer DNA is a DNA identification system that targets areas on the Y-chromosome (male specific). [115] Testing using the Y-Filer system employs the same technology as conventional DNA typing, with the difference being that the gender-determining chromosome of the male (the Y chromosome) is targeted in this testing. [116]
2. Genital swabs were taken from the Complainant, and the results of the DNA analysis were the subject of two analysis reports by Ms Virginia Friedman (Ms Friedman), dated 28 March 2017 and 24 April 2019, which were extracted as part of Ex L in the trial.
3. In relation to the report dated 28 March 2017, the following results were produced: Item No Item Description Biological Fluid Testing Results 1 SAIK No: Y002667 1a Reference buccal sample A DNA profile was recovered 1b High vaginal smear Semen not detected 1b High vaginal swab Semen not detected This item has been stored at the NSW Forensic and Analytical Science Service. 1c Low vaginal smear Semen not detected 1c Low vaginal swab DNA testing was carried out using the Y-filer System. The male profile recovered matched the Y-filer profile of Andrew Thomas DADLEY (Barcode No. XPS00066550) and is also expected to match all males on his paternal line. Additionally, this profile is expected to occur in approximately 1 in 750 unrelated males in the general population 1d Vulval smear Semen not detected 1d Vulval swab The DNA recovered has the same profile as [the Complainant]. 1e Endocervical smear Semen not detected 1e Endocervical swab Not examined. This item has been stored at the NSW Forensic and Analytical Science Service.

1. In relation to the report dated 24 April 2019, the following results were produced: Item No Item Description Biological Fluid Testing Results 1b High vaginal swab The DNA recovered has the same profile as [the Complainant]. Additional DNA testing was carried out using Y-Filer Plus. The partial male DNA profile recovered has the same Y-Filer Plus profile as Andrew Thomas DADLEY (Barcode No. XPS00066550) and is also expected to match all males on his paternal line. Additionally, this partial profile is expected to occur in approximately 1 in 470 unrelated males in the general population. 1c Low vaginal swab The DNA recovered has the same profile as [the Complainant]. Additional DNA testing was carried out using Y-Filer Plus. The male DNA recovered has the same Y-Filer Plus profile as Andrew Thomas DADLEY (Barcode No. XPS00066550) and is also expected to match all males on his paternal line. Additionally, this profile is expected to occur in approximately 1 in 750 unrelated males in the general population 1e Endocervical swab Semen not detected

1. During the first trial, the Applicant had taken objection to Y-filer evidence relating to the Complainant's underwear and genital swabs, and made an application for exclusion on the basis of either relevance or under s 137 of the Evidence Act 1995 (NSW). [117] A considerable volume of material was placed before Bennett SC DCJ on the voir dire, including expert reports. Various experts were examined and cross-examined.
2. With respect to the DNA evidence from the genital swabs, the Applicant had submitted that there was "a significant risk of secondary transference", [118] and that the probative value of the DNA evidence from the genital swabs was low, for the following reasons: "Firstly, there is no evidence of sperm or seminal fluid and DNA testing for saliva was not undertaken. The DNA identified is trace DNA detected in very small quantities. Secondly, the DNA evidence was of such low concentrations that it could not be identified using a DNA profiler rather the evidence was obtained using y-filer. Y-filer evidence has a significantly low level of comparison compared to DNA profile. Whereas, DNA profile refers to the likelihood of a similar profile as 1 in 100 billion the y-filer refers to the profile occurring in 1 in 470 or 1 in 750. Thirdly, the use of partial y-filer significantly reduces the probative value. Finally, the risk of secondary transference is high. The complainant grabbed the accused and 'frogmarched him out the door'. There is a real prospect that trace quantities of DNA were transferred between 3am and 9pm. The complainant was observed by Mr. Richards in the bed where the accused slept. She sat in the house and no doubt touched her genitals and went to the toilet during the course of the day." The Applicant thereby submitted that the danger of misuse of the evidence was high, and that the evidence should be excluded.
3. In a decision of 12 February 2020, Bennett SC DCJ rejected the application to exclude the evidence in relation to the genital swabs, holding that it had significant probative value. His Honour outlined that he did not: "accept the submissions on behalf of the accused that the evidence ought to be excluded because of the risk of transference arising from of [sic] the location from which the swabs were taken. I have no[t] overlooked the acknowledgment that one cannot infer from this evidence alone how it was that the material from which the DNA was harvested was placed at the locations where the swabs were taken, including whether it was from any particular appendage of the accused. I have not overlooked the proposition to be advanced on behalf of the accused that there was at least the risk of transference from the circumstances in which the accused and the complainant were within that apartment, including that upon a test to which there is reference in the material, performed upon the accused, he was shown to be someone who sheds cells at a high rate, increasing the scope for him to have left cells with his DNA whenever his hands came into contact with other surfaces. I propose to allow the Crown to adduce the evidence of the DNA harvested from the vaginal swabs taken from the complainant".
4. As earlier explained, this ruling in effect carried through to the second trial and the Y-filer evidence was tendered and relied upon by the Crown. During the course of the trial, evidence was given by Ms Friedman and Dr Gock who, as explained above, had conducted an examination of the Complainant on the night of 9 December 2016.

Grounds of appeal

1. The Applicant relied upon the following grounds of appeal: "(i) The trial judge erred in admitting the y-filer evidence. (ii) The verdict of not guilty in relation to Count 1 is inconsistent with the verdict of guilty in relation to Counts 2 and 3 and the verdicts of guilty are unsustainable. (iii) The verdicts of guilty in relation to Counts 2 and 3 were unreasonable and cannot be supported having regard to the evidence".
2. It is convenient to deal with the inconsistent verdict and unreasonable verdict grounds first, reflecting the way in which argument was advanced on appeal.

Inconsistent verdicts

1. As has been outlined in a number of cases before the High Court and this Court, the test to be applied in considering a ground of appeal based on alleged factual inconsistency between verdicts is one of logic and reasonableness: see MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35 (MacKenzie); Nguyen v R [2021] NSWCCA 85 at [61] (Nguyen); Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59 at [10] (Keen); Bussey v R [2020] NSWCCA 280 at [58] (Bussey); Kim v R [2020] NSWCCA 288 at [26] (Kim); and Roos v R [2019] NSWCCA 67 at [42] (Roos). As was recently observed in Long (a pseudonym) v R [2021] NSWCCA 212 at [90], one cannot assume that different verdicts are inconsistent merely because a jury returns different verdicts with respect to different counts in respect of the same complainant.
2. In order to succeed on this ground, the test as stated by Devlin J in R v Stone (Court of Criminal Appeal (UK), 13 December 1954, unrep), and as approved by the High Court in MacKenzie at 366, is that the Applicant: "…must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
3. As Gleeson JA (with whom Harrison and Davies JJ agreed) outlined in Roos at [43], if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred, there citing MacKenzie at 367. See also Jafary v R [2018] NSWCCA 243 at [31] (Jafary).
4. Gleeson JA in Roos properly noted that it is to be kept in mind that a verdict of "not guilty" does not necessarily imply any "want of confidence" in the complainant, but "may simply reflect the cautious approach to the discharge of a heavy responsibility" (at 61), citing MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (MFA).
5. MFA was recently applied by this Court in Gage v R [2021] NSWCCA 222, where Fagan J (at 89) noted that the joint judgment in MFA identified two factors that may cause a jury rationally to return differing verdicts for multiple counts of sexual offending against a single complainant, namely that: (i) where there is no objective evidence of sexual offences some jurors may, reasonably, not be satisfied beyond reasonable doubt upon counts for which there is only the word of the complainant, without supporting testimony; and (ii) the jury may perceive that "the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others".
6. Similarly, recently in Nguyen at [63], Wilson J (with whom Bathurst CJ and Beech-Jones J agreed) outlined that it is "not universally the case that a not guilty verdict returned against one count points to the jury's rejection of the complainant as a witness of truth. A jury is entitled to, and should, take a far more careful and nuanced approach than that to assessing the reliability of witness testimony".
7. In Ganiji v R [2019] NSWCCA 208 at [13], Basten JA (with whom Button and Lonergan JJ agreed) said that, in a case where all counts rest on the evidence of a particular witness, a conviction on one count accompanied by acquittal on another does not, absent further analysis, necessarily demonstrate inconsistency. His Honour observed that: "The critical circumstance said to raise possible error is that both counts depended upon the jury accepting the evidence of the complainant. In such cases, it is necessary to have careful regard to the surrounding circumstances in order to determine whether there is a rational basis upon which it was open to the jury to accept the complainant with respect to one aspect of her evidence, but not with respect to other aspects." See also Keen at [9].
8. In Bussey at [61], Harrison J (with whom Hoeben CJ at CL and Bellew J agreed) said that an appellate court should not assume too readily that mixed verdicts are inconsistent, as mixed verdicts arise "from the burden and standard of proof, the requirement of separate verdicts and the role of the jury". See also Martin v R [2020] NSWCCA 192 at [68].
9. In the context of a case involving multiple sexual assaults against a single complainant, in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34] (Markuleski), Spigelman CJ observed that: "In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M v The Queen, MacKenzie and Jones quoted above." See also Jafary at [32].
10. In Jones v The Queen (1997) 191 CLR 439 at 453; [1997] HCA 56, it was observed in the joint judgment that: "The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count", and that: "It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count."
11. In R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130], Simpson J (as her Honour then was, and with whom McClellan CJ at CL and Latham J agreed) observed that: "Before… an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility… The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility." (emphasis in original). See also Bussey at [60]; Kim at [27]; and Jafary at [37].
12. As Payne JA said in Kim at [37], the Court must scrutinise the evidence and make its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment, the Court should properly be conscious of the advantage of a jury over an appellate court in that there would be aspects of the case that would not be reflected adequately in the written record. His Honour referred in this regard to MFA at [23], and ML v R [2015] NSWCCA 27 at [46].
13. Questions of fact and degree are involved in every case which may affect the ultimate assessment of the effect upon the credibility of the complainant in the particular case before the Court when the complainant's evidence is not accepted to the criminal standard on some counts: see Markuleski at [36] and [238].
14. In my opinion, the verdicts on Counts 2 and 3 were inconsistent in the requisite sense with the Applicant's acquittal on Count 1. This acquittal was explicable, in my view, only by doubts the jury must have held as to the Complainant's credibility. There were no other eyewitnesses and, as was submitted by Mr Johnston SC who appeared for the Applicant, the events founding the three complaints were so intertwined, both temporally and contextually, that it is a logical affront to accept the inconsistency between the acquittal and the convictions.
15. The Complainant's account which the jury heard as to what she said happened to her in Bedroom 2 (the scene of Count 1) was very detailed. It has been set out at [27] above. The jury was self-evidently unprepared to accept it to the requisite standard of beyond reasonable doubt, and this was so even though her accounts shortly after the event given to Mr Richards and Ms Merritt involved a degree of corroboration.
16. The Complainant's account of the events comprising Count 1 could not be divorced from her accounts of Counts 2 and 3. On her evidence, the matters constituting the underlying events took place over a short time continuum and really as part of a sequence which involved the Applicant: (i) first climbing on to the elevated bed in Bedroom 2, (ii) removing the Complainant's pyjamas, (iii) having penile-vaginal intercourse with the Complainant without, on one view of her account, the Complainant being conscious that this was happening, (iv) then, for reasons that were not obvious or apparent, choosing to move the Complainant (in a way which on her own evidence under cross-examination she could not remember [119] ) from that elevated bed (which involved either lifting her 67kg body over the sleeping rail or manoeuvring her down the ladder) into a second bedroom, and (v) then having further penile-vaginal intercourse with the Complainant until the Complainant suddenly realised what was happening and reacted by screaming at the Complainant and frogmarching him out of the apartment.
17. In oral submissions, Mr Johnston emphasised the following sequence of the Complainant's examination-in-chief to support his contention as to the interconnectedness of Count 1 with Count 2: [120] "Q. You said he guided you off the bed. What was the next thing that happened, if anything? A. I don't actually remember getting down off the bed. And then the next thing I really remember was being laid down on the single bed in the other bedroom and - sorry, and then he got back on top of me and started again. Q. When you say 'started again', what do you mean by that? A. He started having sex with me again, and put his penis in my vagina." (emphasis added).
18. The submission put, which I accept, is that the Complainant tied the first aspect of her account (which translated into Count 1) with the second aspect (which translated into Count 2). The description of Count 2 was built on a foundation of fact that Count 1 occurred.
19. Taking into account the non-exhaustive matters identified by Wood CJ at CL in Markuleski at [235], this was not a case where: (i) the Complainant's account to the jury as to what occurred in Bedroom 2 was accompanied by any concession on the Complainant's part as to the possibility of faulty recollection in contrast to what had occurred in Bedroom 1; (ii) the Complainant's evidence in relation to Bedroom 2 was any less particular than as to what had allegedly occurred in Bedroom 1; (iii) the Applicant's evidence only addressed what was alleged to have occurred in Bedroom 2, and not Bedroom 1; (iv) the acquittal was returned in relation to a less serious offence; or (v) the history of wrongdoing was lengthy and involved many incidents over a period of time, or conversely involved a large number of events within a very short time frame.
20. The absence of these matters renders it very difficult to identify a possible or plausible basis for differentiating the verdict of acquittal in respect of Count 1, and the verdicts of guilty in respect of Counts 2 and 3.
21. The Crown, as has been noted above, sought to draw a subtle and, on the facts of the present case, ultimately chimerical distinction between the Complainant's credibility and reliability, submitting that the explanation for any deficiencies in the quality of the Complainant's evidence affecting her reliability in relation to Count 1 lay in the fact that she was under "the considerable disadvantage of having been asleep at the time of the alleged assault combined with her having consumed a moderate quantity of alcohol". There are two difficulties with this submission.
22. First, the amount of alcohol consumed could not be described as "a moderate quantity", and if this was a factor which influenced the jury's assessment of the Complainant's reliability in respect of Count 1, the close temporal proximity, on her account, of Counts 1 and 2 does not supply a rational explanation for the different verdicts.
23. Secondly and perhaps more fundamentally, the submission to the effect that the Complainant was under "the considerable disadvantage of having been asleep at the time of the alleged assault" simply does not accord with the detailed tenor of her evidence in relation to Count 1. There was a real tension between the detail of the Complainant's account as to what the Applicant was said to have done in Bedroom 2 and other parts of her evidence, relied upon by the Crown, that she was half asleep and thought that she was dreaming.
24. The Crown also submitted that the fact that the Complainant's underpants were found in Bedroom 1 rather than Bedroom 2 "to the extent that the inference that they were removed in Bedroom 1 may suggest intercourse commenced there" provided a rational foundation for the guilty verdict in respect of Counts 2 and 3, even though no guilty verdict was returned in relation to Count 1. I am unable to agree.
25. The location of the Complainant's underpants in Bedroom 1 was inconsistent with her overall account and it was not in dispute that the Complainant was naked when she evicted the Applicant. No part of her account in relation to Count 2 involved the Applicant having removed her underwear in Bedroom 1. Moreover, the Complainant's evidence was that when she followed the Applicant on to the street after he had returned to collect his mobile phones, she got dressed and then returned to Bedroom 1 where, later that morning, after Ms Merritt and Mr Richards left, she went back to sleep. At what point the underpants that were found in Bedroom 1 were removed, and whether or not by the Complainant herself after she returned to the apartment having left it dressed to chase the Applicant, was not explored in the evidence.
26. The fact that the Complainant's underpants were found in Bedroom 1 (where the Complainant often slept in any event, there being two beds in that Bedroom) does not provide a rational explanation for the difference in verdicts. Nor does the Y-filer DNA evidence provide any basis for differentiating the verdicts in relation to Count 1, on the one hand, and Counts 2 and 3 on the other hand.
27. For these reasons, the challenge to the jury's verdict in respect of Counts 2 and 3 should be upheld.
28. In any event, for reasons explained below, even if the verdicts were not inconsistent, they were, in my opinion, unreasonable within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW).

Unreasonable verdicts

1. The principles applying to the consideration of an unreasonable verdict ground are well-known and well-rehearsed. In M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63, Mason CJ, Deane, Dawson and Toohey JJ stated that: "Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as 'unjust or unsafe', or 'dangerous or unsafe'. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s. 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. … 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." (footnotes omitted).
2. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the plurality outlined that: "11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: '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'. 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported, having regard to the evidence".' 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' ... 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".'" (footnotes omitted),
3. Further guidance was provided by the High Court in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] with respect to the role of the jury, as follows: "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 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. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. 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.'" (footnotes omitted). See also Rogerson v R; McNamara v R [2021] NSWCCA 160 at [199].
4. More recently, in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39], [43]-[45] (Pell), the High Court outlined that: "39 The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. … 43 At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing 'the unreasonableness ground' was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself: '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'. 44 The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms: 'But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the applicant's guilt.' (footnote omitted; emphasis in original) 45 As their Honours observed, to say that a jury 'must have had a doubt' is another way of saying that it was 'not reasonably open' to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M." (footnotes omitted).
5. Turning from these authorities to a consideration of the reasonableness of the jury's verdicts in respect of Counts 2 and 3, I have carefully reviewed the entirety of the evidence as the authorities require, mindful of the necessary advantages that a jury possesses in relation to assessing the witnesses giving evidence before it.
6. One matter strongly emphasised on behalf of the Applicant was the inconsistency between the Complainant's account and Mr Richards' account of the Applicant's state of dress at the time he was "frog-marched" by the Complainant to her front door. According to the Complainant, the Applicant had no pants on when she became conscious that he was having intercourse with her in Bedroom 1, and she kicked and grabbed him and, on her own account, virtually instantaneously dragged him to the front door and kicked him out of the apartment whilst still without his pants or underpants (see [35] above). On the other hand, Mr Richards' account was that the Applicant was fully clothed when he observed the Applicant being despatched from the premises. This was no trivial or small inconsistency.
7. No question was raised about Mr Richards' credibility or reliability as a witness and, on any view, he had had considerably less to drink than the Complainant at the Christmas party, and had abstained from a gin and tonic when he returned to the Complainant's apartment with the Applicant. The Crown's written submissions suggested that Mr Richards may not have accurately perceived the Applicant's state of dress, but this was not put to him and his evidence in this regard was unchallenged at trial.
8. Mr Richards' unchallenged evidence in this regard was entirely consistent with the Applicant's account of events, including that he was and at all times remained fully clothed, including when he was confronted by the Complainant hitting him and screaming at him, and when he was thrown out of the apartment. The tension between Mr Richards' account of the Applicant's state of dress and the Complainant's account should have raised a serious doubt as to the credibility of her account as to what had occurred in Bedroom 2, especially given the very short space of time, on her account, between her kicking him and becoming alert to what was happening to her, and throwing the Applicant from the apartment. That account did not admit of the possibility of the Applicant having put his underpants and jeans back on before being thrown out.
9. Mr Johnston submitted that Mr Richards' evidence in this regard was unchallenged evidence directly inconsistent with the Complainant's account in a significant respect which required the jury, acting rationally, to have entertained doubt as to the Applicant's guilt. He called in aid the significance placed by the High Court on the unchallenged evidence of Monsignor Portelli in Pell.
10. In my view, the important tension in the evidence between that of the Complainant and that of Mr Richards, and the unchallenged nature of the latter should only have compounded the doubt that the jury undoubtedly did have as to a significant component of the Complainant's account, namely as to what had occurred in Bedroom 2. As has been noted in the previous section of these reasons, the jury was not satisfied beyond reasonable doubt as to what the Complainant said had transpired. It was for this reason that the Applicant was acquitted on Count 1.
11. The position was further compounded by the Complainant's assessed state of intoxication at the time of the alleged assaults (see [24] above) and the implausibility in aspects of her account, including that the Applicant removed the Complainant's pyjamas and underwear without her knowledge or without waking her; the Applicant inexplicably ceasing sexual activity in Bedroom 2 for the purpose of moving the Complainant to Bedroom 1 and recommencing sexual intercourse without consent there; that the Complainant was not awake whilst this occurred; and the significant practical difficulties of moving the Complainant off the raised bed in Bedroom 2 into Bedroom 1, whilst the Complainant was not awake.
12. Together, these matters must, in my view, have caused a doubt in the mind of the jury as to whether or not the Applicant was guilty in respect of Counts 1 and 2. That doubt would, moreover, have been reinforced by the Applicant's own words and tone at the time of the alleged assaults - "What's going on? What are you doing? Why are you hitting me?", and his subsequent questions to Mr Richards "Do you know what's happening? I just woke up. She was kicking me." [121]
13. It is impossible to escape the conclusion that the fragment of DNA which was detected in the Complainant's vagina was critical to the jury's returning of a verdict against the Applicant. But there were a number of difficulties with that evidence.
14. One particular difficulty emerged from the following passage of evidence of Ms Friedman in chief during the trial: [122] "Q. Just in relation to the evidence you've given about the results. You tested 5 various swabs that were taken inside the vagina. Is there any factors that are relevant to how long DNA stays in, say, for example, the areas that you tested, the swabs, to the high vagina, the low vagina and the vulva? A. Yes, a lot of tests have been done to look at the persistence of cells or - and DNA in the vaginal orifice. It's - it's termed as the vaginal orifice. It's a hostile environment. The sperm that are - necessarily have to travel through the vagina to impregnate an egg in reproduction have to be coated in a fairly thick coat to withstand the processes that the female body has in place to get rid of any foreign DNA, to make sure that they - there's less likelihood of infection. So any DNA that's placed into the vagina can be subject to degradation, dilution by vaginal fluid, drainage simply by gravity and this happens over a period of time. The - it's - the DNA that is deposited into that area doesn't have a thick coating such as a sperm cell. In other words, it's just a skin cell or that type of cell. It doesn't survive for very long. Current testing and investigations indicate that skin cells don't survive for very long. The current guidelines I believe are up to 12 hours, but we're looking at extending it possibly to within 24 hours. Q. And you later note that you didn't find any semen on the swabs, but you found DNA. A. Yes. Q. Are you able to say what particular DNA it is? A. I can't say for certain where the DNA came from, other than most likely from skin cells of some sort." (emphasis added).
15. The significance of this passage of evidence and, in particular, the evidence which has been emphasised in italics is that the swabs of the Complainant's vagina were taken at some time between the hours of 8pm-9.30pm, whereas the alleged assaults occurred at or about 3.00am, that is to say, more than 17-18 hours earlier. This fact, coupled with Ms Friedman's evidence and the absence of any detection of semen in the Complainant's vagina, had a twofold significance.
16. First, it suggested that, to the extent that the jury reasoned that the fragment of DNA was that of the Applicant, it had survived notwithstanding Ms Friedman's evidence which was to the effect that it would not have survived for more than 12 hours.
17. Secondly, it necessarily increased the likelihood that the DNA had been innocently transferred at some time within the 12 hours preceding the Complainant's examination. This was what was described as a secondary transfer.
18. In this context, it is to be recalled that the Complainant would have picked up traces of the Applicant's DNA when physically dragging or "frog marching" him out of the apartment shortly after 3.00am. The evidence of the Applicant, the Complainant and Mr Richards was consistent in this regard and, as also noted earlier in these reasons, the Complainant's actions resulted in the Applicant sustaining significant scratching to his ear and face. The Applicant's skin cells and thus DNA would therefore likely have been transferred to the Complainant's hand by this means. The possibility could not be excluded that the Complainant had at some stage subsequently touched her vagina in the course of the 12 hours preceding her medical examination.
19. There was also the possibility that the Complainant could have picked up traces of the Applicant's DNA when she returned naked to the bed in Bedroom 1 and placed herself under the doona, as recounted by Mr Richards, before a little later putting her clothes on to follow the Applicant on to the street.
20. In this context, Mr Johnston emphasised that Ms Friedman ultimately accepted that in terms of the male DNA detected, she could not "say whether the DNA is more likely to have originated there through primary or secondary transfer". [123] Earlier in her evidence, she had said that she could not say how the small trace of male DNA that was detected in the Complainant's vagina had got there: "I can't say how the DNA got there. All I can say is that something that has DNA on it that matches Mr Dadley has been inserted into that area." [124]
21. Mr Johnston submitted that the equivocality of this evidence was reinforced by the absence of any evidence of semen being detected in the Complainant's vagina as a result of the testing that was undertaken on the evening of 9 December 2016. In oral address, he contended that: "In this instance, because it was such a small quantity, because it wasn't semen, and because it's effectively microscopic and nobody can see where its' sourced from, that it doesn't ultimately assist in the resolution of that particular point as to whether it was through primary or secondary transfer. That's where the concern is raised on behalf of the applicant in this matter, in which there is a risk of misusing the evidence to give it some form of elevated significance that it's somehow consistent with sexual intercourse. Yes, it is consistent with sexual intercourse, but it's equally consistent with secondary transfer."
22. The Applicant relied upon the evidence from the Y-filer results of male DNA other than that of the Applicant being detected on the left hip of the Complainant's underwear as illustrating the ease of secondary transfer of DNA traces. Thus, Ms Friedman was asked: [125] "Q. On the assumption that [the Complainant] had no direct physical contact with a male in a sexual context other than what's alleged in this matter, it certainly suggests that the male DNA that was detected on the left hip, for example, could well be the product of some form of secondary or tertiary transference. Is that correct? A. That's possible. Yes. Q. And, from your point of view when you're analysing it, there's no way of determining firstly, how long that male DNA on the left hip had been there. Is that correct? A. Correct. Q. And, it's not possible to determine whether the three or more different sorts of male DNA got there at the same time or at different times. Is that correct? A. They could have been at different times or similar times. Yes. Q. Now, that process of secondary transference or tertiary transference, there's any number of possibilities as to how that could take place but one example may well be that [the Complainant], at some stage or another, has shaken hands with a male during the course of an evening and then, sometime later, used that same hand to push her underpants down at some point. Perhaps when she's going to the toilet? A. Yes. That's possible."
23. In DPP v Wise [2016] VSCA 173 at [69]-[70], the Victorian Court of Appeal (Warren CJ, Weinberg and Priest JJA) observed: "As we have said, when the DNA evidence is properly evaluated, the presence of the respondent's DNA in the underpants can establish no more than that MA had come into contact with the respondent, or with some other person or object that had come into contact with the respondent. It may be that the presence of respondent's DNA inside the underpants is explicable by transference connected with oral sex, but, at the risk of repetition, in our view to attempt to draw an inference to that effect would be wholly speculative. The presence of Ms VL's DNA in the mixture means that it would not be open safely to hypothesise other than that the presence of the respondent's DNA may have been attributable to transference in the course of other activities during the events at LR's house. Thus, as we have said, the evidence from the first sample has no (or very little) probative value. Moreover, one of the dangers associated with DNA evidence, is what has come to be known as the 'CSI effect'. The 'CSI effect' is a reference to the atmosphere of scientific confidence evoked in the imagination of the average juror by descriptions of DNA findings. As we have explained, as a matter of pure logic, the DNA evidence has little or no probative value. By virtue of its scientific pedigree, however, a jury will likely regard it as being cloaked in an unwarranted mantle of legitimacy - no matter the directions of a trial judge - and give it weight that it simply does not deserve. The danger of unfair prejudice is thus marked, and any legitimate probative value is, at best, small." See also Director of Public Prosecutions v Paulino (2017) 54 VR 109; [2017] VSCA 38 at [103].
24. Contrary to a submission made by the Crown, the Y-filer DNA evidence was incapable of overcoming the other considerations detailed earlier in these reasons that rendered the jury's verdict in relation to Counts 2 and 3 unreasonable. Indeed, in view of the evidence of Ms Friedman as to the inability of DNA to survive in the vagina for more than 12 hours and which is set out at [117] above, that 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.

Admission of Y-filer evidence

1. As has already been noted, the Y-filer evidence was the subject of objection at the first trial before Bennett SC DCJ and the Applicant was effectively bound by this decision by reason of s 130A(3) of the Criminal Procedure Act.
2. In view of the conclusions I have reached in relation to inconsistent and unreasonable verdicts, it is strictly not necessary to address this issue, although it must be noted that the key evidence of Ms Friedman to which I have referred at [117], [123] and [125] above was adduced at the second trial and not in the course of the voir dire before Bennett SC DCJ.
3. On the evidence before his Honour on the voir dire, I am not satisfied that there was any error in admitting it, although the matter was very finely balanced. Had the evidence referred to above been elicited on the voir dire, I may well have taken a different view.

Conclusion

1. It follows from the above that the Applicant should be granted leave to appeal, his appeal allowed, his conviction quashed and sentence set aside.
2. WALTON J: After reviewing the evidence, I agree with the orders proposed by Bell P for the reasons given by His Honour.
3. BELLEW J: I have had the advantage of reading, in draft, the judgment of Bell P, and I have undertaken my own review of the evidence. I agree with the orders proposed by his Honour, for the reasons his Honour has given.

Endnotes

1. Tcpt, 12 February 2020, 104:40-42.
2. Tcpt, 22 July 2020, 23:26-27.
3. Tcpt, 22 July 2020, 24:19-28.
4. Tcpt, 12 February 2020, 106:30-37.
5. Tcpt, 22 July 2020, 25:16-30.
6. Tcpt, 27 July 2020, 187:14-41.
7. Tcpt, 22 July 2020, 25:36-46; 26:30-31, 42-48.
8. Tcpt, 12 February 2020, 109:37-38.
9. Tcpt, 12 February 2020, 110:7-11.
10. Tcpt, 12 February 2020, 109:40-47.
11. Tcpt, 22 July 2020, 27:17-32.
12. Tcpt, 22 July 2020, 27:10-15.
13. Tcpt, 12 February 2020, 110:13-29.
14. Tcpt, 12 February 2020, 109:33-38.
15. Tcpt, 13 February 2020, 157:1-2.
16. Tcpt, 13 February 2020, 105:47-50.
17. Tcpt, 13 February 2020, 150:35-37.
18. Tcpt, 12 February 2020, 106:22-24.
19. The expert evidence was that any person who is at that concentration will display signs of impairment: Tcpt, 24 July 2020, 174:48-175:10.
20. Tcpt, 27 July 2020, 186:45-46.
21. AB 138.
22. Tcpt, 27 July 2020, 193:4-9.
23. Tcpt, 27 July 2020, 193:11-14.
24. Tcpt, 12 February 2020, 110:48-50.
25. Tcpt, 12 February 2020, 111:18-21.
26. Tcpt, 12 February 2020, 111:23-112:11.
27. Tcpt, 27 July 2020, 194:4-6.
28. Tcpt, 13 February 2020, 164:20-21.
29. Tcpt, 13 February 2020, 164:38-49.
30. Tcpt, 13 February 2020, 165:6-17.
31. Tcpt, 12 February 2020, 112:7-14.
32. Tcpt, 12 February 2020, 113:19-21.
33. Tcpt, 12 February 2020, 112:16-31.
34. Tcpt, 13 February 2020, 163:25-164:6.
35. Tcpt, 12 February 2020, 112:33-38.
36. Tcpt, 12 February 2020, 113:36-45.
37. Tcpt, 12 February 2020, 114:19-28.
38. Tcpt, 13 February 2020, 137:50-138:1.
39. Tcpt, 13 February 2020, 167:27-32.
40. Tcpt, 13 February 2020, 167:43-50.
41. Tcpt, 22 July 2020, 29:8-10.
42. Tcpt, 22 July 2020, 29:13.
43. Tcpt, 22 July 2020, 29:15-31:10.
44. Tcpt, 22 July 2020, 43:23-24.
45. AB 144.
46. Tcpt, 28 July 2020, 284:17-20.
47. Tcpt, 27 July 2020,193:37-194:36.
48. Tcpt, 12 February 2020, 114:37-115:8.
49. Tcpt, 22 July 2020, 31:12-32:10.
50. Tcpt, 22 July 2020, 32:36-33:1.
51. Tcpt, 12 February 2020, 115:45-47.
52. Tcpt, 12 February 2020, 115:49-116:5.
53. Tcpt, 22 July 2020, 33:35-50.
54. Tcpt, 22 July 2020, 34:7-10.
55. Tcpt, 22 July 2020, 34:28-30.
56. Tcpt, 22 July 2020, 34:33-48.
57. Tcpt, 22 July 2020, 35:41-49.
58. Tcpt, 22 July 2020, 36:1-6.
59. Tcpt, 12 February 2020, 116:16-44.
60. Tcpt, 23 July 2020, 48:14-15.
61. Tcpt, 12 February 2020, 116:26-44.
62. Tcpt, 12 February 2020, 117:4-8.
63. Tcpt, 12 February 2020, 117:36-40.
64. Tcpt, 13 February 2020, 173:38-174:14.
65. Tcpt, 23 July 2020, 48:28-29.
66. Tcpt, 23 July 2020, 48:37-42.
67. Tcpt, 23 July 2020, 48:41.
68. Tcpt, 23 July 2020, 48:46-48.
69. Tcpt, 23 July 2020, 49:3-9.
70. Tcpt, 23 July 2020, 49:23.
71. Tcpt, 23 July 2020, 49:20-30.
72. Tcpt, 23 July 2020, 49:32-35.
73. Tcpt, 23 July 2020, 50:1-6.
74. Tcpt, 23 July 2020, 50:8-13.
75. Tcpt, 23 July 2020, 50:15-26.
76. Tcpt, 23 July 2020, 50:40-43.
77. Tcpt, 23 July 2020, 51:1-7.
78. Tcpt, 12 February 2020, 117:4-8.
79. Tcpt, 12 February 2020, 117:10-40.
80. Tcpt, 12 February 2020, 117:23-26.
81. Tcpt, 23 July 2020, 51:9-19.
82. Tcpt, 23 July 2020, 51:21-28.
83. Tcpt, 23 July 2020, 52:1-8, 13-15.
84. Tcpt, 22 July 2020, 38:3-20, and see [12] above.
85. Tcpt, 12 February 2020, 118:1-7.
86. Tcpt, 12 February 2020, 118:13-15.
87. Tcpt, 13 February 2020, 138:33-48.
88. Tcpt, 12 February 2020, 118:34-40.
89. Tcpt, 22 July 2020, 44:46-48.
90. Tcpt, 22 July 2020, 44:40-44.
91. Tcpt, 13 February 2020, 139:17-35.
92. Tcpt, 13 February 2020, 133:11-24.
93. Tcpt, 23 July 2020, 55:1-13.
94. Tcpt, 13 February 2020, 173:27-31.
95. Tcpt, 23 July 2020, 56:7-11.
96. Tcpt, 23 July 2020, 56:22-29.
97. Tcpt, 23 July 2020, 57:26-31.
98. Tcpt, 23 July 2020, 57:33-37.
99. Tcpt, 23 July 2020, 57:39-44.
100. Tcpt, 23 July 2020, 57:48-49.
101. Tcpt, 23 July 2020, 58:2-9.
102. Tcpt, 13 February 2020, 133:26-41; Tcpt, 23 July 2020, 59:29-34.
103. Tcpt, 23 July 2020, 59:33-34.
104. Tcpt, 13 February 2020, 133:47-134:1.
105. Tcpt, 23 July 2020, 59:41-46.
106. Tcpt, 23 July 2020, 59:45-46.
107. Tcpt, 23 July 2020, 65:30-31.
108. Tcpt, 23 July 2020, 60:7-15.
109. Tcpt, 13 February 2020, 134:11-25.
110. Tcpt, 23 July 2020, 68:12-13.
111. Tcpt, 13 February 2020, 134:30-37.
112. Tcpt, 13 February 2020, 139:42-50.
113. Tcpt, 13 February 2020, 134: 39-49.
114. AB 151.
115. AB 189.
116. AB 196.
117. AB 547.
118. AB 550.
119. Tcpt, 13 February 2020, 162:10-12.
120. Tcpt, 12 February 2020, 112:7-14.
121. See [43] above.
122. Tcpt, 24 July 2020, 158:4-30.
123. Tcpt, 24 July 2020, 168: 34-37.
124. Tcpt, 24 July 2020, 168:23-24.
125. Tcpt, 24 July 2020, 164:19-41. 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: 09 November 2021