Criminal Law - Appeal and new trial - Particular grounds of appeal - Inconsistent verdicts - Appellant convicted of rape but acquitted of aggravated sexual assault - Incidents separated in time - Stronger evidence as to rape.

MacKenzie v The Queen (1996) 190 CLR 348, referred to.

Criminal Law - Appeal and new trial - Fresh evidence - Materiality and cogency - Other cases - Rape - Potential defence witness not called at trial.

R v Abou-Chabake [2004] NSWCCA 356, 149 A Crim R 417, referred to.

Criminal Law - Appeal and new trial - Conduct of prosecutor or prosecution - Addresses - Personal opinions - References to consequences of verdicts.

R v Livermore [2006] NSWCCA 334, 67 NSWLR 659; Causevic v The Queen [2008] NSWCCA 238, 190 A Crim R 416, referred to.

Judgment Number: [2017] TASCCA 17

1. This appeal should be dismissed, for the reasons stated by Martin AJ.

1. After a short trial in which the appellant gave evidence, he was found guilty by a jury of rape. However, he was found not guilty of a charge of aggravated sexual assault. The appellant appeals against his conviction on grounds related to the opening and closing addresses of the prosecutor and on the basis that the verdict is "unsafe and unsatisfactory in all of the circumstances". In addition, the appellant seeks to place before the Court evidence which was not led at the trial and which the appellant contends demonstrates that a miscarriage of justice has occurred.
2. For the reasons that follow, in my opinion the appeal should be dismissed.

1. The events in question occurred 13/14 April 2014. At that time the female complainant was aged 19 years. In 2013 the complainant was in a relationship with a female person, Ms A, but that relationship ended in February 2014. Ms A introduced her to the appellant and it is common ground that during 2013 the complainant and Ms A were friends with the appellant and regularly spent time at the home of the appellant smoking marijuana and "hanging out". In evidence the complainant said that she and Ms A spent "a fair bit of time" at the home of the appellant and usually stayed overnight in a spare room because they did not wish to drive home under the influence of marijuana.
2. In April 2014 during Facebook messaging, the appellant invited the complainant to his home. It was the first occasion on which the complainant had attended at the appellant's home on her own. She said they spent the evening "hanging out" in the appellant's shed outside his house. The shed contained a TV and couches.
3. During the evening the appellant consumed alcohol and both smoked cannabis. The complainant did not consume alcohol. According to the complainant, the appellant remarked about her loss of weight and spoke jokingly about wanting to sleep with her:

Q: Right. Was there any comments by [DJK] about that?

A: Yes, [DJK] made a few comments how I - how I looked good and how I made - lost lots of weight. There were a few comments, like you know, ha ha to jokingly about wanting to sleep with me and things like that and I just brushed it off and said, 'Oh no, because of [Ms A], not interested,' sort of thing and that was sort of the end of it with the comments.

A: It wasn't really anything. It was all just a friend, light hearted - ...

Q: So that was - okay. Thank you. All right. But you - so you thought of him at that point as a friend and that's why you were hanging out?

1. The complainant gave evidence that she was under the influence of cannabis and, for that reason, did not drive home. As there was another person living with the appellant at that time and occupying the main bedroom, the complainant slept in the spare bedroom where she and Ms A had previously slept, but on this occasion she shared the bed with the appellant. According to the complainant she was fully clothed, as was the appellant. Asked whether she was concerned that she was sleeping in the same bed with the appellant, the complainant replied:

"Not at all. I was just staying at my friend's house. It wasn't even anything that crossed my mind. I'd stayed there many times before. Thought it was just like normal."

1. As to the particular events that formed the subject of the charge of rape, the complainant gave the following evidence:

1. Yes, yep. Fell asleep pretty much straight away.

A: I remember waking up - sorry, I remember waking up to [DJK] being inside of me. He was moving quite fast, so I have a feeling that's what may have woken me up. I remember just waking up to him inside of me, yeah.

Q: Okay. And I think it's pretty that by that you mean his - his penis was inside your vagina?

Q: Where was his body positioned in relation to yours?

A: Behind me, so we were in a spoon sort of way, so I was facing towards the wall and he was behind me.

A: I remember they were pulled below - just down past my bottom.

A: I froze - I froze I didn't know what to do, I didn't - I didn't wake up like - well I woke up but like I didn't let him know I was awake I just - I did not know what to do, I was really scared and I just - I just froze - I froze.

A: No, only - from what I was awake for it was about a minute or so, I reckon.

A: But I was awake for was probably about a minute.

Q: All right. So after that minute, after - after he stopped, what did you do?

A: I just lied there for a little bit, he didn't know that I was awake and I eventually just fell back asleep, I didn't know what to, I was in a position where I couldn't drive or anything and I hadn't really thought about it to be honest, I was just - I just froze.

1. According to the complainant, after she fell asleep the next she knew was waking in the morning on her side and finding that the appellant's hands "were coming from behind down and he was playing with my vagina". At that time she was fully clothed, but the appellant's hands were inside her clothing and his finger was inside her vagina. The complainant gave the following evidence:

A: So, when I woke up to that in my head I - I didn't want to accept what had happened the previous night and I thought that if I did sleep with him in my head I wouldn't go through thinking I had - that had happened to me.

A: So in that moment I actually stupidly reached back and I was going to have sex with [DJK] and I reached back with my right hand and I remember I grabbed his penis and then straight away I realised it wasn't what I wanted, it's not going to make what happened last night okay, and I just stopped - I let go and I told him I - I can't do it, like I don't want to do it, and that was that. He - he was okay with it and there was no pushing he didn't push it or anything like that.

Q: Okay. And when you - when you say you grabbed his penis, again, did you have your hand - on his skin?

A: Yeah, yeah, I think it was from - from what I remember I remember reaching back and I think a little bit of it was out.

Q: So, so you said he was okay with that you not being able to go - to do it. So - so what did you do after that?

A: I basically just told him that it won't be happening sort of thing and I had a ciggie and I left straight away.

Q: Did you say anything to him about what had happened the previous night?

1. The incident described by the complainant involving the appellant inserting his finger into the complainant's vagina while she was asleep was the subject of the charge of aggravated sexual assault of which the appellant was found not guilty.
2. The appellant gave evidence. He said he spoke to the complainant about how good she looked and how proud he was of her for the amount of weight she had lost, but denied asking her to have sex with him or being attracted to her in that way. The complainant having said she was wearing leggings, the appellant maintained she was wearing jeans.
3. According to the appellant, when he and the complainant returned to the house from the shed, he asked her whether she wanted to sleep on the couch or stay in his room and "snuggle". The complainant replied that she was "happy enough to come and stay in my bedroom and snuggle". The appellant described lying in bed in a "spooning/cuddling" position and said he fell asleep immediately. There was no kissing or anything of a sexual nature. The appellant said his next memory was waking up in the morning and they were "still cuddling". He denied that any act of intercourse had occurred during the evening.
4. As to the events in the morning, the appellant said that while in a cuddling position he had his hand on the side of the complainant's leg and started rubbing her leg in the area of her thigh. The appellant then gave the following evidence concerning the complainant's reaction and his actions:

A: On the side of the thigh. Then she rolled over onto her back, we started kissing, that's when I put my hand on the outside of her vaginal area on top of her clothing and that's when she reached over and put her hands in my pants and started playing with my penis for about 30 seconds before she said, 'Look, I can't do this', and I said, 'Look that's fine. I understand', and stopped and about five minutes later we got up. I asked her if she wanted a coffee or anything and she said, 'No'. She just sat down on the couch and had a smoke so I sat down on the couch with her and had a smoke and we just said, 'Goodbye'."

1. The complainant having left the appellant's house at somewhere around 9am on 14 April 2014, at 2.14pm that day the appellant sent a message to the complainant via Facebook saying that he hoped her day had been good and that Ms A was a bit better. The complainant did not respond to that message and on 15 April at 10.22am the appellant sent the following message:

"Hey hows ur day? I end up hearing back from ya hope everything is ok? Hope url not upset with me at all? X."

1. At 3.55pm on 15 April, the complainant not having replied to the earlier message, the appellant wrote:

1. At 9.18pm on 15 April 2014 the complainant replied to the appellant:

1. The appellant replied almost immediately saying:

"I thought u wanted to but couldn't cause of [Ms A] R u angry at me?

1. Early on 16 April 2014 the appellant sent another message to the complainant asking her to reply and also asking whether she was not talking to him anymore. Similar messages followed during the day.
2. In examination the appellant was asked what he thought the complainant was referring to when she wrote "You know exactly what you have done". He replied: "The morning instigating the touching and the kissing".
3. During cross-examination the appellant said he felt "a bit awkward" about the events of the morning, but he was upset and did not understand why the complainant was not talking to him. He agreed he thought the touching as he described was the incident to which the complainant was referring, but it did not occur to him to respond with words to the effect that she was touching him too.
4. The remaining evidence led by the Crown can conveniently be described as evidence of complaints made by the complainant to Ms A, her parents and a medical practitioner. The complainant first spoke to Ms A a couple of days after the events and a few weeks later she spoke briefly to her parents. Following encouragement by her mother, the complainant consulted a medical practitioner on 29 May 2014. Given the lapse of time, a medical examination was not undertaken.

1. Ground 1 of the notice of appeal related to a ruling excluding evidence of prior sexual activities involving the appellant, the complainant and Ms A. The ground was abandoned. However, it is appropriate to note that the picture given to the jury of the relationship between the appellant and the complainant was incomplete. Prior to the occasion in question, the complainant and Ms A had engaged in two consensual sexual encounters involving the appellant by way of a "threesome". The trial judge declined to admit evidence of those occasions because they did not possess direct and substantial relevance to an issue in the trial. On this basis the evidence was inadmissible by reason of the operation of s 194M of the Evidence Act 2001.

1. Grounds 2-4 concern the opening and closing remarks of the prosecutor:

"2 The prosecutor in his opening and closing made many references to the complainant's youth and naïveté. Such comments being unfair given the trial judge's ruling regarding s 194M of the Evidence Act, and creating a view of the complainant which was artificial.

1. That the prosecutor's closing address was not fair or temperate and expressed personal opinions unfair to the accused on numerous occasions.
2. The prosecutors closing address unfairly suggested that the complainant would not have lied or been capable of lying, and essentially called upon the jury to speculate why the complainant would lie and make up this account."
3. In summary, the appellant's written submissions advance the following contentions:
   • The opening and closing remarks did not comply with the guidelines issued to prosecutors by the Director of Public Prosecutions pursuant to s 12 of the Director of Public Prosecutions Act 1973.
   • The opening and closing addresses fell foul of the principle that they should be "fair and avoid language likely to excite undue prejudice or emotion".
   • The structure of the opening was inappropriate:

(i) It did not indicate that the State would call evidence and the jury would need to assess the evidence.

(ii) The opening was more in the form of a narrative.

(iii) The form of delivery might have presented in the minds of the jury that the prosecutor had already assessed the evidence and formed the view that the role of the jury was simply to "rubber stamp" the view of the prosecutor by finding the appellant guilty.

(iv) There were repetitive and inappropriate references to the prosecutor's personal view that the complainant was "young and naïve".

(v) The jury was not told that it was their role to determine whether the complainant was naïve.

(vi) The references to naïveté were particularly objectionable and misleading given the knowledge of the prosecutor concerning the prior sexual relationship between the complainant and the appellant.

(vii) The learned trial judge failed to give a direction to the jury at the conclusion of the opening address correcting the errors of the prosecutor.

(i) The prosecutor erred in speaking as if he and the jury were "one" as reasonable members of the community in interpreting the meaning of free agreement in the context of sexual intercourse.

(ii) In referring to consent being a defence, the prosecutor reversed the onus of proof and created the impression that the appellant was required to answer the questions he posed the jury.

(iii) In concluding with remarks that "you'll have to find him guilty", the prosecutor was pressing for a conviction in an impermissible manner.

(iv) The remarks of the prosecutor were "unnecessarily emotive" and "expressed the prosecutor's opinion".

(v) The prosecutor misstated the evidence concerning the morning events.

(vi) In the absence of expert evidence, the prosecutor expressed personal opinions concerning the effects of cannabis in the context of the complainant's loss of weight.

(vii) To the extent that the prosecutor attempted to draw an analogy as to how a parent would feel if their child drowned in a swimming pool, the remarks were intemperate and inflammatory and likely to arouse prejudice or emotion in the jury.

(viii) The prosecutor's remarks concerning the evidence of the appellant as to the clothing worn by the complainant again expressed a personal opinion and introduced a suggestion that defence counsel and the appellant had colluded to tailor or construct a version concerning the clothing. This suggestion was made in the absence of cross-examination to suggest recent invention.

1. The appellant's ultimate contention was that the cumulative effect of the opening and closing addresses by the prosecutor resulted in a miscarriage of justice.
2. The issue is, of course, not whether the addresses of the prosecutor complied with the guidelines issued by the Director of Public Prosecutions. Speaking broadly, the issue is whether the remarks were unfair and, if so, whether they resulted in a miscarriage of justice.
3. It is unnecessary to canvas each of the remarks or passages of remarks to which the appellant has drawn attention. While there was one minor factual inaccuracy, and on more than one occasion the prosecutor inappropriately expressed personal opinions (a fault repeated by defence counsel), the remarks were far removed from the intemperate and inflammatory type of comments reflected in the authorities and which have resulted in miscarriages of justice.
4. The appellant placed particular emphasis on the prosecutor's reference to the complainant as a "young naïve girl". In opening, when referring to the complainant getting into bed with the appellant, the prosecutor said:

"You might be thinking she's pretty naïve and I suspect you'll get that impression when you hear her evidence but that's what happened."

1. After referring to the complainant waking up and realising that the appellant was having sexual intercourse with her, the prosecutor said:

"She was shocked as you'd imagine. She was young and naïve. Shocked about this, didn't know what to do, froze in fact. Didn't scream out, didn't really do much at all but she says very soon after she wakes up and realising what's happened he stops.

She lies there in the dark, not really knowing what to do and shocked about what happened, this young naïve girl and eventually falls back to sleep again. Of course she was to some extent affected by the cannabis she's had also. She wakes up the next morning and when she wakes up he is touching her, in fact he had his finger or fingers inside her vagina and again she - what do I do now given what's happened last night, given the situation she's in, this young and I describe her as quite a naïve girl."

1. At the conclusion of the opening by the prosecutor, counsel for the appellant complained that the references by the prosecutor to the complainant as naïve were unfair because counsel was unable to cross-examine the complainant about her sexual history with the appellant. The trial judge responded as follows:

"I accept that Mr Shapiro's opening was what I might describe as slightly overly emotive but at the end of the day the jury will be directed that whatever either counsel said in opening statement is not evidence and that it's the evidence that they have to rely on, not what counsel's view of it may or may not be. It will also be for a jury to assess a witness; I don't know what [the complainant] - how she's going to come across. She may very well come across as young, naïve and whatever I don't know but that will be a matter for the jury and the jury will be firmly told that."

1. The discussion between counsel and the trial judge then turned to questioning the complainant about the bed in which she had previously slept. The trial judge made it clear that counsel for the appellant was entitled to ask questions to establish that there were previous occasions on which the complainant and the appellant had slept in the same bed.
2. Counsel for the appellant did not ask the trial judge to give a direction to the jury concerning the prosecutor's assertion that the complainant was naïve. Nor did counsel ask the trial judge to revisit her ruling that evidence could not be adduced concerning the prior "threesome" sexual activities.
3. In his closing address, the prosecutor asserted that the complainant was "obviously young and naïve to get into that bed" and continued:

"You know, I suspect, you know mostly - most women with more life experience wouldn't have got in that bed with him, but she was young and naïve, that's why she did, and she's explained that. It's completely understandable that she would have trusted him in that circumstance."

1. Later in his address the prosecutor submitted that the complainant did not expect the breach of trust to occur and said:

1. Subsequently the prosecutor submitted that the response of the complainant in the morning was "consistent with this young naïve girl confused about what - what's happened the night before ...".
2. Immediately upon completion of the closing address by the prosecutor, counsel for the appellant addressed the jury. Counsel did not ask the trial judge to give any direction to the jury concerning the address of the prosecutor.
3. The trial judge commenced her summing-up immediately following the closing address by counsel for the appellant. After initial directions on matters common to every trial, the jury were sent away and the prosecutor asked the trial judge to give a direction concerning an aspect of the address by counsel for the appellant. The discussion concerning that issue continued the next morning and the trial judge indicated she would give a direction correcting that particular aspect of the defence address. Her Honour then asked whether there was "anything else" and counsel for the appellant answered in the negative. There was no complaint or request to give a specific direction about any aspect of the address by the prosecutor. Nor was there any such complaint or request the next day at the conclusion of the summing-up.
4. The appellant's case that the prosecutor's repeated references to the complainant as young and naïve either individually, or in combination with other features of the prosecutor's addresses, caused a miscarriage of justice faces significant hurdles. To some extent the appellant was placed in a disadvantageous position because the evidence concerning the two occasions of a threesome had been ruled inadmissible. However, although the appellant had indicated at the outset of the trial that the issue was whether the act of intercourse occurred, the prosecution was nevertheless required to prove that the complainant did not consent (assuming the jury accepted that the act of intercourse occurred). Further, consent remained an issue in respect of the aggravated sexual assault charge.
5. In these circumstances, given that the complainant was to give evidence that during the evening the appellant had indicated a desire to have sex with her, it was legitimate for the prosecution to suggest to the jury that the explanation for the complainant's willingness to get into bed with the appellant, notwithstanding that she did not wish to have sex with him, was her naïveté.
6. It should be noted that at no time did the prosecutor suggest directly or indirectly that the complainant was sexually naïve. In this context it should not be overlooked that at the outset of the prosecutor's opening, the jury was told that the complainant had been in a relationship with another woman. Early in the evidence of the complainant she was asked about that relationship and said that she and Ms A had been together for 3½ years.
7. In addition, the jury was told that the complainant was aged 19 at the time of the events in question and that during the relationship with Ms A they regularly socialised with the appellant by "hanging out" and smoking marijuana to the extent that they were unable to drive a motor vehicle.
8. In these circumstances, in my opinion the jury would not have been misled by the prosecutor's references to the complainant as "young and naïve". Nor would those references have aroused any particular emotions in the jury given what the jury knew of the complainant's background and behaviour.
9. Importantly, the jury would have understood that counsel for the prosecution was pushing a particular view that suited the prosecution case. At the outset of the trial the trial judge gave directions before the prosecutor opened. Her Honour told the jury that their decision had to be based on the evidence they heard in the court room and explained the role of the jury as follows:

"You take on a particular role from this point on in that you become what is called the judges of the facts, that is, it will be your role and yours alone to listen to the evidence that you hear or the facts that you're going to hear and to make a decision as to whether based on those facts and based on what of those facts you accept, the accused is guilty or not guilty of the two crimes that have been charged against him. "

1. Her Honour then introduced counsel and explained that the prosecutor was "counsel for or the lawyer for the Crown or the State" and that he would be "presenting the case against the accused". Her Honour then explained that defence counsel was "counsel for or the lawyer for the accused and she will deal with his case on this trial".
2. The trial judge advised the jury that the opening statement by the prosecutor would provide an outline of what the prosecutor anticipated the Crown case would be against the appellant. Her Honour explained that the prosecutor might make reference to both the facts that he anticipated the jury would hear and to the law.
3. After discussing the issue of an opening by defence counsel, the trial judge explained the process of the evidence and turned to the closing addresses:

"Once that discussion is completed you will then hear closing statements from both counsel.

Ms Baumeler is not restricted at that point in what she can tell you or say to you as counsel for the accused and it won't be rocket science if I tell you that Mr Shapiro will be urging you to find the accused guilty of both charges, Ms Baumeler will be doing the exact opposite."

1. Those directions were given shortly after 10am on 10 April 2017 and were followed by the prosecutor's opening. Evidence was called that day and on 11 April 2017. Both counsel addressed the jury on 11 April 2017 and the trial judge commenced her summing-up.
2. In the first part of her directions on 11 April 2017 given before the jury was sent away for the night, the trial judge gave the usual direction that it was a matter for the jury what evidence the jury accepted or rejected, and emphasised that the decision had to be based upon evidence actually heard in the courtroom. Her Honour also emphasised that the jury should not speculate and then gave directions concerning the addresses of counsel. These directions included reference to the statements by the prosecutor that the complainant was young and naïve:

"The other is that during the course of a criminal trial juries get a lot of information which is not evidence and you might think that that's a little odd but it's just the way trials are conducted. Now, the first thing you heard was Mr Shapiro's opening statement. Now, I'm not suggesting in any way, shape or form that he misled you but what he was doing for you then was outlining what he anticipated the evidence might be, and it does happen on a criminal trial that the evidence ultimately coming out of a witness's mouth doesn't quite measure up to what the Crown thought it was going to be.

Mr Shapiro made a number of statements about [the complainant] being young and naïve. Now, at the end of the day that's his view, that wasn't necessarily the evidence out of anybody's mouth. But you can infer that from your observations of her if you wish but what I'm pointing out to you is that what he said is not evidence, it's what you saw and heard during the course of the trial. You might agree with him at the end of the day, but that's a matter for you.

You will also at times have heard counsel putting comments, suggestions, propositions to witnesses and asking them to agree with it or to respond to it in some way, shape or form. Again, it's a purely - it's a very acceptable way of questioning a witness, there's nothing wrong with it, but what you need to remember is that it's not the comment, suggestion or proposition that's put to the witness which is the evidence. If the witness doesn't agree with it or doesn't respond positively if I can put it that way, the question, comment, proposition doesn't mean anything, and you cannot reason that, well, the lawyer wouldn't have asked that question or put that proposition if there was nothing in it. So you can't reason that. So it's what the witness says which is the evidence, not what counsel might have said to the witness.

The other aspect of the trial which is not evidence is counsels' closing addresses. Now, it's a matter for you what weight you give to each counsels' closing address, but they are not evidence, and what counsel might suggest to you is the conclusion you should draw from the evidence, even if it's suggested that's an inevitable conclusion, is only their suggestion and it's ultimately a matter for you and you alone what you draw from the evidence that you have heard.

Now, if I happen to express a view about any issue of fact you should ignore that. I can do it the same way counsel have been able to do it but you're the ones that have to make a decision about the facts, not me. If I say something you might very well agree with it but you don't have to. It's a matter for you. I'll tell you now, I will be suggesting things to you by way of the facts because indeed there are an awful lot of facts on this trial that aren't really in dispute."

1. For present purposes, the other relevant initial directions related to the need for the jury to act "quite impartially". Having given the direction that it was important for the jury to act impartially, her Honour said:

"Now, you may have heard evidence from and about the people involved in this trial, and you might not be particularly comfortable with any of it. You might think, well, that's not what I would do, it's not what I would want my children to do. But you need to put that to one side. Even though you bring your life experiences to your role as a juror you must put aside any prejudices you might have or sympathy you might have and just look at the facts and determine whether you can be satisfied beyond reasonable doubt as to the gilt of the accused in respect of the two crimes that are charged."

1. As to the issue of naivety, ultimately it was of marginal relevance. It was common ground that the complainant and the appellant lay in bed together fully clothed and the honesty of the complainant was not challenged by counsel for the appellant. In her closing address counsel said:

"Now, as Mr Shapiro said to you, it is not a question of the defence having to provide a motive for why someone would either lie or make it up, and in this instance I'm not even going to suggest to you that [the complainant] is lying to you in that she has come into this court and deliberately told you a mistruth. I will be suggesting to you that she is mistaken but I am totally convinced that she believes that what she told you is the truth. Your role is really to analyse whether you can accept whether that really is a credible truth and whether you can accept it, but I am certain that [the complainant] believes her account and believes what has been said."

1. Counsel for the appellant then referred to cannabis use on the night in question and whether, in view of the complainant's loss of weight, her consumption of cannabis affected her ability to recall the events.
2. Importantly, in the directions to which I have referred, the trial judge made it plain to the jury that the remarks of counsel were not evidence, but suggestions which they could accept or reject. Her Honour dealt specifically with the prosecutor's references to the complainant as young and naïve. In view of those directions, any potential unfairness in the prosecution addresses concerning naivety and other matters evaporates. My view in this regard is reinforced by the fact that counsel for the appellant did not request that the trial judge give a direction following the opening remarks and, at the conclusion of the closing address, did not complain about any aspect of the prosecutor's address or seek any further directions.
3. It is unnecessary to refer to each individual statement by the prosecutor to which counsel for the appellant referred. Many of the complaints are misconceived or of little significance. I will discuss only a few of those complaints.
4. The appellant submitted that the references to a "young and naïve girl" were designed to "conjure up" in the mind of the jury "the abuse of a child". In my view there is no possibility that the jury would have drawn such an inference, particularly bearing in mind that in the first two sentences of the prosecutor's opening the jury became aware that the complainant was 19 years of age at the time of the events and prior to the events had been in a relationship with another woman. Within the first few sentences the prosecutor had made it clear that while the complainant was in the relationship, she and Ms A attended at the home of the appellant to "hang out and listen to music and play computer games and smoke some cannabis and have some drinks".
5. In the same vein, counsel for the appellant contended that the effect of the prosecutor's addresses was to leave the jury with the impression that the appellant "lured" the complainant into the bed and misused his position of seniority because there was "imbalance of power". There is simply nothing in the remarks of the prosecutor that could possibly have led to such an inference. Further, there is not a hint in the evidence of any concepts of "luring" or "imbalance of power". Quite the contrary, the complainant made it clear in her evidence that the evening was simply a social occasion between friends. She knew, from the outset, that she was likely to stay overnight and was quite happy to share the bed with the appellant.
6. The appellant also contended that the addresses of the prosecutor reversed the onus of proof. I do not agree.
7. It is correct that the prosecutor did not preface his remarks with the specific observation that the burden rested upon the Crown to prove the case beyond reasonable doubt, but he spoke of the jury accepting the complainant's version and deciding whether they were satisfied beyond reasonable doubt of certain facts which, if the jury were so satisfied, would mean that they would be required to return a verdict of guilty.
8. In the opening, the particular passage about which counsel complained followed the prosecutor's explanation that "rape is sex without consent" and that consent meant "free agreement". In addition, the prosecutor informed the jury that a person does not freely consent if they are asleep. It was in this context that the prosecutor observed that with respect to the second charge of aggravated sexual assault, there was no mention of consent in the indictment "but consent is the defence to that case - to that charge I mean, and so the issue I suspect, so that will be something that will be relevant".
9. Counsel submitted that this statement "might have created a view that the defence in some way would have to do something to prove this defence". Given the context in which the prosecutor spoke of consent being a defence, there is no possibility that the jury could have been misled, particularly bearing in mind the subsequent clear and firm directions concerning the burden of proof. Plainly the jury was not misled as the appellant was found not guilty of aggravated sexual assault.
10. The appellant drew attention to a number of personal opinions expressed in the closing address. The following are a few examples:
    • "I'd say clearly attracted to her, he's just taken that opportunity and had sex with her. Unfortunately - I am sure he regrets it now but is that what happened."
    • "I mean, come on, she's everyone's type. You know, she's clearly an attractive woman."
    • "He did something - I am sure he regrets it but that doesn't mean he didn't do it."
    • "I mean, a very important part of being a jury, and I'm sure you understand this, is you have to be impartial but that's, you know, we say that in every trial but it's difficult in a case like this. I think it would be difficult. I think I would find it difficult because it's impossible not to think, you know, do I really want to find this young man guilty of rape."
    • "If you were to find him guilty, her Honour would have to take into account all of the circumstances of the offending, all of his circumstances and decide on an appropriate penalty. So it's not that it's not an important part of the process; it's just not part of your role."
    • "I mean similarly when [the complainant] gave her evidence it's impossible not to feel very sorry for her. It's impossible not to think, you know if he's found not guilty, she has just got to accept that and move on with her life. That's the consequences for her but again, that really has no role to play when it comes to you deciding on the evidence whether you're satisfied beyond a reasonable doubt that he's committed these crimes."
    • "I think a lot of people, when - I do it too, if someone says, you know, rape well you start thinking immediately of a woman being dragged kicking and screaming to some secluded place and violently raped."
11. These opinions should not have been expressed to the jury. In particular, it was utterly inappropriate for the prosecutor to speak of finding it difficult, personally, to return a verdict of guilty or, personally, impossible not to think of consequences to the complainant of a verdict of not guilty. It was similarly inappropriate for the prosecutor to speak of the consequences to the appellant of a guilty verdict.
12. Notwithstanding these errors by the prosecutor, I am satisfied that individually, and in their accumulation, these and other statements of opinions did not give rise to such unfairness as to cause a miscarriage of justice. In particular, I am satisfied that any potential unfairness was removed by the clear directions given by the trial judge. Further, the fact that the jury found the appellant not guilty of aggravated sexual assault demonstrates that the jury gave careful attention to the evidence and was not unfairly influenced against the appellant by the inappropriate remarks of the prosecutor.
13. The appellant submitted that the prosecutor inappropriately pressed for a conviction. Relying upon the decision of the New South Wales Court of Criminal Appeal in Wood v The Queen [2012] NSWCCA 21, 84 NSWLR 581, counsel submitted that in pressing for a conviction, the prosecutor overstepped the mark and created such unfairness as to result in a miscarriage of justice.
14. At the conclusion of his opening address, the prosecutor said:

"It's a matter of putting all of that evidence together and deciding are you satisfied beyond reasonable doubt that they did have sex in that bed in the middle of the night and that she didn't freely agree to that? Are you satisfied that the next morning he did penetrate her vagina with his fingers and she didn't consent to that, she didn't freely agree to that. If you're satisfied beyond reasonable doubt of those questions then you'll have to find him guilty no matter how hard that is."

1. At the conclusion of the opening address counsel for the appellant complained about the references to the complainant being young and naïve, but made no complaint about this particular part of the opening remarks. While the prosecutor should not have said "you'll have to find him guilty no matter how hard that is", because it is never appropriate for counsel to tell a jury that the jury must take a particular course or make a particular decision, in this passage the prosecutor did not inappropriately press for a conviction. The prosecutor conveyed the message, albeit with an inappropriate expression, that if the jury was satisfied beyond reasonable doubt of certain facts, the Crown would have proved its case and the appropriate verdict would be guilty.
2. As to the closing address, the concluding remarks were as follows:

"Of course he says to you, 'No, I wasn't attracted to her at all,' this young attractive woman, 'Not attracted to her at all, not his type,' but the next day he starts touching her straight away. So, I mean, you have to put all of the evidence together when you're considering your verdict and clearly, [the complainant], from our perspective, is the most important witness, she was utterly believable, she's behaved in a way that was completely consistent with this actually happening to her. She has - there's just no reason on the evidence to think that she's just dreamed this up or that she had deliberately lied about this. And, of course, then we have him spending a considerable period of time thinking about what he's going to say and coming in here and telling a version - and I'm sure he regrets what happened and, of course, he'd come in here and say 'oh no, I didn't - I didn't have sex with her' and of course, he has to say he touched her in some way, because there's these messages that's he had to think about, and when you put it all together you can and should be satisfied beyond reasonable doubt that he did have sex with her, there was no free agreement, he did put his fingers inside, that wasn't freely agreed to either, and you should find him guilty."

1. Again, there was no complaint about that passage by counsel for the appellant at any time after the conclusion of the prosecutor's closing address. The absence of such complaint is not surprising. Again, while the language chosen was not ideal, in substance the prosecutor urged the jury that the jury should make certain findings of fact with the consequence that the Crown would have proved its case and the appropriate verdict would be guilty. These submissions were far removed from the 50 questions posed by the prosecutor in Wood, and the submissions did not inappropriately press for a conviction.
2. In these circumstances it is unnecessary to discuss the many authorities which have canvassed the principles applicable to the conduct of prosecutors, including opening and closing addresses. A number of those authorities are discussed in R v Livermore [2006] NSWCCA 334, 67 NSWLR 659 and Causevic v The Queen [2008] NSWCCA 238, 190 A Crim R 416. As to the particular question of a prosecutor pressing for a conviction, while it is clear that a prosecutor should not inappropriately press for a conviction, I do not understand the principle to extend to banning a prosecutor from ever submitting that the evidence proves the case for the prosecution and that the appropriate verdict is one of guilty. In Tran v The Queen [2000] FCA 1888; (2000) 105 FCR 182 at 202 [129], the Full Court of the Federal Court made the following observation:

"In R v Banks [1916] 2 KB 621 at 623 Avory J observed that counsel 'ought not to press for a conviction'. That may overstate the principle but the policy which underlines that statement is unexceptionable."

1. Whatever constraints are placed upon prosecutors with respect to urging a jury to convict, the addresses in question did not breach those constraints. More particularly, no unfairness was caused and neither individually, nor considered cumulatively and in conjunction with the remainder of the addresses, did these remarks cause a miscarriage of justice.
2. Another aspect of the closing address about which the appellant complained relates to the prosecutor's remarks concerning the effects of cannabis. The appellant contended that these remarks amounted to the expression of personal opinions without any evidentiary basis.
3. The context in which the prosecutor's remarks must be considered includes the cross-examination of the complainant about the use of cannabis and its effects. Under cross-examination the complainant was asked about the effects and she described feeling "really like chilled and light" and "I just felt a little bit stoned". Counsel for the appellant then questioned the complainant about her loss of weight and elicited that on the night in question she had smoked more cannabis than she had used in the previous few months. Later in the cross-examination counsel sought, by implication, to link the effects of cannabis to the possibility that the complainant dreamt or imagined the act of intercourse which was the subject of the charge of rape:

"Okay. And certainly from your perspective you fall to sleep almost immediately?......Yes.

Okay. And at that time the - you would have been well and truly under the effect of the cannabis that you've consumed?......Yes.

Okay. Now, you don't report any incident to the police until about 18 months after what you were saying occurred?......Correct, yes.

Okay. And when you do speak to the police, in terms of the first incident where you say intercourse actually took place, can you recall indicating to the police, 'I was wondering if it did actually happen or was it a dream' ?......When I said that statement I didn't actually mean I didn't think that it happened, that it could have actually been a dream. That's how it felt. It felt really surreal for me and it just - I couldn't process it. I couldn't believe that it actually happened. That it's something that was like, 'Did that actually happen,' because that's just so surreal but it definitely did happen. It wasn't a comment that I was questioning if it happened or not. I was just - I can't believe it happened so I might have maybe worded that a bit wrong but I didn't mean I'm questioning whether it was a dream or not. It just - I just couldn't believe it.

Well, I want to suggest to you that it is something that didn't happen and that it is something that you have either dreamt or imagined or - but not something that actually happened?......I 100 per cent disagree."

1. It was against this background that the prosecutor addressed the question of the possibility that the complainant had dreamt up the act of intercourse by reason of the consumption of cannabis:

"Now it was suggested to her that she has dreamed it up, well, she said to you that she's never had some vivid dream that she then felt was reality, there's just no evidence that she - that she has, she said she hasn't. It's just a completely unbelievable scenario that this has all just been some fantasy dream that she's had that she's convinced herself is reality - she's not a crazy person, you know she's not hallucinating in something. She's come along, explained to you what happened, she explained to [Ms A] - yet, remember this morning the doctor's evidence, the picture that doctor painted of this woman in her consulting room, explaining what had happened to her in such a - in a such a convincing way. You know, there's absolutely no evidence that the cannabis that she smoked somehow made her hallucinate or made the dream seem like reality or something like that. I mean her words - well show she described the effect of the cannabis she said it made her feel chilled and light and it made her feel stoned, and she was completely honest with you about the amount of cannabis she'd smoked, that she was smoking cannabis.

You know this - and there's just no evidence that it would make her dream up something that didn't happen. I mean it's easy for me to talk to you about alcohol because you know, we've all had experience with alcohol, I could say to you, well alcohol makes you maybe forget some things it doesn't make you make things up about what happened the night before, you might have patchy bits, and similarly, here, there's just no evidence that the effect of this cannabis would be oh she's going to suddenly think that something that wasn't real was real. You know, and then she tells - cements it in her brain as if it's real, tells her friend, tells her parents and tells the doctor and tells the counsellor and eighteen months later after thinking about it so long tells the police and then comes along here three years later and tells you because it's all a dream - I mean, if it was a dream that would have been so much easier for her. She wouldn't have had to do all that. I'm sure she wanted it to be a dream, but it wasn't, and when you - you remember my learned friend said to her, do you remember this, she said to her:

And when you do speak to the police, in terms of the first incident, where you say intercourse actually took place, can you recall indicating to the police, 'I was wondering if it did actually happen or was it a dream' -

Now that's not all she said, we get to - we get the truth of everything that she said in a minute, but her response to that was:

When I said that statement I didn't actually mean, I didn't think it - that it happened that it could have actually been a dream, that's how it felt, it felt really surreal for me and it just - couldn't process it, I couldn't believe that it actually happened, that some - that it was something that was like, did that actually happen because that's just so surreal, but it definitely did happen, it wasn't a comment that I questioning if it happened or not, I was just - I can't believe it happened, so I might have maybe worded that a bit wrong, but I didn't mean I'm questioning whether it was a dream or not, it just - I just couldn't believe it.

And, of course, then we heard that the - full passage of what she said to the police was, 'For a second there I was wondering if it did actually happen or was it a dream, but I know it did.' She's always known it happened. She never thought it was a dream but she did think it was surreal. She did think it was completely unexpected for her to have this friend breach her trust in that way. You remember she said this about the delay:

For a long time I was really quite confused about how I felt about the whole situation. I blamed myself for a little while and then I went away to Bali in 2015 with two of my friends and it was a big eye-opened. I realised that what happened that night isn't okay and I'd been brought up to know that and to respect myself and I just didn't want to go the rest of my life with something like this hanging over me. I wanted to know that I did everything I could to put peace with myself about it. I didn't want to go my whole life thinking like I'd been raped. Do you know what I mean?"

1. Albeit with unnecessary rhetoric, the prosecutor made the point that there was no evidence that the effect of the cannabis might lead the complainant to dream up an event that did not occur. He did not seek to express a personal opinion about the effects of cannabis. Rather, he said there was no evidence that the cannabis might somehow cause the complainant to hallucinate or experience a dream which seemed real.
2. Given the cross-examination of the complainant, it was not unreasonable for the prosecutor to anticipate that defence counsel would suggest that the complainant was mistaken by reason of her consumption of cannabis and such anticipation was well-justified. In the course of her address, counsel for the appellant made it plain to the jury that she was not suggesting that the complainant had deliberately lied. In a passage which includes stronger expressions of personal opinions than most of the opinions expressed by the prosecutor, counsel for the appellant said:

"I will be suggesting to you that she is mistaken but I am totally convinced that she believes that what she told you is the truth. Your role is really to analyse whether you can accept whether that really is a credible truth and whether you can accept it, but I am certain that [the complainant] believes her account and believes what has been said."

1. Counsel for the appellant then addressed the jury about the amount of cannabis used by the complainant in the context of her loss of weight and lack of use of cannabis in recent times. She continued:

"How much did the cannabis, on someone who's 20 kilos less, affect her ability to recall, her ability to know what was happening to her that night? What effect did it have on her, and is that something that you can use or that you certainly need to as far as my address to you is, consider in terms of whether you can believe the account that she gave."

1. There is no substance in this complaint about the prosecutor's reference to cannabis.
2. The last particular complaint to which it is appropriate to refer concerns a proposition first advanced on the hearing of the appeal that in the course of the prosecutor's closing address, the prosecutor asserted that the appellant had colluded with his lawyer to construct a version in respect of the clothing worn by the complainant. The particular passage was as follows:

"And a small point that is about, you know, whether she was wearing jeans or leggings. She says to you, quite honestly, 'look, I think I was wearing leggings but I can't a 100 per cent remember'. You know, of course [the appellant] comes along and says, 'Oh, I can remember three years ago she was definitely wearing jeans', and I suspect that's because then we'll hear from his lawyer in a second, 'Oh well, if it's jeans there's no way you could have got it down and have sex with her'."

1. Again, the submission is misconceived. Plainly the prosecutor moved from one thought process to another which is difficult to convey in the transcript. It could be appropriately conveyed in the transcript if a dash was placed between the words "because" and "then". Listening to the recording of the address confirmed this view.
2. In addition, if that particular passage of the prosecutor's address had conveyed the impression that he was alleging collusion between the appellant and his legal advisor, there can be no doubt that both counsel for the appellant and the judge would have had plenty to say, either by interrupting the address or at the conclusion of it. When confronted with that suggestion, counsel for the appellant was unable to articulate any reason why neither she nor the judge mentioned that the prosecutor had raised a suggestion of collusion.
3. Although not the subject of complaint, it is necessary to refer to a passage of cross-examination which occurred in the context of the prosecution's suggestion that the appellant was made aware of the prosecution evidence and carefully constructed a version to meet the prosecution case. The relevant passage of evidence was as follows:

"Now, you were charged with these crimes in February of last year?......Yes.

And you would've received a copy of the statements and the text messages, etcetera, in relation to this matter?......Correct, yes.

Yes. And, you know, you would've been asked by your lawyer to go away and write down your version of what happened?......I actually didn't have - I had two contact sessions in the period of close to a - over a year with my present lawyer that I had before Ms Baumeler. So -

Yes. How about Rochelle Mainwaring, she would've told - ?......Yes, yes, that's correct.

Yes. She was your previous lawyer, correct?......Yes.

And she would've said to you, 'Go away and write down what you say happened'?........No.

She didn't say that to you?......No. I had about a week and a half to try and prepare my statement.

Right. So you only had - so she did ask you to prepare a statement, did she?......Yes, in about a week to the trial.

Yes, okay. But that was - that's not - that wasn't a week till today, was it? It was a week till last week ago or something because the trial was meant to happen a bit earlier?......Yes, yes.

And you had statements and text messages with - you know, so you could - you knew what the evidence of the case was going to be?......Yes.

Yes, and so you've sat down and carefully constructed a version to try and get yourself off these charges?......No, no, I haven't."

1. Although the prosecutor was entitled to question the appellant as to his knowledge of statements and other evidence relied upon by the prosecution, he was not entitled to question the appellant about his communications with his legal advisor or counsel. Those questions should not have been allowed. Fortunately, the prosecutor did not refer to that evidence in his closing address to the jury, and the issue of such communications was of no significance.
2. A critical question is whether the addresses of the prosecutor caused relevant unfairness and, if so, whether a miscarriage of justice resulted. As I have said, while there were minor errors and inappropriate expressions of opinion throughout the prosecutor's addresses, neither individually nor in their cumulative effect did they result in significant unfairness. From the outset the jury understood the role of counsel. The directions specifically pointed out that the prosecutor would be urging the jury to return a verdict of guilty on both charges and that counsel for the appellant, in the words of the trial judge, "will be doing the exact opposite".
3. Further, the directions given by the trial judge at the conclusion of the addresses were emphatic and unambiguous as to the statements of counsel not amounting to evidence. In addition her Honour gave clear directions concerning the need for the jury to act impartially and put aside any prejudices or sympathy in considering the facts and determining whether they were satisfied beyond reasonable doubt of guilt. Similarly, the jury could not have been left under any misapprehension as to the burden of proof resting upon the Crown and the requirement that the Crown prove guilt beyond reasonable doubt.
4. As I have said, many of the complaints concerning the wording of the prosecutor's addresses were so minor that they did not warrant mention. Having regard to the addresses in their entirety, and to each particular complaint, I am satisfied that the addresses of the prosecutor did not give rise to a risk that a miscarriage of justice occurred.

1. Ground 6 is a complaint that the verdict of the jury is "unsafe and unsatisfactory in all of the circumstances, especially in light of the jury's verdict of not guilty on count 2".
2. The role of an appellate court when dealing with a ground of appeal that a verdict of a jury is unsafe and unsatisfactory was explained in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 494-495:

"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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the 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. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above." [Footnotes omitted.]

1. To the guidance provided by the majority judgment in M should be added the following observations of the High Court in R v Baden-Clay [2016] HCA 35, 258 CLR 308 at 329-330 [65]- [66]:

"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.

1. 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.]
2. Leaving aside the question of inconsistent verdicts, in my opinion this ground of appeal would not be made out. There is nothing in the evidence of the complainant that gives rise to a doubt or a conclusion that there is a significant possibility that the appellant was wrongly convicted. This is a classic example of a case in which the advantage of the jury in seeing and hearing the witnesses, particularly the complainant and the appellant, is unchallenged by any aspect of the trial evidence. Plainly, having regard to the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of rape.
3. Turning to the issue of inconsistent verdicts, does the acquittal of aggravated sexual assault give rise to a doubt or lead to a conclusion that, "even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted ..."? M v The Queen (above).
4. The principles to be applied in the circumstances under consideration were explained in the joint judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348. Having identified that the appellate court "must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory" (365), the joint judgment identified the relevant principles in the following passage (366-368):

"3 Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:

'He 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.'

4 Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense . Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt . Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:

'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'

We agree with these practical and sensible remarks.

5 Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.'

6 The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders." [Footnotes omitted.]

1. In my opinion the verdicts are not "inconsistent" in the relevant sense.
2. First, the events that gave rise to each of the charges were disparate in time. This is not a case in which the events were linked closely in time and circumstances and a doubt about one event necessarily causes a doubt about the reliability of evidence concerning the other event.
3. Secondly, the appellant denied that any act of intercourse occurred during the night. This resulted in a straightforward contest between the complainant and the appellant. Such a contest is to be contrasted with the differing versions concerning the appellant touching the complainant upon waking the next morning which involved a dispute as to the area of touching.
4. Thirdly, as counsel for the respondent pointed out in submissions, the complainant's evidence concerning the act of intercourse that was the subject of the charge of rape was supported, to some degree, by evidence of her complaints to Ms A, her parents and the medical practitioner. In speaking with her parents and the medical practitioner the complainant did not mention the facts that were the basis of the charge of aggravated sexual assault.
5. In addition, in the "complaint" to Ms A, while the complainant spoke of the events the following morning, she did not mention digital penetration of her vagina. Ms A gave the following evidence:

"Q: Did she tell you anything about what happened the next morning?

A: She said in the morning he tried again, and she did touch his penis.

A: Thinking it would make things better, and then quickly stopped and left.

Q: Now, in terms of the next act that she complains of, so the one that she says occurs in the morning, in relation to how that act commences, what can you recall her telling you about that?

A: Oh well when they were awake, all I recall is that she said he was - started to touch her again - ...

A: ... for - to make - to feel like - to make things better - ...

A: ... and then she quickly stopped and then that was it and she told me she left."

1. Significantly, the complaint to Ms A did not allege that the appellant had digitally penetrated the complainant. Further, according to Ms A, the complainant said that the appellant started to touch her again "when they were awake".
2. In these circumstances, given the facts of the events in the morning to which I have referred, the absence of a complaint provided a basis for the jury to entertain a doubt about aspects of the morning events.
3. Fourthly, although the aggravated sexual assault was based on digital penetration of the vagina while the complainant was asleep, the jury might have been concerned about the issue of consent. It was common ground that when the appellant touched the complainant the next morning, initially she reacted by taking hold of his penis. While the complainant could not, in law, be consenting when she was asleep, plainly the act of taking hold of the appellant's penis strongly signalled to the appellant that the complainant was consenting at that moment. When the complainant removed her hand from the penis and indicated that she could not continue, the appellant immediately ceased touching her.
4. In these circumstances, the jury may have had a doubt about the issue of consent. Alternatively, in view of the guilty verdict upon the charge of rape, it would not be surprising if the jury took a "merciful" view applying, as King CJ described in Kirkman (1987) 44 SASR 591 at 593, "their innate sense of fairness and justice in place of the strict principles of law".
5. Finally, it should not be overlooked that the trial judge directed the jury to consider each of the counts on the indictment separately. In particular, her Honour directed that the verdict "in relation to each does not need to be the same and may not necessarily be the same; that's ultimately a matter for you".
6. Given the differences to which I have referred, the different verdicts are not "an affront to logic and common sense which is unacceptable" and do not "strongly suggest a compromise of the performance of the jury's duty" (MacKenzie at 368). For these reasons, in my view the verdict of the jury is not unsafe and unsatisfactory and ground 6 fails.

"There is fresh and compelling evidence available, in the form of a witness who was present in the house during the night, who only when reading material published in The Mercury during the trial became aware they had been present, and only made her disclosure after the trial."

1. On 18 May 2017 the Chief Justice ordered that the appellant file and serve all evidence upon which the appellant intended to rely in relation to ground 7 in the form of affidavits to be filed and served within 42 days. The only material filed is an affidavit of a person I will identify as Ms B. There is no affidavit from the appellant or his legal representatives.
2. Although ground 7 is based upon evidence which the appellant has described as "fresh and compelling", the critical question is whether, in view of that evidence, the appellant is able to establish that there has been a "miscarriage of justice" (Criminal Code, s 402(1)).
3. The affidavit of Ms B upon which the appellant seeks to rely is dated 29 June 2017 and is as follows:

"I, [Ms B], of ..., make oath and say as follows.

I first met [the appellant] in July 2013 at Flamingos nightclub. The night I met him, we went back to his house in ..., and had a one night stand. I contacted him a few weeks later to inform him that I was pregnant. After I convinced him that I was emotionally incapable of having an abortion, we decided it would be best for us to spend some time together, and get to know each other better, given that we were going to be having a child. I went around to his house several times in the following weeks, and his friends, [Ms A] and [the complainant], were there on a few of those occasions.

When his father passed away in early December of that year, he told me he needed me by his side for support, and introduced me to his family as his girlfriend. Looking back, I now understand this was inappropriate, as he was grieving, and merely wanted someone to be there for him. However, it seemed to make him feel better for his family to see that he was going to be present in his child's life, particularly given the circumstances around the conception.

I spent a lot of time with [the appellant] in the following weeks, and I moved into his house with him the week following Christmas. We decided not long after I moved in that a relationship between us was not going to work, but he still wanted us to live together, so that when our son arrived, he would be able to see him as much as he wanted.

Our unique situation was difficult for me. We were living together, and about to have a child together, but we were not in a relationship, and slept in different rooms. It was also particularly difficult for me when he would have female friends over to stay the night. There was one female friend in particular, [Ms C], who stayed about once a fortnight on average. [The appellant] assured me they were just friends, and she had a boyfriend, but there were a few times when they shared [the appellant's] bed, as his bed was more comfortable than the couch.

I had a discussion with [the appellant] about this situation, as it upset me whenever this woman would stay the night. I was fairly certain it was a platonic relationship, but I was pregnant and emotional in those days, and I told him that I did not want to have to listen to him having sex with anyone, while I was living in the house and carrying his child. It was after this discussion we made a verbal agreement that he could have his female friends over to stay, but that he would not have sex with them in the house, where I would be able to hear. If he wanted to have sex with anyone, he could, just not in our house. He understood that if he were to break this agreement, I would have no choice but to move out, and he would not have as much access to his child. [The appellant] was very depressed at this time, and still grieving the loss of his father, and the fact that his son was about to arrive was the only good thing in his life. While I did not fully trust him, I did trust that he would not do anything to jeopardise a future relationship with his child.

On the night in question, [the complainant] came into the house, we exchanged pleasantries, and she and [the appellant] went out the back to the shed, which he had set up as his 'man cave'. I was past my due date at this time, and had great difficulty sleeping, but I managed to get a few hours' sleep while they were out in the shed, though it was very light and restless. I immediately awoke when they came back into the house, went into his bedroom, and shut the door. I was extremely upset about this, as I had not been aware she would be spending the night, and unlike with [Ms C], I was not sure what the nature of their relationship was.

After they first went into the bedroom I could hear them talking in very low voices. I remember holding my breath and staying perfectly still to try and make out what they were saying, but I could not hear their words clearly. I stayed like this until it was quiet, and I suspected they had gone to sleep. By this time I was extremely anxious and emotional, and realised I had no chance of being able to go back to sleep. The next few hours I spent alternating getting in and out of bed. I had a couple of cups of tea to try and calm myself. I had a couple of cigarettes (which I was particularly annoyed about as I had cut down significantly since I fell pregnant). I remember sitting on the couch for about half an hour, bawling my eyes out, wondering how I had gotten myself into this situation.

I did not sleep at all from the moment they went into that bedroom, until after [the complainant] had left later that morning. I listened for 'sex sounds'. I was terrified he would break our agreement and I would have to listen to him having sex with another woman, when I was about to give birth to his child. I heard every sound that came from that room. Sound travelled easily, especially in the early hours of the morning, when there was little to no traffic outside. Also, his bed only just fit into the room (which was a sunroom). Three sides of the bed were flush up against the wall. The large windows in the room had those old-fashioned plastic blinds, and these blinds hung over the foot of the bed, and on one side. Any time either of them moved their feet, or rolled over in bed, the blinds would move, and make a noise. Whenever I heard that noise I would strain to hear more. I heard no noises that made me think they had sex that night. I heard only momentary and sporadic movement of the blinds.

I did not hear anything to give me cause for concern until not long before they got up, when I heard kissing sounds. It was a bit harder to hear by this time as the ... traffic had picked up outside, but I heard them kissing. After [the complainant] had left, I asked [the appellant] what was going on between him and [the complainant], and if anything had happened the previous night. He confirmed that they had kissed, but that nothing else had happened.

I did not find out about the charges against [the appellant] until he informed me the day before the trial started, and he told me he had been accused of rape. I understand why he would not have wanted me to know about the charges, as our friendship has seen a great deal of friction, and only exists for the wellbeing of our son. Until after [the appellant] was ultimately convicted, I had never told him (or anyone) about how I used to eavesdrop when he had girls stay the night, as it was too embarrassing to admit. So while he knew I was in the house, he would have thought I was sleeping.

I was very surprised at the charges, as I did not - and do not - believe [the appellant] to be capable of rape. I asked him who had accused him, and was even more surprised when I found out it was [the complainant]. I asked him 'Did you even ever had sex with [the complainant]?', and he replied 'Not by herself, no'. It was then I was informed that he had had a sexual relationship first with [Ms A], and then [the complainant] and [Ms A], around the time I was pregnant and he and I were 'getting to know each other better'. I felt very upset about this, and also very naïve and stupid for not realising this before. As a result of these emotions, I discouraged him from going into specific details about his case. We only had a general discussion about it, and I assured [the appellant's] girlfriend and her father, who were also present, that if the worst happened, and he was put in jail, that they would still have as much access to our son, ..., as they wanted. At no point did anyone tell me when it was meant to have happened, and I assumed it was late the year before, as at the time I did not remember [the complainant] coming over at all after I had moved in.

It was not until Easter Sunday, at a family gathering, that I was shown a newspaper article from the Mercury that detailed [the appellant's] conviction. When I realised it was all supposed to have happened on April 13th, 2014, I thought it was very strange. I was living there at that time and about to give birth to our son. Being past my due date, and extremely uncomfortable, I knew I would have been in the house, as I did not really go anywhere in those days. While I did not initially remember [the complainant] ever visiting after I had moved in, I also knew that whenever he would have a female friend over to stay the night that I was usually awake, and eavesdropping to make sure he didn't have sex in the house, and break our agreement.

It wasn't until the Tuesday night as I was trying to go to sleep, that I remembered [the complainant] coming over and staying that night. I usually try not to think about that time in my life with any specificity, as it was a very difficult and emotional time for me. The memories came flooding back and hit me like a tonne of bricks. I was extremely upset, and everything I had been feeling that night came back to me. I was still so upset the next morning that I made an urgent appointment to see my psychologist. I went through everything in my head, and I knew without any doubt, that he had not had sex with [the complainant] that night. I would have heard. I was actively listening for those kinds of sounds, and I heard nothing to give me any reason to believe he had broken our agreement. I was, and am, completely convinced of [the appellant's] innocence."

1. The following matters are immediately obvious:
   • The complainant's statutory declaration of 18 August 2015 was provided to the appellant. In that statutory declaration the complainant referred to a girl who was pregnant to the appellant and living at his home. Referring to the evening in question, the statutory declaration stated:

"The girl's car was there and I believe she came out and said hello. Regardless I do believe she was there."

• The affidavit of Ms B states that on the night in question when the complainant entered the house, they exchanged pleasantries before the complainant and the appellant went to the shed.
• The affidavit of Ms B states that after the complainant left the house the following morning, she asked the appellant what had occurred between them, and if anything had happened the previous night, to which the appellant replied that they had kissed but nothing else had happened.
• According to Ms B, she did not know about the charges against the appellant until he informed her the day before the trial started that he had been accused of rape. If that evidence is accepted, neither the appellant nor his legal advisors had contacted Ms B or spoken to her about the charges until the day before the trial started.
• Ms B says that at the time she spoke with the appellant, being the day before the trial, she did not remember being at the house when the complainant visited. However at the time of the conversation the appellant must have been aware that Ms B was present in the house at the time he and the complainant went to bed and when they woke up in the morning.

1. The relevant principles to be applied by the appellate court in these circumstances have been expressed in different ways across many authorities. A helpful summary was provided by Kirby J in R v Abou-Chabake [2004] NSWCCA 356, 149 A Crim R 417 at 427-428, [63]- [64]:

"The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at [61]- [64]; see also R v Sleiman [2003] NSWCCA 231 at [101]- [105]. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 674-675 by Mason J (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows:

• First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.
• Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (at 512) per Barwick CJ).
• Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 301; [1989] HCA 35; 43 A Crim R 182 at 210 per Toohey and Gaudron JJ).
• Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.
• Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (at 518-519) per Barwick CJ; cf Gibbs CJ in Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 398-399; [1986] HCA 26; 20 A Crim R 244 at 248-249).
• Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:
  • Is the evidence fresh?
  • If it is, is it 'credible' or at least capable of belief (Gallagher v The Queen (at 395; 246) per Gibbs CJ), or 'plausible' (Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 301; [1989] HCA 35; 43 A Crim R 182 at 210 per Toohey and Gaudron JJ)?
  • If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (at 410; 257) per Brennan J) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (at 402; 251) per Mason and Deane JJ)? See Mickelberg v The Queen (at 301-302; 210-211) per Toohey and Gaudron JJ.
• Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s 474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (at 517)).

1. Here, a new trial is sought. It was not suggested that the evidence put forward as "fresh evidence" demonstrated innocence or was of such cogency that, without more, it gave rise to a reasonable doubt. It was evidence to be weighed with other evidence called at the trial. According to the appellant, had it been before the jury, it is likely that he would have been acquitted. The appellant must therefore demonstrate that the evidence is both "fresh" and "credible."
2. The distinction between "fresh evidence" and "new evidence" that is not "fresh" was summarised by Crawford J (as he then was) in Saunders v The Queen [2004] TASSC 95, 149 A Crim R 174 at 179 [13] and [14]:

"The basis upon which fresh evidence may ground a successful appeal has been stated many times. If it is credible, or at least capable of belief, and if it raises a significant possibility that the jury, acting reasonably, would have acquitted if the fresh evidence had been before it at the trial, then a miscarriage of justice has occurred and the conviction should be set aside.

Where, as in this case, the evidence upon which reliance is based is not fresh evidence in the sense I have explained, but is merely new evidence because it was available to the appellant at the trial if he had exercised reasonable diligence, far more stringent rules apply. The effect of the new evidence must be to convince the Court that there has been a miscarriage of justice in the sense that the Court is satisfied that the innocence of the appellant has been established or that the new material raises such a doubt about guilt in the mind of the Court that the verdict should not be allowed to stand. In that case, the verdict will normally be quashed without more and a new trial will not be ordered." [Citations omitted.]

1. As to whether the evidence of Ms B is "fresh", the written submissions of the appellant assert that the evidence was "unavailable" at trial and that it was "unable to be found even with diligence". Further, the assertion is made that the evidence "only became available after the trial, due to [Ms B] coming forward".
2. On the face of the material to which I have referred, the evidence of Ms B is not "fresh". The presence of another person in the house was apparent from the sworn statement of the complainant provided to the appellant and his legal advisors prior to the trial. The appellant well knew that Ms B was in the house that night and that she was sleeping in his room. On this material, due diligence required that Ms B be interviewed to ascertain whether she had any relevant evidence to give. There were obvious questions to be asked of Ms B.
3. Faced with these difficulties during the hearing of the appeal, counsel for the appellant sought to call the appellant to give evidence. In addition she sought an adjournment to obtain evidence from the appellant's first counsel. Although she did not mention it, counsel on the appeal would probably have had to file an affidavit because she was counsel at the trial.
4. After hearing submissions with respect to ground 7, the Court was unanimously of the view that even if the evidence was "fresh", ground 7 could not succeed. In other words, assuming the best position for the appellant that the evidence of Ms B is "fresh", the Court was satisfied that no miscarriage of justice had occurred. In these circumstances the applications were refused and I now give my reasons for reaching the view that, assuming the evidence of Ms B is "fresh", nevertheless no miscarriage of justice has occurred.
5. The evidence of Ms B being "fresh", the next question to be addressed is whether the evidence is credible or at least capable of belief and the weight that the evidence might have carried if given it at trial. This requires consideration of the fresh evidence in the context of the other evidence led at trial.
6. Ms B was presented for cross-examination. She said that she had lived in the appellant's home from just after Christmas 2013 until July 2014. Her child was born in April 2014, shortly after the events in question. Ms B moved out in July 2014 and, for the first couple of months, she saw the appellant once or twice a week. Contact then increased to three or four times a week involving the drop-off and pick-up of their child. That arrangement continued until the commencement of the trial.
7. As to the conversation with the appellant during the day before the trial started, this was the first occasion on which Ms B became aware that the appellant had been charged with a criminal offence. She described the conversation in the following terms:

"He came to tell me personally. He - because I wasn't sure - he'd said that he had a meeting with his lawyer or something and then he came over to tell me, he said that he had been accused of rape, and I'm like 'who'? and he said '[the complainant]' and I - I was a bit surprised because I didn't realise he'd even ever had sex with [the complainant]. I asked him 'Did you even have sex with [the complainant]' and he said 'Not by herself, no'."

1. In addition, later in re-examination Ms B was asked what details had been given to her in this conversation and she gave the following evidence:

"... what details were you told? ... He told me that he'd been accused of rape, I asked him who, he said [the complainant], and that's when I asked him if he'd ever had sex with [the complainant]. He said, 'Not by herself, no'. I think he did try and tell me that I was in the house but I shrugged him off, I didn't want to talk about it anymore because it was a shock."

1. Ms B went on to say that the appellant's girlfriend and girlfriend's father were present and they talked generally about why someone would lie about something so serious. Nothing was said about the timeframe in which the events occurred.
2. Subsequently Ms B was asked again about the appellant trying to tell her that she was in the house and she said:

"A: Yeah, he - he said - yeah, he said that I was - I think that you were in the other room then, and I think that's what he said, I can't remember, because I cut him off halfway through and I thought that that was what he was going to say, but I cut him off halfway through because I wasn't - I mean he'd just told me he he'd been accused of rape, I was a bit shocked.

Q: Didn't start you thinking about whether you'd been there on the night?

Q: The first time that you had to think back about that specific distressing occasion was effectively three years after that occasion, wasn't it?

1. Ms B said that when the appellant spoke to her, she did not think about the occasion and did not "specifically remember her coming over". Similarly, when she saw the article in the newspaper on Easter Sunday the memory of that particular occasion did not return. It was the following Tuesday night at about 10.30 when she was trying to sleep that she remembered the occasion and maintained that she could remember it "very clearly".
2. As to why she did not initially recall the occasion, Ms B said that when the appellant spoke to her she assumed the occasion was back in 2013 when the complainant was a regular visitor to the home of the appellant. In addition, she said that basically the whole time she was living with the appellant was a very emotional period of her life and she tried not to think about that period in specific terms because, if she thought about it too much, it was distressing for her. She thought she blocked out the particular night because it was so upsetting for her as she did not know the nature of the relationship and she was terrified she would have to listen to the appellant and the complainant having sex.
3. Ms B described the premises as a one bedroom unit with a sunroom. She occupied the bedroom and the appellant had moved his bed into the sunroom. There was a small lounge room plus a kitchen and a bathroom. During the evening she alternated between lying down and doing other things. She was nine months pregnant and, although she did not have a specific memory of going to the toilet, she assumed that she did on more than one occasion. She smoked a couple of cigarettes outside the backdoor and made coffee or tea.
4. Ms B maintained that even when smoking a cigarette or going to the toilet, she would have heard any sexual activity occurring in the sunroom. There were occasions when she sat on the couch in the lounge room, but Ms B would not concede the possibility that an act of sex had occurred without her hearing it.
5. At about the time of the events, there was another woman who visited the appellant possibly once or twice a fortnight and stayed overnight. Ms B said she would lay awake listening until they fell asleep or until it was all quiet. She agreed that on some occasions she did not succeed in staying awake after it was quiet. Notwithstanding that there were occasions when she dozed off while the other woman was in the premises, Ms B was adamant that she did not doze off on the night in question. Bearing in mind that the first time she had to think back about this specific distressing occasion was effectively three years later, Ms B was asked whether there was any possibility that her memory might have played tricks on her in any way with respect to the details of the night. She gave the following evidence:

"Q: Do you think there's any possibility that when it comes to some of the details that your memory might have played tricks on you in any way, that you might be mistaken about some of those details?

A: No. I'm very clear, I never dozed off. I lay down in bed, I was mostly trying to hear sounds but I didn't actually spend a lot of time in my bedroom, I was more on the couch. I would sit in my room, there was a couch in my room, I made myself a couple of cups of tea, or coffee, I can't remember specifically, but no, I'm absolutely sure I didn't doze off."

1. Under further questioning Ms B said she spent most of the time on the couch in the lounge room, but also some time on the couch in the bedroom.
2. In written submissions, the respondent advanced the following propositions:

"192 This is not a case where the new evidence is 'of such cogency that innocence is shown' (Abou-Chabake ibid at [63] point 4). Taking the evidence at its highest it suggests that;

1. The appellant would have been less likely to have sex with the complainant in the house when he had entered into an agreement with [Ms B] not to.
2. The fact that [Ms B] did not hear anything suggests that nothing happened.

1. There are obvious and compelling arguments contrary to the above interpretation of the fresh evidence. These include:

1. As was suggested by the Crown in cross-examination of the appellant (T140 & 143) and in closing (155), the appellant took advantage of the opportunity which presented itself, namely finding himself in bed in a spooning position with the complainant while she was asleep and affected by cannabis. In those circumstances and having consuming [sic] alcohol himself he may not have given the agreement with [Ms B] much thought. Further there is no evidence to suggest that he realised that [Ms B] was awake or that she could hear every 'sex sound' in the middle of the night. 2. [Ms B] may be mistaken as to what she would have been able to hear. Similarly, [Ms B] may be mistaken as to whether she was fully awake for the entire night. Perhaps she dozed for some period of time without realising. There was also a period of half an hour when she was on the couch. Given that she was past her due date she would have also been to the bathroom during the night.

1. The evidence was that after the complainant woke the sex continued for approximately one minute (T63 L22 ; T78 L41). There was no resistance from the complainant, so no force or violence was required, although the complainant did describe the appellant as 'moving quite fast' (T62 L41-42). Given the Crown case was that the appellant started having sex with the complainant while she was asleep, and presumably thinking that [Ms B] was also asleep in the next room, logically he would have been careful not to make noise.
2. As can be seen [Ms B's] evidence did not significantly weaken the Crown case. The new evidence is neither '... of such cogency that innocence is shown ...' nor does it raise such a doubt that the conviction should be quashed (Abou-Chabake ibid at [63] point 5). In the context of the evidence at trial the absence of [Ms B's] evidence has not caused a miscarriage of justice.

1. If the evidence is fresh and capable of belief the question becomes whether the evidence would 'have been likely to have caused the jury to have entertained a reasonable doubt ... or ... is there a significant possibility that the jury, acting reasonably, would have acquitted the accused.' (Abou-Chabake ibid at [63] point six ; see also Mann ibid at [4] per Evans J)
2. Here, with the new evidence, it is a possibility that the jury may have entertained a reasonable doubt, just as they may have entertained a reasonable doubt without that evidence. The new evidence does not make it 'likely' that the jury would have acquitted, for the reasons explained above. When the new evidence is 'examined in the context of the evidence given at the trial' (Abou-Chabake ibid at [63] point 4 ; Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259 at 301) it is clear that while it makes an acquittal more likely there is not 'a significant possibility that the jury, acting reasonable, [sic] would have acquitted the accused.'
3. As explained above, it is completely possible taking into account the new evidence that sex occurred and [Ms B] did not hear anything. It is also completely possible that the appellant did not think that [Ms B] could hear anything and, therefore, their agreement did not stop him from having sex with the complainant. In that context the verdict should not be overturned."
4. At best from the appellant's perspective the evidence of Ms B gives rise to the possibility that sexual intercourse did not occur. This possibility would arise primarily on the basis that Ms B would have heard any sexual activity, including the activity described by the complainant as occurring in the middle of the night.
5. I do not regard the agreement described by Ms B between her and the appellant as of any consequence. If the agreement existed, obviously the appellant was readily willing to ignore it in the morning.
6. As to the likelihood that Ms B would have heard an act of intercourse if it had occurred some time after the complainant went to sleep:
   • The act described by the complainant was unlikely to have been accompanied by any noise. It commenced while she was asleep and she did not move after she woke up and realised that the appellant was penetrating her.
   • According to the complainant, after she awoke the sexual intercourse continued for only a minute or so and then she went back to sleep.
   • There is no evidence as to the time the appellant and complainant went to bed, but it was obviously well into the evening. According to Ms B, at that time she had managed "a few hours" of "light and restless" sleep.
   • After the voices in the sunroom went quiet, believing the appellant and the complainant were asleep, Ms B alternated her position between the bedroom, lounge, kitchen (making tea or coffee), toilet and outside (for cigarettes). More time was spent on the lounge couch than the couch in the bedroom.
7. Ms B would not concede the possibility that an act of sexual intercourse might have occurred without her hearing it while she was undertaking any of these activities. In addition, she was adamant there was no possibility she dozed off at any time. Her adamance in this regard existed notwithstanding that on other occasions when another woman stayed overnight, Ms B dozed off after the appellant and the other woman were asleep.
8. There are a number of difficulties attending Ms B's evidence that there is no possibility of sexual intercourse having occurred without her hearing it.
9. First, the circumstances of the act described by the complainant strongly suggest that little noise would have accompanied it.
10. Secondly, for significant periods Ms B was moving around the home and undertaking activities likely to distract her concentration upon whether sounds were emanating from the sunroom occupied by the appellant and the complainant. Such activities took Ms B away from the immediate vicinity of the sunroom and, in themselves, some of the activities involved the creation of noise.
11. Thirdly, Ms B was relying upon memory which she had blocked out. Despite being told of the charge, and that she was present in the home when the events occurred, Ms B's memory did not return. Similarly, it did not return when her attention was drawn to an article about the conviction on Easter Sunday 2017. It was two days after Easter Sunday when the memory returned being three years after the events.
12. Ms B had not thought about the events for three years. She had blocked the memory out. In these circumstances, the unreliability of memory as to details and the dangers of reconstruction are obvious. At best, Ms B's adamant assertions are reconstructions in which she believes. In my view, however, a jury would have given these assertions little or no weight.
13. In my opinion, in the context of the evidence given at trial, the "fresh" evidence is not likely to have caused the jury to have "entertained a reasonable doubt" about guilt. Put another way, the evidence does not establish that there is a "significant possibility" that the jury, acting reasonably, would have acquitted the appellant.
14. For these reasons, in my view no miscarriage of justice has occurred by reason of the absence at trial of the evidence of Ms B.