Frew v R

Court of Criminal Appeal (NSW)|2022-04-13|Before: Brereton JA, Garling J, Hamill J

Ground 1: unreasonable verdict

The principles applicable on an appeal which complains that a verdict is unreasonable were restated by this Court in Dickson v The Queen, [87] by Bathurst CJ, with whom Johnson and Fullerton JJ concurred, as follows: "[84] The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v R (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v R (1994) 181 CLR 487; [1994] HCA 63 at 492-494, namely that the Court is required to make its own "independent assessment of the evidence". If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that "[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced" and "[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred": see also MFA v R (2002) 213 CLR 608; [2002] HCA 53 at [59]. [85] As was pointed out by Hayne J in Libke v R (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice. [86] In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [46]-[48]."
In considering this ground, an appellate court "must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses". [88] The assessment of the reliability and credibility of witnesses is quintessentially a matter for the jury. [89] These considerations are reinforced by the following observations of the High Court in The Queen v Baden-Clay (footnotes omitted): [90] "65. It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact". Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. 66. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.""
Nonetheless, the concluding words of that passage, and the authority cited for it, [91] show that the ultimate question remains whether the appellate 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. Baden-Clay does not detract from the propositions that: 1. the appellate Court must make its own independent assessment of the evidence, and if after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen and heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside; 2. in most cases a doubt experienced by an appellate Court will be a doubt which a jury ought also to have experienced, and only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt may the Court conclude that no miscarriage of justice occurred; 3. while it is not sufficient, to render a verdict unreasonable, that a review of the evidence shows only that it was possible for a jury to reach a different conclusion, it is also not sufficient, for a Court to conclude there was no miscarriage, that there was evidence on which a jury could convict: if after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.
These considerations apply, mutatis mutandis, to a verdict in a trial by judge alone. [92] However, in the context of a judge alone trial, the availability of reasons for a judge's decision will inform consideration of whether it is unreasonable, because, unlike in a jury trial, the process of reasoning is exposed, [93] with the consequence that the reasons may reveal unreasonableness, or conversely explain a conclusion that might, absent reasons, have appeared unreasonable.
Thus the applicable principles, in the context of an appeal to this Court from a conviction by judge alone, may be stated as follows: [94] 1. First, the question for the Court is whether it thinks that, upon the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant was guilty. [95] 2. Secondly, to address that question, the Court must make its own independent assessment of the sufficiency and quality of the evidence. [96] 3. Thirdly, although it will not suffice to set aside the conviction if it appears only that it was possible on the evidence for the trial judge to reach a different conclusion, the conviction must be set aside if the Court decides that the trial judge should have had a reasonable doubt about the applicant's guilt (in the sense that he or she must, as distinct from might, have entertained such a doubt), even if there was sufficient evidence in law to support it. [97] 4. Fourthly, a doubt experienced by the Court will generally be a doubt which the trial judge ought also to have experienced, and if the Court is left in reasonable doubt after giving full weight to the primacy of the trial judge, it is only where the trial judge's advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice. [98]

Application

There is of course no dispute that sexual intercourse, in the form of cunnilingus, occurred. The sole issue is that of consent. Consistently with the principles stated above, the issue for this Court therefore is whether it was open (in the sense described in SKA and Libke) on the whole of the evidence for the trial judge to be satisfied, beyond reasonable doubt, that to the applicant's knowledge the respondent was asleep and did not consent. For the reasons that follow, in my opinion it was not.
As is not infrequently the case in such circumstances, only two witnesses can give direct evidence on that question, and their versions differ. As is also not infrequently the case, the accuracy of their honest recollection may be affected by the circumstance that each was to a substantial extent though not seriously intoxicated, that the events occurred late at night when they are likely to be tired, that (at least in the case of the complainant) the crucial events occurred after she had been asleep for a while and she returned to sleep almost immediately thereafter, and by their later "processing" and rationalisation of what transpired.
It is well-established that in such circumstances, a preference for the prosecution evidence is not enough to support a conviction: the accused must not be convicted unless the trier of fact is satisfied beyond reasonable doubt of the truth of the complainant's evidence, and even if the evidence relied upon by the accused is not positively believed, the accused must not be convicted if that evidence gives rise to a reasonable doubt about guilt. Where, as here, the accused has given evidence, the approach required of the judge of the facts is that embodied in the "Liberato direction", [99] namely that: 1. if the accused's evidence is believed, the accused must be acquitted; 2. if the accused's evidence is difficult to accept but may nonetheless, as a matter of reasonable possibility, be true, the accused must be acquitted; 3. if the accused's evidence is disbelieved, then it should be put to one side, but the question remains, has the Crown, upon the basis of evidence that is accepted, proved the accused's guilt beyond reasonable doubt?
Having reviewed the whole of the evidence, I am unable to prefer one version to the other. As it seems to me, none of the surrounding circumstances, nor the subsequent events, is irreconcilable with either version. There are minor indicia which slightly favour one case or the other. For example, the complainant's account that she called Jake to get the applicant out of the room derives some corroboration from the record that such a call was made at 1:43 am. However, that is undermined by the circumstance that the applicant had already sent her messages at 1:41 and 1:42 am, having left her room - before she made the call to Jake.
That the applicant was concerned about the complainant's welfare tends to be confirmed by the messages he sent her at 12:34 am and 12:52 am.
The text message exchange on the morning of 18 March seems to me consistent with the applicant's version that the encounter had been broken off because he had a "moment of clarity", and inconsistent with his having any belief that she was not a consenting party. The exchange is redolent of the flatmates in the cold light of morning wondering how the sexual encounter between them had surprisingly come about. The applicant's account in those text messages appears accurate and frank, and the complainant's account reveals a considerable measure of uncertainty as to what had transpired.
The exchange on 21 March 2019 is also significant, for several reasons. First, the flavour of the exchange is that the applicant was genuinely surprised at the suggestion that the complainant was asleep and not a willing participant. Secondly, there is the complainant's statement that "I cannot say for sure that I didn't [wake up and consent]". Thirdly, the complainant's certainty that she was asleep appears to be a reconstruction from the text messages on the night in question.
Next, the recorded conversations (which the applicant had no reason to suspect were other than private) are again suggestive that he is disbelieving, and affronted, at the suggestion that the complainant was not awake and a willing participant.
The applicant's account was therefore supported by his text enquiries of the complainant's welfare on the night before their encounter; by his behaviour and account the following morning; by his denials when a different version began to emerge, and also by the evidence of his good character.
Other matters which contribute to doubt about the complainant's version include the absence until 21 March of any suggestion that she was asleep, as opposed to the presence of statements that she is having "weird flash backs" when her account is that she stopped a sexual assault by kicking the applicant and making a phone call; and the circumstance that after the encounter she quickly fell back to sleep, to awake to her alarm at 7:00 am, which seems unlikely if she had just experienced and fended off a sexual assault.
The Crown submitted that the applicant's evidence, while detailed as to the matters relied on to indicate consent, was otherwise vague as to the conversation that preceded it, what they were talking about when he first entered the room, the "discussion about kissing" before they began to kiss, and what (on his account) she was wearing. [100] However, the lack of recollection about the content of the conversation is hardly surprising, especially in the context where, as has been pointed out, both the applicant and the complainant were affected by alcohol and likely to be tired, to the extent that the complainant could not recall the subject matter let alone detail of the conversation in the applicant's bedroom before she went upstairs to vomit. [101]
The trial judge, having appropriately given herself a Liberato direction, [102] rejected the applicant's account for the following reasons: [103] "Simply put and notwithstanding the evidence of good character, I do not accept the accused's evidence that he followed the complainant up the stairs and watched her vomit, and then he had told her he would check on her. There was no basis for his asserted concern that would cause him to go up the stairs and open her closed door and wake her up. That the accused did, as he stated, is critically lacking in plausibility. I reject the submission that his evidence is sufficiently coherent, consistent and reliable and I do not accept it. Simply put, there is no logical or plausible reason why he would follow the complainant up the stairs when she had left his bedroom. There was no plausible basis for him to hold concerns for her welfare when she did not reply to his initial messages. She had told him she was fine and was going to bed. Other than text, he did not call, he did not knock and he did not wait for a response. He had no reason to go upstairs and enter her bedroom. I do not believe the accused's evidence and I put it to one side."
Essentially, therefore, her Honour rejected his evidence as implausible, on the basis that there was no good reason for him to follow her upstairs when she left his bedroom to vomit, and no good reason for him to return later and enter her bedroom. I am afraid I am quite unable to share that view. It is clear enough that the relationship between the complainant and the applicant, although until then entirely platonic, was a close and caring one. Even if it was not, the idea that it is implausible that one flatmate, having been told by another that she was feeling unwell and was going to vomit, might accompany her to a bathroom while she did so, and later check on her welfare, involves a view of human nature that I do not hold. I see nothing implausible about the suggestion that in those circumstances he might say that he would come and check on her later, and that when she did not respond to text messages, he might do so. To my mind, it is much more likely that his text messages at 12:34 and 12:52 were a manifestation of genuine concern for her welfare, than, as the Crown would have it, a pretext for going to the complainant's room in the early hours of the morning.
Were this a civil case, I would have difficulty in being satisfied on the balance of probabilities that the complainant's version was to be preferred to the applicant's. That of course is not the test. As I have indicated, even if the applicant's evidence is not affirmatively believed, he is entitled to an acquittal if the trier of fact considers that it might be true, in the sense that there is a reasonable possibility that it is true. In my judgment, there is at the least a reasonable possibility that the applicant's account might be true, and thus a reasonable doubt as to his guilt.
In those circumstances the remaining question is whether the doubt I entertain can be resolved by the trial judge's advantage in seeing and hearing the evidence. [104] It is true that her Honour relied to some extent upon demeanour in accepting the complainant's evidence. [105] However, her Honour properly down-played the significance of demeanour, observing that it was not "the only or even the most important factor in my decision", [106] for reasons which her Honour there gave. More importantly, while demeanour played some role in her Honour's acceptance of the complainant, it does not appear to have played any role in her Honour's rejection of the applicant: that rejection was based, as explained above, on her Honour's view of the plausibility of the applicant's account, a view which with great respect I am unable to share. As the Crown responsibly accepted in the course of the hearing of the appeal, plausibility not demeanour provided the basis for her Honour's disbelief of the applicant, and in that respect the trial judge enjoyed no advantage over this Court.
It follows that in my judgment, the reasonable doubt which, having reviewed the whole of the evidence, I entertain as to the applicant's guilt, is one which the trial judge ought to have entertained, and that in the relevant sense the conviction was unreasonable. The sole ground of appeal is therefore made out.

Conclusion

It was for those reasons that, at the conclusion of the hearing, I joined in the orders of the Court that: 1. Leave to appeal be granted; 2. The appeal be allowed; 3. The conviction of the applicant in the District Court on 3 March 2021 and consequent sentence imposed on 2 July 2021 be quashed; 4. There be substituted a verdict of acquittal; and 5. The applicant be released from custody forthwith.
GARLING J: I joined in the orders of the Court which were made on 13 April 2022, for the reasons which follow.
In setting out my reasons, I adopt, gratefully, the detailed description of the trial proceedings below and on appeal as set out in the judgment of the presiding Judge.
As the trial Judge recognised, this was a case in which it was appropriate for a direction to be given in accordance with Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66. It is important to note, as the High Court made clear in Murray v The Queen (2002) 211 CLR 193 at 213; [2002] HCA 26 at [57], that it is not appropriate to frame the issue for determination in a trial such as this as involving a choice between conflicting prosecution and defence evidence - i.e., preferring one version of events over another. That is because the issue is always whether the prosecution has proved each of the elements of the offence beyond reasonable doubt.
The Liberato direction is an approach to the evaluation of conflicting evidence of the kind which existed in this case. But it is no more than an approach which leads to the ultimate question of whether the prosecution has proved its case beyond reasonable doubt.
Here, the accounts of the only two witnesses to the disputed events upon which the prosecution relied to constitute the offence were those of the complainant and of the applicant. There was no dispute that sexual intercourse had taken place.
However, in order to obtain a conviction, the prosecution was obliged to prove, beyond reasonable doubt, not only that sexual intercourse occurred, but that the complainant did not consent to the sexual intercourse, and that the applicant knew that she did not consent. These last two elements were in dispute in the trial.
The complainant gave a sworn factual account of the events of the evening in question. It was an account which was generally consistent with some but not all of the contemporaneous accounts or comments which she made either by text message or in conversation. The trial Judge was impressed with the complainant's demeanour but did not rely upon that as a circumstance which assisted her to decide if the prosecution had proved all of the elements of its case beyond reasonable doubt, namely, those relating to the absence of consent on the part of the complainant, and the existence of knowledge of that absence of consent on the part of the applicant.
The applicant also gave a sworn factual account of the events of that evening. It was also an account which was also generally consistent with his text messages and the reasonably contemporaneous accounts which he gave. The effect of his evidence was that the complainant had given her consent to the sexual intercourse. Such evidence necessarily established both the objective fact, as well as his state of mind. In weighing up his evidence, the trial Judge was obliged, by law, to give weight to his previous good character both on the issue of whether his sworn account ought to have been believed and also whether he was unlikely to have committed the offence.
Having read and considered all of the evidence, I reached the conclusion that the Crown failed to prove its case beyond reasonable doubt - that was because I was satisfied that the applicant's account as to what had occurred could not be ignored as a reasonably possible version of the events of the evening in question. Because the applicant's factual account could not be dismissed, but remained a reasonably possible version as to what occurred, the trial Judge must have had a doubt about whether the Crown had proved that the complainant did not consent to the sexual intercourse which occurred. It would follow that if the Crown had not proved this element of the offence, it could not prove beyond reasonable doubt that the applicant did not know that the complainant did not consent to the sexual intercourse.
Because I have such a doubt, I also need to be satisfied that the undoubted advantage of the trial Judge in seeing and hearing the two witnesses give their evidence may not have been sufficient to resolve the doubt which I have. The trial Judge in her reasons did not rely on an assessment of demeanour to discount the evidence of the applicant in any way.
In those circumstances, because I have such a doubt, so should the trial judge, and the applicant ought to have been acquitted at trial. For these reasons I joined in with the orders of the Court.
HAMILL J: On 13 April 2022, I joined in orders allowing the appeal by Mr Frew and quashing his conviction for sexual intercourse without consent. I did so on the basis of my conclusion that the verdict of the trial judge was unreasonable and unable to be supported. On a close examination of the record of the trial, I entertained a reasonable doubt about the applicant's guilt and was firmly of the view that the doubt I experienced could not be dispelled or explained by the advantages enjoyed by the trial Judge who saw the witnesses give evidence.
As to the limitations on that advantage, and on the capacity of a single judge to make assessments based on the demeanour of witnesses, see the discussion of the cases such as Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Galea v Galea (1990) 19 NSWLR 263 and Prouten v Chapman [2021] NSWCA 207 by Leeming JA in Hodgson v R [2022] NSWCCA 72 at [95]-[97].
I have now had the benefit of reading the draft reasons of Brereton JA. His Honour's judgment largely encapsulates my reasons for experiencing a doubt as to the applicant's guilt. I would not place a great deal of weight on some of the matters concerning the complainant's conduct in the immediate aftermath of the alleged assault, such as her falling off to sleep and waking to an alarm several hours later. The ways that a person may react to a sexual assault, especially of the kind alleged in this case, are unknowable and unpredictable. [107]
On the other hand, the exchange of text messages between the parties, which Brereton JA emphasises at [21]-[39], raises significant doubts both as to proof (beyond reasonable doubt) of non-consent and proof of the applicant's state of mind. While the issue of recklessness was raised, the prosecution's case at trial was clearly that the applicant knew the complainant was asleep and did not consent. So much is clear from the following cross-examination: "Q. I suggest to you that [the complainant] wasn't awake when you entered the bedroom and at no point did she wake up. A. I deny that. Q. You crept into the bedroom so as not to wake her. Do you accept that? A. No, I don't. Q. You opened the door and you closed it behind you so you could create some privacy. Do you accept that? A. Not in the way you're contextualising it, no. … Q. You were looking for some physical intimacy. A. No. Q. You approached her while she was sleeping and you put your head between her legs. A. No. Q. You performed oral sex upon her while she was sleeping. A. No. Q. You knew she was asleep. A. No. Q. You didn't turn your mind to whether she was consenting to that act of cunnilingus. A. Not true. Q. There was absolutely nothing about this situation which could have given you the impression that she was consenting. A. Absolutely not true." [108]
There was nothing inherently implausible in the applicant's denials in his evidence and his account receives some support in the text message exchange. I am unable to rule out the reasonable possibility that his evidence was true.
Having made those brief observations, I am generally in agreement with the reasons provided by the presiding Judge.

Endnotes

Tcpt, 23 February 2021, pp 28-29.
Tcpt, 23 February 2021, p 29(13-26).
Tcpt, 23 February 2021, p 59(26-31).
Tcpt, 25 February 2021, p 162(10-23).
Tcpt, 25 February 2021, p 163(19-21).
Tcpt, 23 February 2021, p 29(29-30).
Tcpt, 23 February 2021, pp 29-30.
Tcpt, 23 February 2021, p 29(42-46); 60(33-35).
Tcpt, 25 February 2021, p 148(11-14).
Tcpt, 25 February 2021, p 164(34-42).
Tcpt, 25 February 2021, p 148(15-16).
Tcpt, 25 February 2021, p 148(18-20).
Tcpt, 23 February 2021, p 61(36-43).
Tcpt, 23 February 2021, p 61(45-46).
Tcpt, 23 February 2021, p 62(01-03).
Tcpt, 23 February 2021, p 30(14-19).
Tcpt, 23 February 2021, p 30(31-32).
Tcpt, 23 February 2021, p 30(42) - 31(06).
Tcpt, 25 February 2021, p 170(02-04).
Tcpt, 25 February 2021, p 167(40).
Tcpt, 25 February 2021, p 148(39-41).
Tcpt, 25 February 2021, p 148(39-42).
Tcpt, 25 February 2021, p 172(40-47).
Tcpt, 25 February 2021, p 148(42-43).
Tcpt, 25 February 2021, p 149(02-06).
Tcpt, 25 February 2021, p 149(08-12).
Tcpt, 25 February 2021, p 149(29-30).
Tcpt, 25 February 2021, p 149(45-48).
Tcpt, 25 February 2021, p 150(03-09).
Tcpt, 25 February 2021, p 150.
Tcpt, 25 February 2021, p 150(23) - 151(02).
Tcpt, 23 February 2021, p 88(49) - 89(01-09).
Tcpt, 23 February 2021, p 89(23-28).
Tcpt, 23 February 2021, p 89(30-41).
Tcpt, 23 February 2021, p 90(03-09).
Tcpt, 23 February 2021, p 90(21-23).
Tcpt, 23 February 2021, p 90(35-36).
Tcpt, 23 February 2021, p 90(38-43).
Tcpt, 23 February 2021, p 31(13-21).
Tcpt, 23 February 2021, pp 31-32.
Tcpt, 23 February 2021, pp 31-32.
Tcpt, 23 February 2021, pp 33-34.
Tcpt, 23 February 2021, pp 34-35.
Tcpt, 23 February 2021, p 35(20-21).
Tcpt, 23 February 2021, p 62(35-39).
Tcpt, 23 February 2021, p 62(41-49).
Tcpt, 25 February 2021, pp 151(39) - 152(09).
Tcpt, 23 February 2021, p 36(35-39).
Tcpt, 23 February 2021, p 38(17-21).
Tcpt, 23 February 2021, p 38(27-29).
Tcpt, 23 February 2021, p 38(44-45).
Tcpt, 25 February 2021, p 153(29-32).
Tcpt, 23 February 2021, p 39(03-04).
Tcpt, 23 February 2021, p 39(06-21).
Tcpt, 23 February 2021, p 39(25-35); 24 February 2021, pp 114(21) - 115(31).
Tcpt, 23 February 2021, p 65(32-34).
Tcpt, 24 February 2021, p 115(07-08).
Tcpt, 23 February 2021, p 39(32).
Tcpt, 23 February 2021, p 39(41-44).
Tcpt, 23 February 2021, pp 39-40.
Tcpt, 23 February 2021, p 40.
Tcpt, 25 February 2021, p 81(36-49).
Tcpt, 24 February 2021, p 101(05-09).
Tcpt, 24 February 2021, p 101(42-43).
Tcpt, 24 February 2021, pp 101(49) - 102(01).
Tcpt, 24 February 2021, p 102(15-17).
Tcpt, 23 February 2021, p 44(45-47).
Tcpt, 25 February 2021, p 154(32-37).
Tcpt, 23 February 2021, pp 46(41) - 47(01); 25 February 2021, p 154(43-44).
Tcpt, 25 February 2021, p 156(10-12).
Tcpt, 25 February 2021, p 156(17-29).
Tcpt, 25 February 2021, p 157(17-32).
Tcpt, 23 February 2021, p 48(26-29).
Tcpt, 23 February 2021, p 48(37-41).
Tcpt, 23 February 2021, pp 49(42) - 50(12), 55(05-08); 24 February 2021, pp 131(22-23), 134(03-18).
Tcpt, 24 February 2021, pp 124(32) - 125(03).
Tcpt, 23 February 2021, p 53(09-12).
Tcpt, 23 February 2021, p 53(16-19).
Tcpt, 23 February 2021, p 53(21-28).
Tcpt, 23 February 2021, p 53(37).
Tcpt, 24 February 2021, p 110(04-06).
Tcpt, 23 February 2021, pp 53(42-48); 24 February 2021, pp 106(04-08); 25 February 2021, p 158(08-17).
Tcpt, 23 February 2021, p 54(38-41).
Tcpt, 23 February 2021, p 56(36-42).
Tcpt, 24 February 2021, p 130(40-45).
Tcpt, 25 February 2021, pp 198(04), (27-30); 201(35-37); 204(12-18).
(2017) 94 NSWLR 476; [2017] NSWCCA 78.
M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13] (French CJ, Gummow and Kiefel JJ) ("SKA").
Atai v R [2014] NSWCCA 210 at [134] (R A Hulme J).
(2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ) ("Baden-Clay").
M v The Queen (1994) 181 CLR 487 at 494-5 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; see also Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [24] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); R v Holden [2014] NSWCCA 230 at [23]-[27] (Harrison J; Johnson and Garling JJ agreeing); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12] (French CJ, Bell, Keane and Nettle JJ); Smith v R [2019] NSWCCA 162 at [70] (Davies J, Hoeben CJ and Fagan J agreeing).
Ford v R [2020] NSWCCA 99 at [53]-[56] (Brereton JA; Bellew and Lonergan JJ agreeing); cf Bell v R [2017] NSWCCA 207 at [20]-[25] (Bathurst CJ, McCallum and N Adams JJ); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12] (French CJ, Bell, Keane and Nettle JJ), [81]-[83] (Gageler J).
Ford v R [2020] NSWCCA 99 at [56] (Brereton JA, Bellew and Lonergan JJ agreeing).
M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
M v The Queen (1994) 181 CLR 487 at 492 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14] (French CJ, Gummow and Kiefel JJ); Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84] (Bathurst CJ; Johnson and Fullerton JJ agreeing).
M v The Queen (1994) 181 CLR 487 at 492-5 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Hayne J; Gleeson CJ and Heydon J agreeing) ("Libke"); Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [85] (Bathurst CJ; Johnson and Fullerton JJ agreeing).
M v The Queen (1994) 181 CLR 487 at 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [85] (Bathurst CJ; Johnson and Fullerton JJ agreeing); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12] (French CJ, Bell, Keane and Nettle JJ).
Liberato v The Queen (1985) 159 CLR 507 at 515 (Brennan J); [1985] HCA 66; De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ).
Tcpt, 25 February 2021, pp 173-175.
Tcpt, 23 February 2021, p 29(32-34).
Judgment tcpt, 3 March 2021, pp 19-20, 24.
Judgment tcpt, 3 March 2021, pp 26-27.
Gittany v R [2016] NSWCCA 182 at [112] (Basten JA; R A Hulme and Fagan JJ agreeing).
Judgment tcpt, 3 March 2021, pp 27-30.
Judgment tcpt, 3 March 2021, p 17.
Cf Maughan v R [2020] NSWCCA 51 at [99]; Rao v R [2019] NSWCCA 290 at [98]; Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [73].
Trial Tcpt, 25 February 2021, pp 177 - 178.

Amendments 12 August 2022 - Correct typographical error in paragraph (2) of Headnote. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 August 2022

Crimes Act 1999(NSW)

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was convicted after a judge-alone trial in the District Court of a single count of sexual intercourse without consent contrary to Crimes Act 1999 (NSW), s 61I. There was no dispute that sexual intercourse had taken place; the only issue at trial was that of consent. In finding the applicant guilty, the trial judge found that the complainant did not consent to the sexual intercourse, and that the applicant knew that she did not. The applicant sought leave to appeal the conviction on the sole ground that the verdict was unreasonable having regard to the evidence. Held, per Brereton JA [64]; Garling J [76] and Hamill J agreeing [82]), having at the conclusion of the hearing of the appeal granted leave to appeal, allowed the appeal, quashed the conviction and sentence, substituted a verdict of acquittal and ordered the applicant's release forthwith:

In order to obtain a conviction, the prosecution was obliged to prove beyond reasonable doubt that the complainant did not consent to the sexual intercourse, and that the applicant knew that she did not consent. Upon review of the whole of the evidence, there is at least a reasonable possibility that the applicant's account - that the complainant did consent, or that he believed that she did so - might be true. As a result, there remains a reasonable doubt as to his guilt, such that the Crown did not prove its case to the requisite standard: [61]-[62] (Brereton JA); [74] (Garling J); [77], [81]-[82] (Hamill J). Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 and De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48, followed; Murray v The Queen (2002) 211 CLR 193, considered.
Where an appellate Court entertains a reasonable doubt as to a convicted person's guilt, the question is then whether that doubt can be resolved by the advantage enjoyed by the primary finder of fact in seeing and hearing the evidence. In this case, the trial judge rejected the applicant's account on the basis of plausibility, not demeanour, and in that respect enjoyed no advantage over the appellate Court. Accordingly, the doubt entertained by this Court ought to have been entertained by the trial judge: [63]-[64] (Brereton JA); [75]-[76] (Garling J); [77], [82] (Hamill J). Gittany v R [2016] NSWCCA 182, applied.

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