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[2024] ACTCA 28
respondent. Appeal dismissed. The Court held that none of the three grounds of appeal was established ([132]).
The ACT Court of Appeal dismissed Hudson's appeal against his convictions. The jury's acquittals on some charges did not make its convictions on other charges logically inconsistent, because different charges required proof of different things. The Court also concluded that the evidence was capable of supporting the guilty verdicts despite imperfections in the complainant's recall. Finally, the jury had been told to assess Hudson's state of mind as he was on the night, including taking account of his drinking. The Court found no basis to disturb the convictions.
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2,349 words · generated 08/10/2026
Hudson v DPP [2024] ACTCA 28 is an appeal from jury convictions arising out of an encounter at Langtrees, a Canberra brothel. The Court of Appeal heard the appeal on 23 February 2024 and delivered judgment on 21 October 2024. McCallum CJ, Baker and Rangiah JJ dismissed it.
1 cited instrument linked from this judgment.
The appellant attended the brothel with a friend in the early hours of 26 February 2021. He booked a service with the complainant, and they went together to the Butterfly Suite. The appellant said the sexual activity was consensual. The prosecution case was that the encounter began as a consensual booking but later involved non-consensual acts, force, choking and damage to the room.
The jury returned a mix of verdicts. It acquitted the appellant on counts 1, 3, 4 and 6, while convicting him on counts 2, 5 and 7 to 14. The guilty counts included acts of indecency, sexual offences, choking, attempted sexual intercourse without consent and property damage. The mixed results mattered because the appellant argued that the convictions could not logically coexist with the acquittals.
The appeal had three grounds. First, Hudson argued the verdicts were inconsistent. Second, he argued the guilty verdicts were unreasonable, unsafe or unsatisfactory given the evidence. Third, he argued the trial judge did not adequately explain how the jury should account for his intoxication when considering his state of mind about consent. No objection had been made to the intoxication directions at trial, so the appellant also needed leave to raise that ground on appeal ([121]).
On inconsistent verdicts, the Court applied the “logic and reasonableness” test. The appellant had to show that the verdicts were “an affront to logic and commonsense” ([46]). The Court stressed that the inquiry was not simply whether the jury believed or disbelieved the complainant as a whole. A jury can accept a witness as honest and reliable in relation to some events, while having reasonable doubts about particular elements of other charges ([48]-[50]).
The Court gave count-specific explanations for the acquittals. For count 1, which concerned kissing, it was open to the jury to doubt whether the appellant appreciated that kissing on parts of the body other than the mouth was outside the service, particularly in light of the evidence about how the “no kissing” rule was explained, the complainant's apparent acquiescence at the time, and the appellant's intoxication ([63]). That doubt did not require the jury to reject the complainant's account of later acts.
Counts 3 and 6 required proof of sexual intercourse by cunnilingus. The jury could have been uncertain whether the acts described amounted to penetration, given both the nature of the alleged conduct and the complainant's use of terms such as “attempt” and “think” when describing some aspects of it ([64]-[66]). Counts 2 and 5, in contrast, alleged acts of indecency involving licking the complainant's buttocks. Those counts did not require proof of penetration. The distinction allowed the jury to convict on counts 2 and 5 while acquitting on counts 3 and 6 ([67]).
Count 4 turned on the appellant's intention while holding the complainant down. The jury had been told that the count could only be proved if it was satisfied he intended to perform cunnilingus. In response to a jury question, the trial judge explained that cunnilingus concerned female genitalia, not the anus. The jury could therefore have had a reasonable doubt about the appellant's precise intention without rejecting the complainant's evidence that he held her down and licked her anus ([68]-[70]). The Court concluded that the acquittals and convictions were reconcilable ([71]).
On the unreasonable-verdict ground, the Court applied the appellate review approach summarised in Marshall v The King [2023] ACTCA 11 at [145]-[146]. It examined the evidence independently, while recognising the jury's advantage in seeing and hearing witnesses. The relevant question was whether the evidence was sufficient in nature and quality to eliminate reasonable doubt, and whether the jury must have had a reasonable doubt, not merely whether an appellate court might have had one ([72], [87]).
The appellant relied on discrepancies in the complainant's accounts, uncertainty about sequence, and differences in what she told police, the doctor and the jury. The Court considered those matters in context. It noted that honest witnesses can be mistaken about details and that memory is not a video recording ([90]-[92]). Some discrepancies concerned peripheral details, including whether the appellant's mouth touched the complainant's lips or cheek and the precise number of times a condom was put on or removed ([91]).
The Court accepted that sequence could matter because the encounter began consensually and consent was later withdrawn. It nevertheless found that the complainant's difficulty recalling the exact order of every act was limited. Her accounts consistently placed the more serious acts after the point when the encounter shifted, including the appellant's request to look at her buttocks and subsequent use of force ([93]-[100]). The Court also identified evidence of lack of consent surrounding each guilty count, such as verbal protests, attempts to move away, physical restraint and pressure on the complainant's neck and windpipe ([100]).
The Court did not consider the medical evidence inconsistent with the complainant's account. The doctor recorded redness on the neck and abrasions to the genitalia and anus, although the doctor accepted that the marks might have had other causes ([37], [103]). The Court also rejected the suggestion that the complainant's account required independent corroboration, referring to Garay v The Queen (No 3) [2023] ACTCA 2 and Incandela v The Queen [2023] ACTCA 41 ([103]).
On intoxication, the trial judge had told the jury to assess what Hudson knew or realised “as he was on the night” ([109]-[110]). When the jury asked what that phrase meant, the judge said that they should not pretend Hudson was sober and should take account of the drinks he had consumed ([111]-[113]). Although the proposed direction on appeal was more detailed, the Court did not consider that its greater length alone demonstrated error. Some proposed material had no evidentiary foundation and might have distracted or misled the jury ([124]-[127]). The Court concluded that the jury was clearly instructed to consider intoxication when assessing knowledge or recklessness ([128]-[131]).
The judgment did not purport to change the law. It applied established principles to the particular verdicts and directions in Hudson's trial.
For inconsistent verdicts, the Court relied on the established “logic and reasonableness” test, including MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 ([46]). It also applied the proposition that acquittal on one charge does not necessarily mean the jury disbelieved the complainant altogether. Different verdicts may reflect differences in the detail, consistency or legal elements of the counts, or caution in applying the criminal standard of proof ([48]-[50]).
For unreasonable verdicts, the Court used the approach set out in Marshall v The King and referred to M v The Queen [1994] HCA 63; 181 CLR 487 ([72], [90]). The decision applies that approach to a case involving a complainant whose account contained some uncertainty, but whose evidence about the central conduct and lack of consent was found capable of supporting the verdicts.
For the unpreserved direction ground, the Court explained the function of r 5531 of the Court Procedure Rules 2006 (ACT). It requires leave where no objection was taken at trial. The rule recognises both the importance of correcting miscarriages of justice and the adversarial context in which trial counsel make decisions about evidence and directions ([121]-[123]). Hudson therefore illustrates application of that leave requirement, rather than a new rule about intoxication.
The judgment does not state that these doctrines changed after the appeal. Nor does the supplied judgment establish any later change in the law.
At [46], the Court said the appellant had to establish that the inconsistent verdicts were “an affront to logic and commonsense”. In plain English, the mere fact that a jury returned a mixture of guilty and not-guilty verdicts does not establish legal inconsistency. The question is whether the verdicts can rationally coexist after considering the different elements of the charges.
At [48], the Court explained that a not-guilty verdict does not necessarily show that a complainant was disbelieved. The jury may accept some parts of the evidence more readily than others, or may require more before it is satisfied beyond reasonable doubt on a particular charge. This is significant where one complainant gives evidence about several alleged acts.
At [90], the Court referred to the idea that “memory is not like a video tape”. The passage does not mean that discrepancies are irrelevant. At [92], the Court also recognised that discrepancies can be decisive where accuracy is vital. Rather, the Court's point was that a witness's uncertainty about details must be assessed in context, including whether the disputed detail is central to a charge.
At [99], the Court described the complainant's memory as “a blurring around the edges” of the acts, rather than a jumble with no sequence at all. That finding helped the Court decide that the uncertainty did not undermine the guilty verdicts, because the complainant consistently placed the relevant guilty counts after the encounter had shifted.
At [100], the Court linked the circumstances of each count to the issue of consent. It referred to evidence of resistance, requests to stop, restraint, pressure on the complainant's body and the appellant's conduct. Its reasoning was that the prosecution case on the guilty counts did not depend solely on establishing the precise sequence of every act.
At [124], the Court cautioned that “a short but clear direction will be more effective than a longer, potentially confusing direction”. This is not a general licence to omit necessary directions. In this appeal, it supported the Court's conclusion that the appellant's proposed, longer direction did not have to be given merely because it was more detailed.
At [128]-[131], the Court found that the trial judge's repeated instruction to consider Hudson “as he was on the night” sufficiently conveyed that intoxication was relevant. The jury's question prompted a further explanation, including that it should not imagine he was sober.
The inconsistent-verdict analysis is relevant where a jury returns both convictions and acquittals arising from a connected incident, especially where the charges require proof of different elements. Hudson shows why each count must be examined separately: a count may require proof of penetration, a particular intention, knowledge or recklessness, while another count based on related conduct may not require that same element ([49]-[50], [64]-[70]).
The decision is also relevant where an appellant argues that acquittals demonstrate that the jury could not rationally have relied on the same complainant's evidence for other counts. The Court's analysis indicates that the question is not whether the verdicts differ, but whether reasonable explanations exist for the different outcomes, including differences in evidence and elements ([48], [62]-[71]).
For unreasonable-verdict appeals, Hudson may be relevant where a witness gives accounts with omissions, corrections or uncertainty about sequence. The Court considered whether the difficulties affected central facts or instead concerned detail, and whether other evidence and the circumstances surrounding the acts supported the verdicts ([90]-[103]). The judgment does not say that all discrepancies are immaterial. It expressly recognises that inaccuracies can matter where accurate recollection is vital ([92]).
The intoxication discussion is relevant where intoxication bears on an accused's knowledge or recklessness about consent, and the trial judge has directed the jury to consider the accused as he or she was at the time. It also addresses a distinct procedural situation: the complaint about the direction was not made at trial, so leave was required to raise it on appeal ([121]-[131]).
The supplied text is the judgment itself and does not identify any later decisions applying, distinguishing or criticising Hudson. It would therefore be unsupported to describe its later treatment.
The Court itself applied or discussed earlier authorities. It applied the inconsistent-verdict principles associated with MacKenzie and considered earlier ACT Court of Appeal decisions, including ED v The Queen and BI v The Queen (No 2) ([46]-[50]). It relied on the unreasonable-verdict approach in Marshall v The King and referred to M v The Queen and Liberato v The Queen in assessing the evidence ([72], [89]-[92]). For the unpreserved direction ground, it discussed ACT and NSW authorities concerning the purpose and operation of rules requiring leave where no objection was taken ([121]-[123]).
Those citations show the judgment's place within the authorities it considered, but they do not establish how later courts have treated Hudson itself.
The judgment resolves the three appeal grounds on the facts and record before it. It does not decide how a different jury direction about intoxication would be assessed in a case where the evidence specifically suggested that intoxication affected the accused's capacity to form or maintain a relevant state of mind. In Hudson, the Court said there was no suggestion or evidentiary foundation that the appellant had acted without forming a particular intent ([125]-[126]).
The Court also did not formulate a universal test for when sequencing discrepancies become so significant that they require an acquittal. It accepted that sequence was potentially important in this case, then examined the actual evidence and found the difficulties limited ([93]-[100]). The significance of sequence remains dependent on the elements of the particular offences and the evidence about when consent was withdrawn.
Similarly, the judgment does not suggest that mixed verdicts will always be reconcilable, or that credibility concerns can never undermine several counts. It found rational explanations for the particular acquittals, including the distinction between indecency and offences requiring penetration, and the uncertainty about intention on count 4 ([64]-[70]).
The judgment also does not report subsequent treatment of its reasoning. Any account of later developments would require sources beyond the judgment provided here.
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Hudson v DPP Citation: [2024] ACTCA 28 Hearing Date: 23 February 2024 Decision Date: 21 October 2024 Before: McCallum CJ, Baker and Rangiah JJ Decision: Appeal dismissed Catchwords: APPEAL – CRIMINAL LAW – Sexual assault – jury trial – inconsistent verdicts – trial involved single complainant and single event – whether verdicts unreasonable – adequacy of trial judge’s directions to jury on intoxication – where no objection to directions at trial Legislation Cited: Crimes Act 1900 (ACT), ss 28(2), 53(1), 54(1), 60(1) Court Procedure Rules 2006 (ACT), r 5531 Criminal Appeal Rules (NSW) Criminal Code 2002 (ACT) Cases Cited: AWK v Tasmania [2024] TASCCA 5 Agresti v The Queen [2017] ACTCA 20; 13 ACTLR 1 Astill v The King [2024] NSWCCA 118 BI v The Queen (No 2) [2018] ACTCA 11 Cliff v The King [2023] NSWCCA 15 DS v R [2021] NSWCCA 52 ED v The Queen [2019] ACTCA 10 Ganiji v R [2019] NSWCCA 208 Incandela v The Queen [2023] ACTCA 41 Liberato v The Queen [1985] HCA 66; 159 CLR 507 M v the Queen [1994] HCA 63; 181 CLR 487 Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 Marsh v The Queen [2018] ACTCA 55 Marshall v The King [2023] ACTCA 11 Michel v The Queen [2007] NSWCCA 337 Munro v The Queen [2014] ACTCA 11 R v TK [2009] NSWCCA 151; 74 NSWLR 299 R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) [2020] ACTSC 274 Roach v The Queen [2019] NSWCCA 160; 344 FLR 429 Saunders v R [2022] NSWCCA 273 Stevens v The Queen [2018] ACTCA 7 Vunilagi v The Queen [2021] ACTCA 12; 17 ACTLR 72 Warne v The King [2023] ACTCA 1; 374 FLR 311 Wyper v The Queen; R v Wyper [2017] ACTCA 59; 19 ACTLR 288 Parties: Darrell Hudson (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel K Ginges with W Bruffey (Appellant) K McCann with E Roff (Respondent) Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 18 of 2023 Decision Under Appeal: Court/Tribunal: ACT Supreme Court Before: Berman AJ Date of Decision: 24 April 2023 Case Title: DPP v Hudson Court File Numbers: SCC 172 of 2022 SCC 173 of 2022 THE COURT: Introduction
On 26 February 2021, Mr Darrell Hudson (the appellant), attended a brothel and engaged the services of the complainant. They then went to a room in the brothel alone together. The prosecution alleged that the appellant then committed various acts of indecency without consent upon the complainant, that he sexually assaulted her, choked her and punched a hole in the brothel wall. The appellant pleaded not guilty to each allegation, contending that all sexual activity occurred with the complainant’s consent. He acknowledged that he punched the brothel wall, but said that he did this because he was afraid that the complainant had called “bikies” or “another male” to come to harm him.
The appellant was tried before a jury of twelve, presided over by Berman AJ (the trial judge) from 17 April 2023 to 24 April 2023. On 24 April 2023, the jury returned the following verdicts: (a) Count 1 (CAN2022/93) – act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) – not guilty. (b) Count 2 (CAN2021/1030) – act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) – guilty. (c) Count 3 (CAN2022/94) – sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) – not guilty. rd (d) Count 4 (CAN2022/95) – sexual assault in the 3 degree, contrary to s 53(1) of the Crimes Act 1900 (ACT) – not guilty. (e) Count 5 (CAN2021/1034) – act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) – guilty. (f) Count 6 (CAN2022/96) – sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) – not guilty. (g) Count 7 (CAN2021/6706) – act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) – guilty. rd (h) Count 8 (CAN2022/97) – sexual assault in the 3 degree, contrary to s 53(1) of the Crimes Act 1900 (ACT) – guilty. (i) Count 9 (CAN2022/6708) – sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) – guilty. (j) Count 10 (CAN2022/6705) – choke/suffocate/strangle, contrary to s 28(2) of the Crimes Act 1900 (ACT) – guilty. (k) Count 11 (CAN2022/1032) – sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) – guilty. (l) Count 12 (CAN2022/6711) – attempt sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) by virtue of s 44 of the Criminal Code 2002 (ACT) – guilty. (m) Count 13 (CAN2022/6710) – sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) – guilty. (n) Count 14 (CAN2022/6707) – property damage, contrary to s 403 of the Criminal Code 2002 (ACT) – guilty.
On 17 November 2023, the trial judge sentenced the appellants on counts 2, 5, 7, 8, 9, 10, 11, 12, 13 and 14. At that time, the trial judge also sentenced the appellant for a transfer charge of common assault arising from the same incident (CAN2022/6704).
By way of Notice of Appeal filed 19 May 2023, the appellant appeals against his convictions on the following grounds: (a) The jury’s verdicts of guilty on counts 2, 5, 7, 8, 9, 10, 11, 12 and 13 cannot be reconciled with the verdicts of not guilty on counts 1, 3, 4 and 6; and (b) The jury’s verdicts of guilty on counts 2, 5, 7, 8, 9, 10, 11, 12 and 13 are unreasonable, unsafe or unsatisfactory, having regard to the evidence.
By way of Amended Notice of Appeal filed 23 February 2024, the appellant added the following additional ground of appeal: (c) The learned trial judge erred in failing to provide any, or any adequate, direction to the jury as to how they take into account the appellant’s intoxication on their consideration of his recklessness as to consent.
The appellant seeks orders setting aside the verdicts upon which he was found guilty and the entry of verdicts of not guilty in respect of each of those counts.
For the following reasons, the appellant has not established any of the three grounds of appeal. The appeal should be dismissed. The evidence in the trial
The complainant’s evidence Evidence in Chief Interview
On 26 February 2021, the complainant participated in an Evidence in Chief Interview (EICI) with police in which she provided the following account.
On the night of 25 February 2021 to 26 February 2021, the complainant was working at the brothel Langtrees. In the early hours of 26 February 2021, the complainant and her co-worker approached two potential clients (the appellant and his friend) who were sitting at the Langtrees bar. The complainant and her co-worker introduced themselves and their services. The appellant and the appellant’s friend appeared to be intoxicated at this time.
The appellant booked a service with the complainant. The complainant told the appellant this would be a “standard service”, with a duration of thirty minutes. The complainant explained in the EICI that a “standard service” at Langtrees included massages, oral sex on the client with a condom and sexual intercourse in multiple positions. A deluxe service included additional services including oral sex on the sex worker and intimate touching. The complainant gave evidence that she heard her co-worker explain the potential extra services to the appellant and his friend while they were at the bar.
The appellant paid $250 in cash to the receptionist to have an appointment with the complainant. The appellant was asked whether he wanted a “Kamagra” to assist in getting an erection, given his intoxication. He and the receptionist laughed about this. At some point in the conversation with the complainant, the appellant asked if they could get “bags” (cocaine). The complainant’s co-worker told them that they did not allow drugs on premises, however, it would be fine to take it in the room.
The appellant and the complainant walked to a room in the brothel called the ‘Butterfly Suite’. The complainant said that, by this time, the appellant “seemed a lot more drunk”. The complainant told the appellant what was included and not included in the standard service. In particular, she told him that she didn’t offer kissing, he could not perform oral sex on her, and that she did not offer anal services. The appellant “was happy to continue the booking”. The complainant then conducted a brief visual sexual health inspection of the appellant. The complainant told the appellant to have a shower. When the appellant had finished showering, the complainant lay down on the bed and the appellant came over. She then started touching the appellant’s penis in an attempt to get the appellant’s penis erect.
The complainant put the condom on the appellant’s penis with her mouth and began performing oral sex on him. The appellant was unable to get an erection. The appellant put his hand on the back of the complainant’s head and tried to “direct [her] head down”. The complainant said “please don’t hold my head”. She continued to perform oral sex. The appellant again brought his hand to the back of her head to try and force her head down. The complainant then lay next to the appellant and masturbated him again. Later in the interview, the complainant stated that after she told the appellant not to hold her head, the appellant apologised and stopped. She moved next to him on the bed.
Cross-examination
In cross-examination, the complainant acknowledged the following: (a) Upon watching the CCTV footage, the complainant agreed that the appellant himself did not pay at the counter and that she did not explain the terms of the service there. However, she stated that when the complainant later joined the reception counter with the appellant, the conversation that commenced between all three and the receptionist “had to do with the service, and the services [that were] included”. She maintained that she had explained the standard service to the appellant at least once. (b) The complainant agreed it was not possible for the appellant to have his head in her buttocks whilst his hand was on the back of her head as it would not have been possible for him to reach. She stated “while he was fingering me he was using his hand on the back of my neck and then while he was licking me he was using his … forearm as well. So [he] pushed on the back of my neck and … shoulders as well”. (c) The complainant conceded that she consented to the appellant caressing her buttocks. (d) The complainant conceded it was possible only two condoms were used during the session. (e) The complainant agreed that whilst she was touching the appellant’s penis, he attempted to put a condom on. (f) The complainant agreed it was possible she had scratched her vagina when inserting or removing a vaginal sponge into or from her vagina. (g) The complainant agreed that the appellant had told her he was not likely to get an erection because of the cocaine that he had previously ingested. The co-worker’s evidence
The complainant’s co-worker, who was also employed as a sex worker at Langtrees, gave evidence that on the night of the incident, she and the complainant spoke to the appellant and his friend at the bar. The co-worker gave evidence that she explained what a standard service entailed to the two men when they were sitting at the bar table. She said that she told the males that a standard service “entails just a massage, blowjob and sex”, and that “all services are protected”. She said that “we explain that to every client who comes into the building”.
Constable Solly’s evidence
Constable Solly gave evidence that she received a dispatch from policing operations to attend the Langtrees brothel at approximately 3:20am on 26 February 2021.
Constable Solly gave evidence that when she arrived, the complainant was “really upset, as if she’d been crying”. Her eyes were red and glassy. She gave evidence that the complainant told her: … that she had a booking with her client, a male client, and there was some terms agreed and throughout – it was like a sexual encounter, he removed a condom and tried to force his penis into her mouth, which she told him not to, then she could feel his full body weight on her, she was trying to push him off, he was getting more and more angry as he couldn’t become erect, and then eventually she was able to sort of push him off and push a phone off the bedside table, which alerts security that she needs help. Security – I think she told me that the defendant jumped up and punched a hole through the wall and said something like ‘that should have been you’…
Constable Solly said that the complainant described the male’s appearance (there was no dispute that the male was the appellant). She also “had a quick look” in the bedroom where the incident had happened. The room was dishevelled, the bed was “all upturned”, the phone was hanging off the hook and there was a fist shaped hole in the wall. Langtrees employee
Another Langtrees employee also gave evidence. She said that she said to the appellant: A standard booking is $350, it goes for the one hour, its mutual… Its oral on you, services are protected and the girl controls the booking. You get three warnings. If the girls is uncomfortable then the booking is ended and a refund is not provided. If a booking is finished because of a failed health check, a full refund is not provided.
She also stated the appellant had booked a $350 standard service, which is an hour long booking (the complainant said that the booking was for 30 minutes). She said that when she served the appellant a drink “he seemed okay”, but that “by the time the booking has finished he did seem quite intoxicated”.
The employee said that she saw the telephone switchboard at reception indicate the telephone in the Butterfly suite was off the hook. She listened to the telephone and heard the complainant say “Get out”. She ran to the suite and saw the complainant picking her clothes up from the floor. In her examination in chief, the receptionist said that the complainant looked dishevelled and upset and was crying. She conceded in cross-examination she did not have a clear memory of the complainant crying, but was certain she was dishevelled. She also noted a hole in the wall that had not been there prior to the booking. The appellant was getting dressed and apologised. He said that he was leaving. She yelled at the appellant to get out.
In cross-examination, the employee conceded she was not the receptionist that night at Langtrees and that she was not handed money by the appellant. It was put to the employee that she “never spoke to [the appellant] about what services were included in the booking”, and instead spoke to the appellant’s friend about the terms of the service when he was paying. The employee agreed. Dr Van Diemen’s Evidence
First ground of appeal: inconsistent verdicts
Principles
The principles concerning inconsistent verdicts are well established: see ED v The Queen [2019] ACTCA 10 at [43]; BI v The Queen (No 2) [2018] ACTCA 11. For present purposes, it suffices to observe that the test is one of “logic and reasonableness”: MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366. It is necessary for the appellant to establish that the inconsistent verdicts are “an affront to logic and commonsense”: MacKenzie at 368. This presents a “relatively high bar that must be overcome”: Smith v R [2023] NSWCCA 118 at [62] (Beech Jones CJ at CL, as his Honour then was).
In considering whether two or more verdicts are inconsistent, it can be of assistance to consider possible explanations for the acquittals, rather than the convictions: R v TK [2009] NSWCCA 151 at [128]. However, this is not an absolute rule: Saunders v R [2022] NSWCCA 273 at [124]; DS v The Queen [2021] NSWCCA 52 at [23]. As it is the possible reasons for the different verdicts which must examined, the inquiry is not limited to the acquittals, but rather extends to all of the surrounding circumstances which may explain the reasons for the different verdicts: Ganiji v R [2019] NSWCCA 208 at [13].
It is common for different verdicts to occur and to be capable of standing logically together, even where a trial involves a single complainant and a single event: see, for example, ED; BI v The Queen (No 2) [2018] ACTCA 11. As this Court held in ED at [43(g)]: Although the credit of one complainant is critical to the consideration of a number of alleged offences, different verdicts may be capable of reconciliation. A verdict of not guilty does not necessarily imply that the complainant has been disbelieved, and may simply indicate that she has been found to be more reliable in relation to some aspect of her evidence than others. A jury may have considered the complainant’s evidence to be more reliable if, for example, the degree of detail and consistency of her account is greater in relation to some matters when compared to others. In other cases, while not disbelieving the complainant, the jury may have proceeded cautiously in relation to the “discharge of a heavy responsibility”. Jury directions emphasise the high standard of proof, and jurors may require some independent corroboration before they are satisfied beyond reasonable doubt of some allegations. (citations omitted)
In considering whether two or more verdicts are inconsistent, it is also important to bear in mind that, in order for the jury to convict an accused of any given count, it is necessary for the jury to be satisfied beyond reasonable doubt of each and every element of the offence charged. For this reason, an allegation of inconsistency in the verdicts requires careful consideration of each of the elements of the particular count.
In a case such as the present, many of the alleged offences will require that the jury be satisfied beyond reasonable doubt of matters that are not within the knowledge of the complainant. For example, where the allegation is of sexual intercourse without consent, the jury must be satisfied beyond reasonable doubt not only that the complainant did not consent to the alleged intercourse, but also that the accused knew that the complainant did not consent, or that he was reckless as to this fact. A reasonable doubt as to this element does not suggest that the jury formed any adverse conclusions as to the complainant’s credibility or reliability.
The appellant’s submissions
The appellant submitted that the jury’s verdicts of not guilty on counts 1, 3, 4 and 6 are irreconcilable with the jury’s guilty verdicts on the remaining counts on the indictment. The appellant contended that the jury’s verdicts of not guilty with respect to each of these counts can only be explained by the jury having had doubts as to the complainant’s credibility. He contended that this reasonable doubt should have extended to each of the counts on the indictment, other than count 14 (damage to property), which was unequivocally established, even on the appellant’s evidence.
In respect of count 1, the appellant submitted that it was clear on the complainant’s evidence that the complainant did not consent to the appellant kissing her. He contended that “if the complainant had been found by the jury to be credible, then the jury would have convicted on this count”, and that the only reasonable inference to be drawn from the acquittal is that the jury had a doubt as to the complainant’s credibility.
The appellant submitted that the acquittal for count 3 (‘licking etc vagina’) could not be reconciled with the conviction for count 2 (‘licking etc buttocks’), as those two counts were “interrelated and argued in tandem”. The appellant noted the trial judge’s direction to the jury that counts 4, 5 and 6 “are all related to each other”. He submitted that there was no logical explanation for why the jury would acquit the appellant of counts 3 and 4, but not count 2. He also submitted that “the same reason for acquitting the appellant for count 4, and especially count 6, would equally apply to count 5”.
The appellant’s counsel noted that of counts 1 – 6, the jury were only satisfied beyond reasonable doubt of the counts alleging the licking of the complainant’s buttocks. He submitted that there was no additional evidence of the appellant licking the complainant’s buttocks, as opposed to her vagina. He contended that “evidence that casts doubt on the plausibility of licking the buttocks applied with equal force to the counts relating to the licking of the vagina”. The appellant’s submitted that “no reasonable jury who applied their minds properly to the facts in this case could have arrived at the conclusion on counts 1-6”, and that these verdicts “fail the test of logic and reasonableness”.
The respondent’s submissions
The respondent submitted that there were several rational explanations for the jury’s verdict of not guilty on count 1. These included: (i) that the jury may have had doubts as to whether consent was established beyond reasonable doubt, in view of the complainant’s statement in her EICI that she was initially “happy to let things progress … a bit more naturally”; and (ii) that the jury may have had doubts as to whether the appellant understood that the complainant did not consent to the appellant kissing her on the body (as opposed to her mouth). In this respect, the respondent noted the evidence that the complainant expressed concern to the appellant about COVID-19; that the complainant did not protest this act at the time; and that the appellant was intoxicated, so that he may not have fully understood what had been conveyed to him by the complainant about the exclusions of the ‘standard service’.
With respect to counts 3, 4 and 6, the respondent submitted that there were distinguishing features in the quality of the complainant’s evidence, and that when proper regard is had to those features, it is clear that the jury’s verdict was entirely rational, and reflected the jury having given careful attention to the performance of its task.
First, the respondent observed that there was an “inconsistency between the prosecution case and the counts on the indictment”. The respondent noted that in respect of count 4, the prosecution was required to prove the appellant inflicted force with an intention to engage in “sexual intercourse”, particularised by the licking of the complainant’s vagina. However, the prosecution’s case in the opening and closing address was that the appellant held the complainant down and licked her buttocks and anus. The respondent contended that the jury’s different verdicts on counts 4 and 5 “reflect a clear understanding of the elements of each offence which the prosecution was required to prove”.
Second, in respect of counts 3 and 6, the respondent observed that the jury may have held a doubt as to whether the appellant actually penetrated the complainant’s vagina. In particular, the respondent observed that the complainant repeatedly used the word ‘attempt’ when referring to the oral intercourse on her vagina. By way of contrast, the complainant’s evidence concerning count 6 was more consistent and detailed, given the appellant’s fixation on her buttocks and his licking of her buttocks and anus.
Determination
The jury found the appellant guilty of counts 2, 5 and 7 – 14.
It is clear from these verdicts that the jury must have considered the complainant to be a credible and reliable witness in respect of her evidence concerning these counts.
The jury found the appellant not guilty of the following counts: Count 1: Kissing on the cheek, neck and breasts (act of indecency without consent); Count 3: Licking and biting the vagina (sexual intercourse without consent); Count 4: Holding the complainant down whilst the appellant performed oral sex on the complainant’s anus (sexual intercourse in the third degree); and Count 6: Licking the complainant’s vagina whilst holding her neck (sexual intercourse without consent).
Contrary to the appellant’s submissions, each of the above verdicts may be explained consistently with the jury having concluded that the complainant was a credible and reliable witness.
Count 1 alleged an offence of committing an act of indecency without consent, that act being kissing the complainant on her cheek, the neck and the breasts. As counsel for the respondent submitted, it was well open to the jury to have doubts about the element of knowledge or recklessness as to consent in respect of this count. In particular, given (a) the complainant’s reference to COVID-19 and wanting to be “super-safe” when explaining the “no kissing rule”, (b) the complainant’s apparent acquiescence when the appellant started kissing her; and (c) the evidence as to the appellant’s intoxication, it was open to the jury to conclude that there was a reasonable doubt as to whether the appellant appreciated in the early stage of the encounter that kissing on all parts of the body, including on body parts other than the complainant’s mouth was not permitted. The jury’s verdict of not guilty to this count remains consistent with the jury having accepted, beyond reasonable doubt, that the complainant was a truthful and reliable witness.
Counts 3 and 6 alleged offences of sexual intercourse without consent. The written elements document provided to the jury during the summing up instructed the jury that, before the appellant could be convicted of either of those counts, they had to be satisfied beyond reasonable doubt that the appellant had “engaged in sexual intercourse” with the complainant by performing an act of “cunnilingus” on her.
The nature of the act alleged by the prosecution to have been performed by the appellant (licking/ biting/ of the complainant’s vagina) may have raised a doubt as to whether cunnilingus actually occurred (that is, whether the licking penetrated the complainant’s vagina, or whether it only related to the complainant’s external genitalia).
Any such doubt may have been exacerbated by the particular way in which the complainant described these acts. The complainant had told Dr Van Diemen that the accused performed “unprotected [oral] sex on [her]”, and said in her evidence that the appellant “was successful” in doing so. However, as the respondent noted, in her evidence, the complainant also described the appellant as “attempt[ing]” to perform oral intercourse on her vagina and said that she “think[s] that the appellant had licked her whilst holding her down. In view of this apparent uncertainty in parts of her evidence and the nature of the act alleged, it was open to the jury to give the accused the benefit of a reasonable doubt as to whether penetration had actually occurred. Again, this finding remains consistent with the jury having accepted, beyond reasonable doubt, that the complainant was a truthful and reliable witness.
Second ground of appeal: unreasonable verdict
Principles
The appellant’s submissions
The appellant submitted that the verdicts (other than count 14) were unreasonable. In so submitting, the appellant particularly relied upon the following matters.
First, the appellant argued that the complainant’s memory of the offences, in particular her sequencing of the events, was “evidently flawed”. He noted that as the complainant consented to certain acts, but not to others, the timing of when consent was withdrawn was a critical fact in issue.
Second, the appellant criticised the quality of various aspects of the complainant’s evidence. He submitted that the evidence as to whether the appellant had been told of the terms of the service was “weak and inconsistent”. He also noted that there were some aspects of the complainant’s evidence which she did not repeat. For example, the appellant noted that the complainant told Dr Van Diemen that the appellant had inserted his fingers into her mouth, but did not repeat that complaint in her evidence. He also noted that the complainant told Dr Van Diemen that the appellant’s mouth had made contact with her mouth, but in her evidence, the complainant said that the appellant’s face and lips had only brushed her cheek. Finally, the appellant noted that in her EICI, the complainant suggested that the appellant might have tried to insert his finger into her anus, but she did not repeat this allegation later in her evidence.
The appellant also made specific complaints about the complainant’s evidence concerning counts 7, 8, 9, and 12.
In respect of count 7, the appellant drew attention to the following answer that the complainant gave in cross-examination: Counsel: … You consented to [the appellant] using his hand to caress your buttocks, didn’t you? Complainant: Yes, that’s correct.
The appellant submitted that this answer must give rise to reasonable doubt on count 7 (which alleged that the appellant used his hands to caress the complainant’s buttocks and vagina). In support of this contention, the appellant also relied on the complainant’s evidence in her EICI that she was: … quite happy to let things progress… like gently, like you know… play with my boobs or, um, ah, something that didn’t make me feel like I was in danger of being hurt or uncomfortable… I was just going [to] let things like progress sort of a bit more naturally.
As to counts 8, 9 and 12, the appellant argued that the complainant gave inconsistent evidence on the issue of consent, contradicted herself as to whether the oral sex in counts 9 and 12 occurred with or without a condom, and was vague about the sequence in which these counts occurred. He also submitted that the complainant’s evidence about the repeated taking off of condoms did not accord with the objective evidence that only two condoms were found. The appellant further contended that the fact that the appellant was straddling the complainant did not by itself prove that the complainant’s consent was revoked in circumstances where the complainant had verbally offered oral sex shortly prior to this act.
The respondent’s submissions
The respondent submitted that despite the presence of some flaws, the complainant’s evidence was internally consistent as to the critical events and consistent with other evidence. The respondent noted the jury’s advantage in having made assessments of credibility and reliability by reference to seeing and hearing the evidence.
The respondent observed that whilst the complainant was not certain that she personally explained the terms of the standard service to the appellant before entering the room, she consistently maintained that it was her practice to explain the scope of services to a client and that she had told the appellant the terms of the service at or about the time they entered the Butterfly Suite.
The respondent contended that notwithstanding the complainant’s difficulties in providing a clear sequence of events, it was clear from each of her accounts that there was a definite shift in the encounter from about the time the appellant requested to look at the complainant’s buttocks, and that he began to exert force and engage in non-consensual sexual activities after that time.
In relation to count 7, the respondent noted that the complainant’s concession that she consented to the appellant caressing her buttocks in cross-examination was not specific to any point in time. The act constituting count 7 occurred after the shift in the encounter. The respondent further noted that in summing up, the trial judge identified count 7 as an allegation related to the caressing of both the complainant’s buttocks and vagina, and the jury was entitled to find the charge proven on this basis.
In respect of counts 8 and 9, the respondent contended the physical force applied by the appellant and the verbal warning the complainant gave to the appellant (“you can’t do that”) was clear evidence of the complainant’s lack of consent.
In relation to the appellant’s submission regarding the absence of injuries, the respondent observed that the requirement for corroboration of evidence of sexual assault complainants was abolished over ten years ago.
Determination
As outlined above, the determination of whether a verdict is unreasonable requires this Court to perform its own assessment of all of the evidence, paying due regard to the verdicts of the jury, who, as the “constitutional tribunal of fact”, had the benefit of seeing and hearing the evidence in the trial.
Other than noting that the absence of injuries was “consistent” with the appellant’s account, the appellant’s counsel did not rely on the appellant’s evidence in support of his contention that the guilty verdicts were unreasonable. Nonetheless, consistently with the statutory task conferred on the Court, we have considered that evidence. It does not give rise to a reasonable doubt. Various aspects of the appellant’s evidence lacked credibility, including in particular, the appellant’s explanation of why he punched the wall. It was well open to the jury to reject the appellant’s account for his conduct in the Butterfly Suite.
In accordance with the decision of the High Court in Liberato v The Queen [1985] HCA 66; 159 CLR 507, we have therefore put the appellant’s evidence aside and have considered the evidence in the prosecution case. Having closely considered the complainant’s evidence, we have concluded that it was well open to the jury to find that the complainant was a credible witness.
In assessing the complainant’s evidence, it must be borne in mind that “memory is not like a video tape which accurately records all details of a particular event in sequence”: AWK v Tasmania [2024] TASCCA 5 at [279]. As McHugh J observed in M v The Queen [1994] HCA 63; 181 CLR 487 at 534, It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts.
The inconsistencies relied upon by the appellant concern precisely the kind of discrepancies which may be expected of a witness who was doing her best to give an honest account of what had occurred. For example, the complainant’s uncertainty as whether the appellant inserted his fingers into her mouth, and whether the appellant’s mouth made contact with her lips (as opposed to her cheek and face) did not adversely affect her credibility. These were not the kind of central details which one would expect the complainant to have a clear memory of, particularly in circumstances where the complainant complained of much more serious conduct occurring at a proximate time to these acts. Similarly, it was well open to the jury to consider that the precise number of occasions when a condom was put on, or taken off, was not a matter that suggested that the complainant was not a credible witness.
Of course, it is necessary to bear in mind that in areas where “accuracy of recollection is vital”, discrepancies and inconsistencies in the witness’s account may make it impossible to accept the witness’s evidence, “no matter how honest he or she appears to be”: M v The Queen at 534.
Third ground of appeal: directions as to intoxication
As outlined above, there was evidence that the appellant was intoxicated. The complainant gave evidence that the appellant was drinking a Jack Daniels and Coke at the time that she approached him. She said that the appellant was “drunk enough to be able to have a joke, a conversation”, but was not “falling over on the ground” at this time. The complainant said that the appellant “seemed a lot more drunk” when he later came into the room with her. In his evidence, the appellant gave evidence that he had consumed beer and “two lines” of cocaine prior to attending Langtrees, and that he had had one alcoholic drink whilst at Langtrees. He did not consider himself to be significantly affected by alcohol or drugs.
Both counsel made reference to the appellant’s intoxication their addresses. In his opening address, the prosecutor suggested the appellant committed the offences “as a result of a combination of his intoxication and his frustration”. In his closing address, the prosecutor referred to the complainant’s evidence that the appellant was “drunk but functioning”. In his closing address, the appellant’s counsel submitted that the jury would accept the appellant’s evidence concerning intoxication. She submitted that all of the acts between the appellant and the complainant were consensual.
At the commencement of the second day of the trial, the trial judge had asked counsel (in the absence of the jury) about the directions to be given to the jury regarding intoxication. His Honour asked: His Honour: What effect does intoxication have on the accused’s mental state? For example, when the jury says ‘Did the accused know that [the complainant] was not consenting?, do they take into account [the appellant] as he was? Or do they pretend that he was sober?
The prosecutor correctly responded that intoxication “might be taken into account”. The trial judge then responded: Right, so I’ll tell the jury – this is what I’ll do unless someone tells me I’m going to be wrong. I’ll tell the jury that they should take into account [the appellant] as he was on the night… Not pretend that he was sober.
In his summing up, the trial judge instructed the jury consistently with what he had foreshadowed. As to the element of knowledge, his Honour instructed the jury as follows: You have to decide what [the appellant] actually knew in those circumstances. You have to decide, as [the appellant] was, that morning has the Crown proved beyond reasonable doubt that he actually knew that [the complainant] was not consenting.
When addressing proof of recklessness, his Honour continued: Now the second dot point is a bit different. The Crown can prove this second element – sorry, this second dot point if it proves that [the appellant] realised that it was possible that [the complainant] was not consenting and he went ahead anyway. So, by proving beyond reasonable doubt that [the appellant] realised there was a possibility that she was not consenting to being kissed on the cheek, neck and breasts but doing exactly that anyway, the Crown would prove that second dot point. Once more, it’s what [the appellant], himself, realised that night that is important here. Did he, as he was at the time, realise there was a possibility that the complainant was not consenting to being kissed on the cheek, neck and breasts but he kissed her anyway. If the Crown proves that beyond reasonable doubt then it’s proved the second dot point. And the third dot point is slightly different. If the Crown proves beyond reasonable doubt that he didn’t even think about whether she was consenting to being kissed ignoring completely the need for her to consent before he kissed her then the Crown has proved the third dot point. (emphasis added)
The respondent’s submissions
The respondent submitted that the onus was on the appellant to object to a direction during the trial if there was a misdirection sufficient to result in a miscarriage of justice that may have affected the verdict.
The respondent advanced three interrelated submissions by way of response to this ground of appeal. First, the respondent submitted that his Honour’s directions clearly conveyed that the appellant’s knowledge of lack of consent was based on what he himself knew or realised in the circumstances, and that his Honour noted the appellant had consumed alcohol at the time. The respondent submitted that there was no reasonable possibility the jury could have doubted what they were required to consider with regards to the appellant’s state of mind.
Second, the respondent noted that the appellant’s trial counsel had not contended that the appellant’s level of intoxication was such that it affected whether he held the requisite mental element. Third, the respondent submitted that, on the complainant’s evidence, there could be no doubt from later counts (2 onwards) that the appellant knew or was reckless as to her lack of consent given her verbal protestations and the appellant’s use of force.
Finally, the respondent contended that, even if this ground of appeal were otherwise established, the appeal should nonetheless be dismissed as no substantial miscarriage of justice actually occurred.
Determination Principles to be applied
No complaint was made about the trial judge’s directions on intoxication at trial. Nor was any request made for further directions. Accordingly, the appellant requires leave to argue this ground: r 5531 of the Court Procedure Rules.
Rule 5331 balances two important, competing considerations in the determination of appeals against conviction. First, it will often be the case that, upon reflection after the conclusion of a jury trial, it will be possible to posit ways in which the directions that were provided to the jury may be improved. However, it is not possible, nor appropriate, for a retrial to be ordered on every occasion where an appellate lawyer, or court, can conceive of a better direction on a given topic. On the other hand, the failure of trial counsel to take an objection should not stand in the way of the Court correcting a miscarriage of justice. Rule 5531 balances these competing considerations, by requiring that the Court grant leave before allowing an appeal concerning a direction, or failure to provide a direction, where no objection was taken in the proceedings below.
In this way, rule 5531 reflects the same underlying principles as rule 4 (now rule 4.15) of the Criminal Appeal Rules (NSW) see Marshall v The King [2023] ACTCA 11 at [22] – [26]; Astill v The King [2024] NSWCCA 118 at [20] – [22]; Cliff v The King [2023] NSWCCA 15 at [8]. These principles include: (i) The recognition that a criminal trial is adversarial, and that within this context, forensic decisions will be made as to whether evidence should be objected to, or directions should be given: Munro v The Queen [2014] ACTCA 11 at [130]. (ii) The recognition that trial counsel is best placed to assess what is in the best interests of his or her client, within the atmosphere of the trial: Munro v the Queen at [130]; Marsh v The Queen [2018] ACTCA 55 at [172]. The absence of objection is a cogent indication that counsel perceived that no injustice was occasioned to his or her client: Stevens v The Queen [2018] ACTCA 7 citing Munro at [18]; Germakian v R [2007] NSWCCA 373; 70 NSWLR 467 at [10]- [13]. (iii) The purpose of r 5531, which is to ensure that appeals are conducted on the “real issues” in the trial, and by reference to the “manner in which the trial was conducted”: Roach v R [2019] NSWCCA 160 at [195]; Wyper v The Queen [2017] ACTCA 59; 19 ACTLR 288 at 300 – 302 [59], [68]. Application
These principles have direct application in the present case. It may be accepted that the instruction proposed by the appellant (as derived from the directions given in Vunilagi) is more detailed than that which was given by the trial judge. However, it does not follow from that fact alone that a miscarriage of justice has resulted from failing to so direct the jury. Modern juries typically receive oral directions that now exceed half a day in duration. Care should be taken before requiring any further lengthening of these. A short but clear direction will be more effective than a longer, potentially confusing direction.
Orders
I certify that the preceding one hundred and thirty two [132] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal. Associate: Date: 21 October 2024
Hudson
DPP [2024] ACTCA 28
Appeal dismissed. The Court held that none of the three grounds of appeal was established ([132]).
The appellant then tried to get on top of the complainant and kiss her. The complainant turned her head to avoid the kiss, and the appellant’s lips brushed against her cheek. He began kissing her neck, then moved down and kissed her breasts (count 1: Not guilty). The complainant said that she tried to climb back on top of the appellant to “regain – control of the situation” and began masturbating him. The complainant said, “I didn’t stop him there” because “he’s getting aroused … and it wasn’t … bothering me”. (On the first telling of events to police, the complainant indicated that the appellant attempted to kiss her and she dodged away before she commenced oral sex upon him. She subsequently clarified that the appellant attempted to kiss her on the mouth after she performed oral sex on him.)
Later in the EICI, the complainant stated that after the appellant kissed her chest, he started to “go down towards [her] vagina … wanting to give [her] oral sex” and she “tried to roll him back over then onto his back”. She stated he wasn’t forcing her at that point.
The appellant asked the complainant to turn over so he could look at her buttocks, which she did. At this stage, he removed the condom and began to touch himself. The appellant started caressing her buttocks and touching her vagina. She redirected his hands. She later stated “I forgot some things that he did to me … before I just said that he, ah, had me, um, lay on my front, um and forced himself, like he was licking my vagina (count 3: Not guilty), um, and my – my bum (count 2: Guilty), um, and sort of biting my vagina while licking it and spanking me”.
In response to further questions, the complainant expanded on the above, stating the appellant told her he wanted to look at and lick her buttocks. She told the appellant that she “didn’t want him to”. The appellant ignored her. Whilst licking her, he asked “well doesn’t that feel good?”, to which the complainant replied “no, not really”. The appellant then started pushing her down by the back of her neck (count 4: Not guilty), while he “continue[d]” to lick her vagina (count 6: Not guilty) and anus (count 5: Guilty). The complainant said that after he first licked her “bum”, she tried to roll over and said that she “didn’t want him to do it”. In response, the appellant held the complainant down by her neck and back of head so that he could continue. She tried to push back against him. The complainant said “he was licking my bum … and I was resisting … and I think he just got frustrated because he still wasn’t getting an erection then”.
She stated “when he went to holding the back of my neck … to then putting his forearm to push me down, he then couldn’t reach my bum with his face or his mouth … so then he used his left hand…so then caressed my bum and my vagina” (count 7: Guilty). The complainant attempted to redirect his hand. The complainant thought the appellant might also have tried to insert a finger into her anus (uncharged).
The appellant got on top of the complainant and straddled her. The complainant’s arms were pinned under the appellant’s legs. Whilst doing this, the appellant told the complainant he wanted to “face fuck” her (count 8: Guilty). At some point the complainant put a condom back on the appellant. When the complainant first described this event, she stated that she told the appellant “I could maybe give you … a blowjob”. The appellant then “forced” his penis into the complainant’s mouth (count 9: Guilty). At this time, the appellant had the complainant’s arms pinned down under his legs so that the complainant could not move. She said to him “you can’t do that”, and told him they would have to end the booking because he was crossing her boundaries. Later in the interview, she stated “he’s tried to force his penis in my mouth multiple times. When it actually was in my mouth it was with a condom”.
The appellant apologised. However, he then grabbed the complainant’s face, forcing eye contact, and pushed her down into the bed. He called her a “bitch” and spat on her face (transfer charge 2). The complainant suggested the appellant “cool down” by having a shower or another drink. In response, the appellant slapped the complainant across the face (transfer charge 3). (The complainant initially stated she did not know when the appellant slapped her but later said that it occurred at this time).
The appellant held the complainant down with his forearm, pushing with pressure on her windpipes (count 10: Guilty). Because of the way the appellant was holding her, the complainant “couldn’t really breathe” and her vision went blurry. To placate the appellant, the complainant “suggested that I maybe like give him a bit more of a blowjob”. The complainant turned her head and felt a condom under the pillow. She grabbed the condom and put it into her mouth. The appellant stopped choking her. The appellant forced his penis into her mouth again (count 11: Guilty). The complainant then “attempt[ed] to give him a blow job”.
The appellant attempted to penetrate the complainant’s vagina without a condom but could not as he was not erect (count 12: Guilty). At this point, the appellant was still pushing her down, putting pressure on her chest and neck. She stated that “he had also at certain points in the booking tried to put his soft penis in my vagina. Um, this was both with and without a condom”.
At or about this time, the timer on the complainant’s phone went off. The appellant continued to attempt to vaginally penetrate her. The appellant then digitally penetrated the complainant’s vagina whilst kneeling on her body. She told him to stop (count 13: Guilty). The complainant said that the penetration was painful and she felt the appellant’s nails scratching her. (The complainant initially said that she could not recall when exactly in the booking the appellant digitally penetrated her, but she later explained that he penetrated her with his fingers after he couldn’t “get his penis inside of [her]”.)
The complainant told the appellant it was time to leave. The appellant became angry. The appellant took his hand off her throat and tried to turn the timer off her phone. She kicked the appellant in the abdomen, which managed to get him off her. She knocked over the phone, alerting reception that she was in distress. The appellant went off the bed and motioned to punch her but stopped himself before he hit her (transfer charge 4). He then punched the wall twice, making a hole in the wall (count 14: Guilty). He told the complainant he should have punched her instead. (On the first telling of events to police, the complainant said after the timer went off, the appellant continued to hold her down and she asked him to leave, at which point he moved off the bed and punched the wall).
The complainant heard a knock and went to the door. Another employee of the brothel came in and yelled at the appellant. She asked the complainant if the appellant had hurt her and the complainant nodded. The complainant left to the locker room. The manager came in and asked the complainant again if the appellant had hurt her, and if police needed to be called, and the complainant nodded. The other employee then called the police. The complainant had a shower.
In her EICI, the complainant also made a timeline of post-it-notes to clarify the sequence of events that occurred on the night. These were ordered by her as follows: initial ‘rub down’ hand job attempted to give blowjob but not respond physically directed head down onto penis with hand he said sorry moved back next to him. hand job Attemted (sic) to kiss me kissing chest attempted to give oral sex on me licking bum I tried to roll over to stop him held me down so he could continue. back of neck rolled him over cont hand job took condom off. I rolled over so he could look at my bum while he touched straddled + forced oral with condom gained control. Warning (Bitch), spat on face the grabbed my face Suggest cool down/drink choking w right hand. attempted oral without condom. timer going off. attempt penetration fingering he turned to stop timer I kicked him off Chief examination
In examination-in-chief, the complainant clarified the following aspects of her evidence: (a) The complainant said that she was present when the terms of the standard package was first explained to the appellant by her co-worker. She said that she told the appellant the exact terms of the package at the counter when he came to the counter with her to pay for the service. (b) The complainant stated that she explained to the appellant in greater detail what was included in the service at an area near the ATM, which was just out of view of the CCTV. (c) When asked about the sequence of counts 2-6, the complainant reordered the timeline of post-it-notes she previously created with police. She said that the correct sequence was: (1) the appellant attempted to give oral sex on her vagina and succeeded in that; (2) she then rolled over and tried to stop him; and (3) he licked her buttocks and anus. He then held her down and continued to perform oral sex on her anus. (d) In relation to count 11, the complainant stated the appellant was choking her while he attempted to put his penis into her mouth without a condom. She stated that the appellant’s penis entered her mouth “for a moment” with the condom off, but she was able to remove it. (e) The complainant stated that when the appellant attempted penile penetration, he was not wearing a condom.
The complainant was examined by Forensic Medical Doctor Van Diemen at approximately 6:00am on 26 February 2021. Dr Van Diemen noted redness to the back of the complainant’s neck, a linear abrasion on the outside of her genitalia, and a linear abrasion on the outside of her anus. She noted the abrasion to her labia minora and perineal area were consistent with being caused by a fingernail. She did not observe any bruising to the complainant nor any redness to her upper chest. Dr Van Diemen accepted the marks on the complainant’s neck could be a result of different causes. Police tested a swab taken by Dr Van Diemen of the complainant’s face which had a very high likelihood of matching the appellant’s DNA profile.
Dr Van Diemen also gave evidence as to the complainant’s account of what had occurred. She said that the complainant told her that the appellant tried to kiss her and “do other things like oral sex on [her]”, and when she tried to get him to stop he held her down. The complainant also told her that the appellant tried to put his penis in her mouth without a condom. She reported being grabbed or held on her upper chest, arms and on the back of her neck. She also reported he slapped her, strangled her, bit her on her buttocks and vagina, penetrated her vagina with his finger/s, penetrated her mouth with his penis, penetrated her mouth with his fingers/s, and that his mouth made contact with her vagina, anus, face, neck and breasts. The appellant’s evidence
The appellant gave evidence that he had consumed approximately five or six drinks of alcohol, as well as cocaine, before attending Langtrees with his friend. He said that whilst he was at the bar at Langtrees, he and his friend were approached by the complainant and a co-worker. The appellant said that he told the women that he was not interested in their services as he was “just the driver”. He said that he also explained that he did not think he could get an erection as he had taken cocaine. After some conversation, he agreed to book a service but “solely for a show”. The appellant maintained that he was not told what was included in the standard service.
The appellant and complainant went to the Butterfly Suite. The complainant was breathing on his neck and there was light touching. The appellant showered. When he re-entered the room, the complainant began masturbating the appellant. He told her “it wasn’t going to work”. The appellant maintained that this did not anger him. The complainant began performing oral sex on him. She then asked him to lie on the bed. The complainant got on top of the appellant and began grinding on him. She breathed in his ear. The appellant asked if he could play with her breasts and she agreed. He asked her to turn around, which she did, positioning her genitals near his face. He began to masturbate himself. He asked if he could put a condom on, which he did. While the complainant was laying on her side, he tried to have sexual intercourse with her but was unsuccessful.
The appellant got up and asked the complainant “for a show”. He said that the complainant started playing with her breasts, vagina and buttocks, while he masturbated. The appellant asked to see the complainant’s “bum hole”. The complainant told the appellant to show her respect. He said “I am showing you respect, aren’t you a slut paid to do a job?” The complainant was offended and told the appellant he would be “sorted out”. The appellant said that he was afraid when the complainant said this.
The complainant then leaned over and grabbed the phone. She said something short. She then grabbed her clothes and belongings, told him to wait and walked out of the room. The appellant went to leave but felt two people were closing the door shut on him. The appellant punched the wall. He said he was fearful “bikies” or other males were coming to harm him at the complainant’s direction.
The appellant stated he did not think he was wearing a condom one of the times the complainant was performing oral sex on him. He also stated he did not hear a timer go off. The appellant said that he caressed the complainant’s buttocks while the complainant was sitting on his face.
The appellant denied choking the complainant or exerting pressure on the complainant’s upper arms. He also denied digitally penetrating the complainant, or licking or biting the complainant’s vagina or “butt cheeks”. He was adamant that the complainant never told him to stop and maintained that he treated the complainant with respect. CCTV Footage
The CCTV footage adduced at trial showed that neither the appellant nor the complainant were present at the counter when the service with the complainant was purchased by the appellant’s friend on his behalf.
This distinction explains the differing verdicts between counts 2 and 3; and counts 5 and 6. Counts 2 and 5 alleged acts of indecency without consent (specifically, the licking of the complainant’s buttocks). Unlike counts 3 and 6, it was not necessary for the prosecution to demonstrate that there had been any actual penetration for these counts to be proved beyond reasonable doubt. Consistently with the complainant’s evidence that the accused licked her buttocks, the jury returned guilty verdicts for each of these counts.
As to count 4, although the particulars document described the act alleged as holding the complainant by the back of the neck and resuming licking her buttocks and vagina, the written elements document which was provided to the jury during the summing up instructed the jury that they could only find this count proved if they were satisfied beyond reasonable doubt that, whilst the appellant was holding the complainant down, he “intended to perform an act of cunnilingus upon her”.
In this respect, it may be noted that, after hearing the summing up, and being provided with the written elements document, the jury asked for a definition of “cunnilingus”, in particular, whether it included the vagina and the anus, or just the vagina. After consultation with counsel, the trial judge instructed the jury that cunnilingus “only relates to the female genitalia, not to the anus”. In other words, the jury were instructed that if they had a reasonable doubt as to whether the accused intended to lick the complainant’s vagina when holding her down (as opposed to licking her anus or the external part of her genitalia), then they were bound to return a verdict of not guilty for this count. The jury returned its verdicts less than two hours after receiving this instruction.
It is clear from this context that a rational explanation for the verdict of not guilty with respect to count 4 was that the jury gave the appellant the benefit of a reasonable doubt as to his intention when he held her by the back of the neck, and in particular whether, when doing so, he intended to perform an act of cunnilingus. Again, this verdict is entirely consistent with the jury having otherwise accepted, beyond reasonable doubt, that the complainant was a truthful and reliable witness.
Contrary to the appellant’s submissions, the not guilty verdicts do not imply that the jury had a reasonable doubt as to the complainant’s credibility and/or reliability. The verdicts of guilty and not guilty are all entirely consistent with the jury having accepted the complainant as an honest and credible witness, but having given the appellant the benefit of the doubt in respect of elements of specified counts where, even accepting the complainant’s evidence, a degree of uncertainty may have remained. Accordingly, this ground of appeal must be dismissed.
Finally, as to count 10 (choking) and other allegations involving physical assault, the appellant noted that as the complainant did not sustain any “injuries consistent with those allegations” (such as bruising or redness). The appellant submitted that this evidence was “at its highest neutral, but [was] otherwise consistent with the appellant’s denials of engaging in the physical conduct alleged”.
In the present case, the respondent properly accepted that the complainant had difficulty recalling the precise sequencing of the acts alleged. The complainant herself explained that “a lot of [her memory] is blurred together”, and that she could not “piece together everything in a sort of streamlined like timeline”.
It may be accepted that the sequencing of the events had potential significance in the trial. The incident commenced as a consensual sexual encounter. It is clear from the complainant’s evidence that consent was withdrawn at a point in that encounter. Questions of consent and the appellant’s knowledge of lack of consent may be affected by whether a particular act (such as, for example, attempted fellatio) occurred before or after the point. For this reason, we have given careful attention to whether the complainant’s difficulties in recalling the sequence of the events were such that the jury should have had a reasonable doubt as to any count on the indictment.
On a careful examination of the evidence, we are satisfied that the difficulties that the complainant had in recalling the exact sequence of events are not such as to give rise to a reasonable doubt as to the appellant’s guilt on any count. This is so for two reasons.
First, the difficulties that the complainant had in recalling the precise sequence of events were relatively limited in scope. For example, in her first recount of the allegations to police, the complainant stated the appellant kissed her (count 1) prior to her performing consensual oral sex on the appellant, whereas thereafter she consistently recalled that it occurred after. This difference is not of any significance.
Similarly, the complainant did not initially describe the appellant licking her buttocks and vagina (counts 2-6) in her first explanation of what had occurred in the EICI. However, these acts were not as salient as the more violent events that occurred later in the encounter. The complainant was endeavouring, in a single answer to a broad open question, to recount each of the acts that she had been subjected to that evening. It is not surprising that the complainant’s attention was focussed on the appellant’s later acts. Later in the same EICI, the complainant clarified when counts 2-6 occurred. Whilst there are minor discrepancies in the complainant’s sequencing, such as whether the performance of oral sex on her vagina came before or after rolling over, at no point did she describe counts 2-6 as occurring during a different part of the encounter.
Whilst the complainant indicated some uncertainty in pinpointing the precise timing of counts 8 and 9 (straddled chest and forced oral sex), 12 (attempted penetration of vagina with penis) and 13 (digital penetration), she consistently placed these counts as occurring after the point in the encounter where the appellant requested to look at her buttocks. The complainant repeatedly stated that counts 8-9 happened after the appellant touched her buttocks and vagina (count 7). The complainant said that count 12 occurred at the end of the booking, around the time the timer went off, and that count 13 occurred after the appellant failed to penetrate her with his penis. This was after a number of non-consensual acts had taken place.
In other words, the ‘blurred’ memory that the complainant described was not of a jumble of unsequenced acts. Rather, it was a blurring around the edges of those acts.
Second, each count that was the subject of a guilty verdict concerned an act where the complainant’s lack of consent was apparent from the complainant’s account of the circumstances surrounding the act itself. In other words, the prosecution case did not strictly depend on the sequence of the events recalled by the complainant. In particular, (a) The complainant gave evidence that prior to the time of the commission of count 2 (act of indecency without consent), she had told the appellant “please don’t do that” when he gripped her neck (whilst she was performing oral sex on him). The act alleged in this count was licking the complainant’s anus. It was clear that the complainant did not consent to this act. (b) The complainant gave evidence that, at the time of the commission of count 5 (act of indecency without consent), she tried to get up and move away but the appellant held her down [AB 524]. She was “wriggling” to get away. She told him to “stop” and that she “didn’t want him to do it”. (c) The complainant gave evidence that prior to the time of the commission of count 7 (act of indecency without consent), she was “resisting” the appellant but could not get him off her. (d) The complainant gave evidence that during count 8 (sexual assault in the third degree), the appellant was sitting on the complainant’s chest and said “I want to face fuck you”. Her hands were under his legs, which precluded the full movement of her arms. At this time, the appellant was “aggressive”. (e) The complainant gave evidence that at the time of the commission of count 9 (sexual intercourse without consent), the appellant had pinned the complainant’s arms under his legs, so that she could not move. The complainant described the appellant as having “forced” his penis into her mouth. (f) The complainant gave evidence that prior to the time of the commission of count 11 (sexual intercourse without consent), the appellant was applying pressure on her windpipe, which affected her ability to breathe. (g) The alleged act that was count 10 (choke/suffocate/strangle) was violent and inconsistent with any reasonable belief as to consent. Further, at the time of the commission of count 10, the appellant spat in the complainant’s face and called her a “bitch”. (h) The complainant gave evidence that at the time of count 12 (attempt sexual intercourse without consent), the appellant was “still … pushing [her] down”. (i) The complainant gave evidence that at the time of the commission of count 13 (sexual intercourse without consent) the appellant was holding her down and she couldn’t say anything. She could feel his nails scratching her.
As noted above, the appellant accepts the reasonableness of the jury’s verdict on count 14 (property damage). That concession was properly made. The appellant himself admitted that he caused damage to the Butterfly Suite when he punched the wall.
The remainder of the complaints advanced by the appellant under this ground of appeal may be briefly dismissed. Contrary to the appellant’s submissions, the complainant’s description of how count 5 occurred did not “defy common sense”. The complainant explained that the appellant was using his forearm to push on the complainant’s back and shoulders. There was nothing improbable about this complaint. Nor did the complainant’s acknowledgement that she “consented” to the appellant using his hand to caress her buttocks give rise to a reasonable doubt concerning count 7. As the respondent submitted, there was ambiguity in the question asked, in that the question was not specifically addressed to when count 7 was said to have occurred. It was well open to the jury to prefer the complainant’s specific evidence concerning her lack of consent to the events that were the subject of count 7.
Finally, the medical evidence did not in any way detract from the complainant’s evidence. Whilst the injuries recorded by Dr Van Diemen (including the red marks on the complainant’s neck and the injuries to the complainant’s genitalia) could be explained by causes other than the assault, they were certainly not inconsistent with the account given by the complainant. Further, it is an error to suggest that a complainant’s evidence must be supported by independent corroboration: Garay v The Queen (No 3) [2023] ACTCA 2 at [90] – [92]; Incandela v The Queen [2023] ACTCA 41 at [26] – [29].
The appellant has not established that the jury should have had a reasonable doubt in respect of any of the offences for which the appellant was found guilty. It follows that this ground of appeal must be dismissed.
After the lunch break which followed shortly after these directions, the jury sent the trial judge a note which asked the following question: The judge made a reference ‘as he was on the night’, what is meant by that please?
In the absence of the jury, the trial judge informed counsel that he proposed to explain “intoxication, tiredness, level of education, anything personal to him”. His Honour asked counsel if anything else should be referred to. No further directions were sought by either counsel at this time.
The trial judge then instructed the jury as follows: Well what I mean to say is it is the particular person, [the appellant] in a particular situation he was in. So we know he’d had a few drinks, so you take into account – that you don’t pretend he was sober, stone cold sober because he’d had a few drinks. So when you look at him – that means as he was on the night. That’s what you take into account when I say, ‘as he was on the night’. If he was tired, I don’t know. That’s how he was on the night. So its what he – the person he was and if I can call it the mind he had at the time he was in the Butterfly Suite. That you take into account in deciding what he knew, what he realised, that sort of thing, okay? Thank you for that note, that was helpful. The appellant’s submissions
In the third ground of appeal, the appellant contends that the trial judge’s directions (including the answer given in response to the jury’s question) did not adequately instruct the jury as to how to take into account the appellant’s intoxication in their consideration of the appellant’s recklessness as to consent, particularly concerning whether the appellant understood the scope of the conditions of the standard package, and whether he comprehended the complainant’s withdrawal of consent. The appellant contended that it was necessary “for the judge to give a detailed and explicit direction” regarding the relevance of the appellant’s state of intoxication to his recklessness as to consent.
The appellant referred to the directions as to intoxication given by Murrell CJ in the first-instance judge alone trial in R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) [2020] ACTSC 274 at [76] – [80] (affirmed in Vunilagi v The Queen [2021] ACTCA 12 at [130]). Drawing upon that direction, the appellant submitted that the trial judge should have directed the jury as follows: In considering whether the prosecution has proved that the accused realised that it was possible that [the complainant] was not consenting, or did not even think about whether she was, you must consider the effect upon the accused of the alcohol that he had consumed. His intoxication is relevant when deciding whether he was reckless as to the complainant’s consent. In some circumstances, an intoxicated person may act without forming a particular intent. On the other hand, although considerably affected by alcohol, a person may commit an act with a particular state of mind. The fact that they would have thought differently if they had been sober does not necessarily mean that they lacked a particular state of mind when intoxicated. If lack of consent is established the prosecution must prove recklessness beyond reasonable doubt, taking into account the state of intoxication of the relevant accused.
The appellant acknowledged that this direction was not sought at trial, and that in these circumstances, he required leave to advance this ground of appeal under r 5531 of the Court Procedure Rules 2006 (ACT). He submitted that the trial judge’s directions amounted to a departure from a trial according to law that is sufficient to justify a grant of leave under r 5331, as there was a ‘real chance’ the failure to properly direct the jury affected the jury’s verdicts.
The direction proposed by the appellant contains a number of components which were not apposite to the issues in the trial. For example, in the context of the evidence and the issues in the present trial, the middle paragraph proposed by the appellant is unnecessary, and may in fact have been apt to mislead. The middle paragraph is as follows: In some circumstances, an intoxicated person may act without forming a particular intent. On the other hand, although considerably affected by alcohol, a person may commit an act with a particular state of mind. The fact that they would have thought differently if they had been sober does not necessarily mean that they lacked a particular state of mind when intoxicated.
There was no suggestion by either party nor was there any evidentiary foundation for a suggestion that the appellant had acted without forming any particular intent. The jury may have been distracted by a direction that invited them to consider a scenario which lacked any foundation in the evidence.
The remaining two paragraphs of the proposed direction are as follows: In considering whether the prosecution has proved that the accused realised that it was possible that [the complainant] was not consenting, or did not even think about whether she was, you must consider the effect upon the accused of the alcohol that he had consumed. His intoxication is relevant when deciding whether he was reckless as to the complainant’s consent. … If lack of consent is established the prosecution must prove recklessness beyond reasonable doubt, taking into account the state of intoxication of the relevant accused.
These two paragraphs would instruct a jury that they must consider the accused’s intoxication when considering whether knowledge or recklessness is established. That aspect of the proposed direction was made clear by the trial judge, particularly in answer the jury’s question. The trial judge made express reference to the evidence of intoxication, and told the jury that they needed to take that evidence into account, by assessing the accused “as he was on the night”.
It is acknowledged that the trial judge did not expressly address the third form of recklessness (that is, whether the appellant had not turned his mind to the question of consent for any particular act) when instructing the jury as to the effect of intoxication on recklessness. However, it was clear from the instructions given that the jury was to take the accused’s intoxication into account when considering whether knowledge or recklessness was proved beyond reasonable doubt.
Further, emphasising the relevance of intoxication to the third form of recklessness would likely have worked against the appellant. If the appellant had, as a result of his intoxication, not turned his mind to the question of consent for any particular act, it would follow that recklessness would be established in respect of that particular count. The appellant did not lose a reasonable chance of an acquittal as a result of the trial judge failing to directly instruct the jury on intoxication in regard to the third form of recklessness.
In summary, the jury were unequivocally instructed that they must take the appellant’s intoxication into account in determining whether the element of knowledge/ recklessness as to consent was proved. The jury could not have been left in any doubt as to this requirement. The appellant has not demonstrated that a miscarriage of justice has arisen from the directions that the trial judge provided as to intoxication. Accordingly, this ground of appeal must be dismissed.