Krojs v R

The applicant's brother's evidence

1. The applicant's brother gave evidence. He said that the door of the bedroom which was the applicant's at the time of the incident could be closed but would not remain shut and could not be locked.
2. The applicant's brother said that, on the evening of the State of Origin match, the complainant asked him how old he was and he asked her, in return, how old she was. She told him that she was 16 and he believed her. The applicant's brother said: "She looked young, yes. Don't - don't get me wrong. She did look young."
3. The applicant's brother said that while they were watching the State of Origin match, only his father drank alcohol. He and the applicant drank Coca-Cola and the complainant had a glass of Coca-Cola and a glass of milk.
4. After the match, the applicant's brother went to bed. He did not hear anything coming from his brother's bedroom that night. He said that if anyone was calling out, he would "most definitely" have heard it. He explained that this was: "Because we share the wall to the bathroom and plus the corridor is so narrow and small, you can hear stuff from the dining room. It's such a compact house, you can hear noise throughout the whole house from every bedroom."
5. The morning after the match, the applicant's father left for work at 6.40am, as he always did. The applicant's brother got up and got dressed for school. He went to the kitchen to make coffee. At about that time, the complainant came out of the applicant's room and sat down on the lounge in the sitting room. The applicant's brother turned on the television news and drank his coffee while he was talking to the complainant, who "seemed completely fine". They discussed a television show called Pretty Little Liars. He left for school at 7am.

The verdicts

1. The jury retired to consider its verdicts at 2.59pm on 15 February 2021. At 2.46pm on 18 February 2021, the jury returned a not guilty verdict in respect of count 1 and a guilty verdict in respect of count 2.

Psychiatric assessment after the trial and before the sentence proceedings

1. On 24 March 2021, Dr Furst re-examined the applicant for the purposes of the sentence hearing. He reported, of present relevance (to ground 2): "Mr Krojs presented as a 25-year-old Aboriginal male who was noticeably calmer, was more engaging, was more reactive and was more conversational than he had been 12 months earlier. His main concerns at the time of recent assessment were anxieties/worries about the impact of his upcoming sentencing hearing on himself and his family, i.e. Zoe with her mental health issues struggling to cope without him and the welfare of their two young daughters. He said, 'I'm scared that if I go in [receives a custodial sentence] I won't see my kids again. I worked so hard to turn my life around. I was a stupid kid. I worked hard to stop this. I want to have something and make something of my life.'"

The grounds of appeal against conviction

1. Mr Nash, who appeared on behalf of the applicant, contended that leave was not required for any of the grounds of appeal against conviction. He submitted, in particular, that the question whether the tendency evidence was admissible was a question of law alone within the meaning of s 5 of the Criminal Appeal Act 1912 (NSW) and therefore did not require leave.
2. Mr Nash referred to AJ v R [2022] NSWCCA 136 at [88] where Beech-Jones CJ at CL held that a ruling that evidence is admissible, when it is inadmissible is a "wrong decision [on a] question of law" within the meaning of s 6(1) of the Criminal Appeal Act.
3. It is important to appreciate the difference between a "question of law" and a "question of law alone".
4. This Court considered the distinction between a ground that involves a mixed question of fact and law on the one hand and a ground that involves a question of law alone in R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199. The Court's consideration illustrates what distinguishes a question of law alone from other questions.
5. Relevantly, the grounds of appeal in R v PL were: "2. Whether his Honour erred in applying the following principles applicable to the directions of verdicts of acquittal: (a) That a circumstance cannot be rejected because it alone cannot lead to an inference of guilt. (b) That the prosecution does not have to exclude a hypothesis consistent with innocence. 3. Whether his Honour erred in finding that it was necessary for the Crown, in order to establish that there was a case to answer, to identify a particular act on the part of the accused bringing about the injury which caused the death of the deceased."
6. Ground 2 was held to involve a mixed question of fact and law. Spigelman CJ (McClellan CJ at CL and R A Hulme J agreeing) said at [26]: "Even if his Honour erred in applying the correctly stated principle, that process necessarily encompassed an assessment of the facts. The process of 'applying' a legal principle to the facts of a case involves a mixed question of fact and law …"
7. By contrast, ground 3 was held to involve a question of law alone. Spigelman CJ said at [27]: "… [T]he ground identifies, most clearly by the word 'necessary', a legal requirement of any Crown case of homicide. That, in my opinion, involves 'a question of law alone'. This states a legal proposition which is a distinct and separate step in the reasoning process. In the same way as the interpretation of a statutory provision considered in JS. This legal proposition is logically anterior to its application to the facts of a particular case."
8. R v PL was followed and applied by Beech-Jones CJ at CL (Walton and Price JJ agreeing) in Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [14]. While, as has been held in Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83 at [82] (Hamill J, Brereton and McCallum JJA agreeing), whether evidence is admissible is a question of law, it is not, on the basis of the reasoning in R v PL, a question of law alone.
9. A ruling on admissibility of evidence over objection involves, where a legal principle is involved, a question of law, but the question is not one of law alone. The other two grounds are in a similar category in that they involve questions of law for the purposes of s 6 of the Criminal Appeal Act but not questions of law alone for the purposes of s 5.
10. I regard each of the grounds raised as depending on the facts of the case. None is logically anterior to them. Thus, I consider leave to be required in respect of each of these. As I am satisfied that, for the reasons which follow, leave ought be granted in respect of each of the grounds, I do not consider it to be necessary to address in any further detail whether each of the grounds requires leave or amounts to a question of law alone.

Ground 1: alleged inadmissibility of tendency evidence

1. Mr Nash contended that Exhibit C was inadmissible on the following grounds: 1. it did not prove a relevant tendency; and 2. it lacked substantial probative value.
2. Thus, Mr Nash submitted that the evidence did not fall within s 97(1) because the evidence was not capable of proving that the applicant has or had a tendency to act in a particular way, or to have a particular state of mind. Further, he submitted that the evidence by itself or with other evidence adduced by the Crown, did not have "significant probative value".
3. Mr Nash contended that Exhibit C did not support the relevant tendency because it lacked any material to support the tendency in (b)(i) of the notice (tendency to act on his sexual interest in female children under the age of 16 years who he knows to be under the age of 16 years) and, further, that it was not actually a tendency. He submitted that a single prior example of conduct could not constitute a tendency.
4. Before evidence is admissible under s 97(1) to prove that the applicant has or had a tendency to act in a particular way, or to have a particular state of mind, the court is required to be satisfied that the evidence will, by itself or taken with other evidence adduced by the party seeking to adduce it, have "significant probative value". Section 101(2) provides that, in a criminal proceeding, tendency evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the defendant. The present appeal turns on s 97(1) rather than s 101(2).
5. In Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288, this Court (Beazley P, Hall and Wilson JJ) held, at [86], that it was not necessary for evidence to be admissible as tendency evidence, that the conduct be repeated so as to constitute a pattern. Rather, a single incident could have significant probative value if it was capable of providing foundation for the inference to be drawn that the accused has acted in a particular way on an occasion prior to that on which the offence charged occurred. I understood Mr Nash to accept that the evidence in Exhibit C was probative on the question whether the applicant had had sexual intercourse with the complainant (being the element common to the offence in count 1 and the offence in count 2). I did not understand it to be suggested by the Crown that the tendency evidence was relevant to the other two elements of count 1 (whether the complainant consented and the applicant's state of mind as to whether the complainant consented).
6. The meaning of the word "significant" in the context of the expression "significant probative value" for the purposes of s 97 is to be answered by reference to what this Court (Simpson J) said in DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [180]: "The foundation provided by the tendency evidence may be strong or weak, depending upon the nature of the evidence. The only qualification is that, to be admissible, its probative value must not be so weak as to be bereft of 'significance'."
7. I consider that the agreed facts in Exhibit C are sufficient to support the tendency alleged, including (b)(i), as the applicant did befriend S and they did develop a relationship and did have sexual intercourse when S had, to the applicant's knowledge, just turned 15. I consider there to be a relevant tendency in that not every 18 (in the case of the intercourse with S) or 19 year old male has a sexual interest in under-age (younger than 16) females. The tendency is not based on the age difference alone but also on the youth, immaturity and incapacity to consent, of the females.
8. Without such evidence, it might be difficult for the jury to believe that the applicant, aged 19, could have had a sexual interest in the complainant, aged 12 and act on it, that being improbable as a matter of human experience. However, the fact that he did have a sexual interest in S when she was 14 and acted on it by having sexual intercourse with her shortly after she turned 15 makes it more likely that the applicant had a sexual interest in the complainant and acted on it by having sexual intercourse with her when she was 12 and he was 19. The force of evidence such as this as tendency evidence was explained in Hughes v The Queen at [60] (Kiefel CJ, Bell, Keane and Edelman JJ) in the following terms: "The force of the tendency evidence as significantly probative of the appellant's guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience." [Emphasis added.]
9. I regard the probative value of Exhibit C as significant. I am not satisfied that ground 1 has been made out.

Ground 2: alleged misconduct of prosecutor

1. There are three aspects to the applicant's complaint about the prosecutor: his questioning of Crown witnesses; his cross-examination of the applicant; and the content of his final address.

The prosecutor's use of "we" and "us" in the questioning of Crown witnesses and the applicant

1. Mr Nash submitted that the prosecutor's use of "we" and "us" in questioning Crown witnesses and cross-examining the applicant amounted to an improper attempt to "align himself with the jury". The examples relied on included the following: "Q. So are you telling us that you found out she was 16, why was her age relevant? A. Well, I didn't think it was relevant." and: "Q. Well, you're letting us know, then, what's the relevance of you telling us that she's 16 just a moment ago? A. Well, the relevance to that is you're saying that I'm letting a 12-year-old into my house, when I wouldn't have let a 12-year-old in my house." [Emphasis added.]

The cross-examination of the applicant

1. In substance, Mr Nash submitted that the prosecutor, knowing of the applicant's mental difficulties, having regard to the procedural history of the matter (summarised above), deliberately provoked the applicant to get him to become emotive, if not lose control, in front of the jury, with a view to using that conduct in his final address as a demonstration of how the applicant acted in the course of committing the alleged offence. Mr Nash relied on the following two examples in the cross-examination of the applicant.

Cross-examination of the applicant about his failure to contact KS when the complainant asked to stay the night

1. The first example related to the circumstance that the applicant did not contact KS when the complainant asked if he could stay the night at the applicant's home. Mr Nash relied on the following passage from the transcript: "Q. --but you just didn't contact him to tell him, 'Your girlfriend's run away and she's staying at my place for the night'? A. Well, it's not really - what can I say? I didn't tell him. I didn't think he needed to be told. I mean, you've got someone there saying 'I got kicked out of home, blah, blah, blah'. They're obviously in some kind of mood. Like, what are you going to do? I'm there as a support person. I'm not there to mediate their problems. I'm not there for them. I was there because she told me she had nowhere to go. And me being a person that's been kicked out on the fucking street and lived in the street, I couldn't have that. If someone gave my two daughters the opportunity I gave her, I would be forever grateful. Q. How old are your two daughters, though? A. Well, one of my daughters is now nearly five, and the newest one is two weeks and one day old. Q. Well, she's not going to run away from [home] now, is she? A. Well, no. Q. Well, let's be sensible about this. Now, can we have WILLIAMS: I object to that comment, your Honour. CROWN PROSECUTOR: Can we have exhibit A and show that to the witness. WILLIAMS: Your Honour, I object to that comment. HER HONOUR: Yes. All right. Well, the Crown Prosecutor is moving on."
2. Mr Nash submitted that it was unfair of the prosecutor to question the applicant in circumstances where the Crown had led evidence from KS that the complainant had called him on 17 June 2015 and told him that she was going to the applicant's place.

Cross-examination of the applicant about "kick[ing] out" the complainant on 18 June 2015

1. The second example relied on occurred during the cross-examination of the applicant as to why he "kicked out" the complainant on 18 June 2015. Mr Nash relied on the following: "Q. Whether she ran away or she was kicked out, she was on the street, right? A. Well, she rang me to obviously prevent that. Q. But you kicked her out? A. Because she lied to me. I'm not having a liar in my fucking house."
2. This exchange occurred in the context of the complainant having told the applicant that she could not live with her father and the applicant hearing the voice mail message which was left by the complainant's father when he was obviously distressed, worried about her and wanted her to come home. The applicant indicated in his evidence that he regarded her as having lied to him and gave this as the reason for making her leave his house on 18 June 2015.

Cross-examination of the applicant about his understanding of the complainant's age

1. The prosecutor cross-examined the applicant to the effect that he was seeking to emphasise that he believed that the complainant was 16 years old. Mr Nash submitted that the following question was unfair: "Q: You say that [KS] told you that she was 16?"
2. He submitted that it drew the jury's attention to the applicant's belief as to the complainant's age. Further, he contended that the words, "you say" implied that the truth of the applicant's account was in issue. Mr Nash submitted that it was inappropriate for the prosecutor to insinuate that the account was in issue in circumstances where KS had given evidence (in the Crown case) to the same effect (namely, that he had, when he visited the applicant with the complainant, told the applicant that the complainant was 16).
3. Secondly, Mr Nash complained about the following passage of the prosecutor's cross-examination of the applicant (after he had said that KS had told him that the complainant was 16): "Q. But did you ask her what her age was? A. No, I had no need to ask her. Q. And why did he feel the necessity to tell you she was 16, what was the context that gave rise to that? A. I don't know, yeah. Q. I mean, 16 just A. I mean, I'm not [KS]. Q. 16 happens to be the age of consent in New South Wales. You knew that, didn't you? A. Well, yeah, I do know that. Q. So are you telling us that you found out she was 16, why was her age relevant? A. Well, I didn't think it was relevant." [Emphasis added.]
4. Mr Nash submitted that the questioning was unfair for two reasons: first, because it sought insight into what was in KS's head ("why did he feel the necessity …?"); and, secondly, because it misrepresented KS's evidence that he had volunteered his knowledge of the age of the complainant to the applicant when he arrived at his house on a prior occasion.
5. Mr Nash also relied on the following portion of the cross-examination of the applicant: "Q. Why did you put yourself in the position of being alone with a young girl in your bedroom like this? A. At the time, I didn't think of it as an incident like that. The fact of the matter was to me, to my knowledge, she was 16. And regardless, I don't think that you need to sleep in the same room to have sex with somebody. Q. Well, you're letting us know, then, what's the relevance of you telling us that she's 16 just a moment ago? A. Well, the relevance to that is you're saying that I'm letting a 12-year-old into my house, when I wouldn't have let a 12-year-old in my house. Q. But you did let a 12-year-old in your house? A. Not to my knowledge, she was not 12. Q. Because you say she looked older - sorry. What are you saying? You've got‑‑ A. I'm saying [KS] told me her age and because of the way she looks - especially in this photo [Exhibit A] - what have I got to - you know what I mean - what is there to determine any other age? Q. I asked you a little while ago‑‑ A. Any other age factor. Never seen her in a school uniform. What's the reason for me to suspect anything? You've got your mate coming up to you, saying 'This is my missus, she's 16.' What are you going to do? Look at your mate and go 'Yeah, all right. I don't think so.' No. Whatever. Q. But a moment ago, I asked you why would you put yourself in the position of being alone in your bedroom with this girl. And in your answer, you referred to the fact she was 16? A. No, I said well, what's it matter? You don't need to be in the room with somebody, either way, to have sex with them. Like, what? Q. I asked you why you put yourself in the position - putting aside the fact it was [KS's] girlfriend, as far as you thought. Why would you put yourself in the position of being alone with a young girl in your bedroom? And during your answer, you referred to the fact she was 16. Now, why did you tell us she was 16? A. Because I'm under the assumption she was 16. What's the issue with having a 16-year-old in your room? Q. Well, your answer is saying to us well, it was all right for her to be alone in your room because she was of the age of consent. That's what you're saying, isn't it? A. Well, no. What I'm saying is why would I have any reason to not let her in my room at this stage? Q. We're talking about the fact that you've mentioned she was 16 in answer to my question. What's the relevance of that? A. Yeah. And what I'm saying, mate - the relevance is the fact that you're saying 'Why would you let a 12-year-old into your room?' I'm not letting a 12-year-old into my room, I'm letting what I assume to be a 16-year-old into my room. Q. And the difference is what? A. The difference is if it had have been a 12-year-old, I would have got right back on the phone to my dad and said 'How about you be a fucking father and do it?' Q. What difference does it make whether she was 12 or 16? She was a complete stranger, she was a young girl and she was alone with you in your bedroom. What difference does it make whether she was 12 or 16? A. Well, the difference - what does her age got to do with the fact of nothing happened anyway? Q. Well, I'm asking you what has her age got to do with it? A. Well, the age actually has nothing to do with it. But the fact of the matter is I was not under the assumption that she was 12 years old at the time. So why would I have any reason to suspect anything whatsoever to not let her in my house, or in my room, or any reason. Q. You were suggesting, by your answer, that it would be all right to have her alone in your room with her if she was 16, because that's the age of consent. That's what you're suggesting, wasn't it? A. No. Q. Then why mention she was 16? What has age got to do with it? A. Whatever. Q. You knew her age. You knew she was 12. A. No, I didn't."

The Crown's closing address

1. Mr Nash submitted that the prosecutor made inappropriate reference of the applicant's demeanour in the witness box and used it with a view to demonstrating that the applicant was guilty of count 1. He relied on the following passages: "CROWN PROSECUTOR: Ladies and gentlemen, what did you think of the accused's evidence yesterday? This submission I'm making to you is this: you'll be satisfied beyond reasonable doubt as to count 1. That's the Crown submission to you. You'll remember in opening I referred to the indictment and the difference between count 1 and count 2, count 2 being the alternative, and count 2 alleges that the accused had sex with an underage girl. Having sex with an underage girl is a crime, but this case is more serious than that. This isn't just a case of a man who had sexual intercourse with a young girl aged 12. It is a case that involves the violent and forceful physical overpowering of a young girl to have sexual intercourse. You see, she didn't consent to the sexual intercourse. She wasn't a 12‑year‑old lured into the unlawful act of sexual intercourse. She was a young girl who was forced to suffer sexual intercourse. What did you think of the accused's evidence yesterday? Often it's not what a person says but the way they say it that speaks volumes. It is what it is. Did he look to you to be a man with self‑control? Did he look to you to be a man capable of violence to get what he wants? These are matters for you. … You see, she didn't consent to the sexual intercourse. She wasn't a 12‑year‑old lured into the unlawful act of sexual intercourse. She was a young girl who was forced to suffer sexual intercourse. What did you think of the accused's evidence yesterday? Often it's not what a person says but the way they say it that speaks volumes. It is what it is. Did he look to you to be a man with self‑control? Did he look to you to be a man capable of violence to get what he wants? These are matters for you. Yesterday I asked him about [S] … He had sexual intercourse with [S]. [S] was underage, ladies and gentlemen, but I asked, 'You knew she was underage?' and he said yes. Q. Yet that didn't deter you from going ahead and having sexual intercourse with her. Why not? A. Like I - like I said. It was a completely different circumstance at the time, and to me, yeah, okay, I shouldn't have done it, but it is what it is. I did what I did, and I made up and made mistakes, owned my mistake and changed my mistake. Haven't done it since. Q. Why didn't you exercise self‑control and not have sex with a girl who's 15? A. Well, that's a bit - how would you have control staying back from someone who is all on top of you, mate? Q. It's not about me. It's about you. A. Well, it's not easy. It's easy - well, it's easy to say 'no, no, no, no, no' for a certain extent, but when they're all over you it's not that easy to say no, because what are you gunna do? Cry 'rape' as a male? You get laughed at. What did you think of the accused's evidence, ladies and gentlemen? Often it's not what a person says but the way the person says it. As the accused says, 'It is what it is.'"

Consideration of ground 2

1. There is a preliminary question whether leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (r 4.15) was required to raise this ground as no objection was taken by the applicant's trial counsel to these matters. Rule 4.15 provides: "4.15 Exclusion of certain matters as grounds for appeal without leave No direction, omission to direct, or decision as to the admission or rejection of evidence, given by a trial judge may, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the appellant or applicant for leave."
2. In the present case, no objection was taken to any of the questions asked by, or conduct of, the prosecutor, which Mr Nash contended in this Court were inappropriate or unfair. Thus, no direction or omission to direct, or decision as to the admission or rejection of evidence was called for. In these circumstances, r 4.15 does not apply in terms. However, accepting that to be the case, the considerations which lie behind r 4.15 are nonetheless relevant: Edwards v R [2022] NSWCCA 22 at [69] (Dhanji J, Bathurst CJ and Rothman J agreeing).
3. Although the transcript comprises an accurate record of the words uttered, it cannot reveal the tone used (except to the extent that the judge or the legal representatives note such matters for the record). Thus, it does not reveal whether cross-examination was conducted in a snide, derogatory manner, designed to inflame a witness, or courteously in a balanced but firm voice. Nor does the transcript reveal whether a witness is becoming riled by questioning or able to deal with it in a robust way: see the discussion in Skelton v R [2015] NSWCCA 320 at [63]-[66] (Beazley P and Davies J). These are matters to which those present at a trial are privy but this Court is not.
4. It can be assumed, in the absence of incompetence (and there is no suggestion that the applicant's counsel was incompetent in the present case), that the applicant's trial counsel was alert to protect the applicant's interests. Had the applicant's trial counsel considered the prosecutor's questioning or closing submissions to be unfair, he could have objected, sought a direction from the trial judge or sought a discharge of the jury. He did none of those things. Yet, the record showed that the applicant's trial counsel was alert to the applicant's fitness and to the potential damage that, for example, the applicant's disclosure that he was on a good behaviour bond, could do to the applicant's case. These general observations constitute, in the circumstances of the present case, powerful matters which militate against the complaint in ground 2.
5. This Court summarised the principles governing the conduct of prosecutors in a criminal trial in Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 at [265]-[275] (Beazley P, Schmidt and Button JJ).
6. There are significant obligations on prosecutors to be fair. But the concept of fairness must be seen in the context that the prosecutor's duty is to put the Crown case as forcefully as appropriate: Zurshig v R [2021] NSWCCA 309 at [115] (myself, Basten JA and Wright J agreeing). This Court (Basten AJA, Price and N Adams JJ) in Crockford v R [2022] NSWCCA 115 distilled the propositions identified in Glenn (a pseudonym) v R [2020] NSWCCA 308 at [189]-[219] (N Adams J, Hoeben CJ at CL and Button J agreeing) as follows: "First, while a prosecutor is entitled, perhaps obliged, to present the prosecution case 'firmly and vigorously', that obligation is tempered by the need for restraint. As an officer of the State, the prosecutor has a duty to ensure the fairness of the trial. Secondly, a fair trial may be in jeopardy where a prosecutor (i) makes statements having the tendency to inflame prejudice, rather than promote rational assessment of the evidence, (ii) misrepresent any part of the evidence, or (iii) express personal opinions in relation to the evidence or the witnesses. Thirdly, while a form of expression inviting the jury to reject the defendant's case in language which the prosecutor thinks the jury will understand is appropriate, colloquialisms should be avoided, especially if they have a pejorative flavour, because they may invite an instinctive response, rather than a rational assessment of the evidence."
7. In the present case, proof of the prosecution case required the Crown to persuade the jury that the applicant's version could not possibly be true. This was not a case where a witness might have been mistaken about a matter: the complainant's evidence was that the applicant had had sexual intercourse with her without her consent and the applicant's case was that there had been no sexual touching whatsoever. Thus, it was necessary for the prosecutor, in order to put the Crown case, to seek to discredit the applicant with a view to the jury rejecting his evidence. However, the prosecutor was bound to do so in a temperate way and ensure that the substance or form of his delivery was not unfair and did not inflame the jury's emotions. The following principle from Hughes v R at [269] is apposite to this task: "… a Crown prosecutor is not prohibited from forcefully and firmly putting the prosecution case to the jury: see McCullough at 285; and R v Rugari (2001) 122 A Crim R 1; [2001] NSWCCA 64 at [52] (Carruthers AJ, with whom Spigelman CJ and Sperling J agreed). Nor is a Crown prosecutor prohibited from utilising rhetoric: see Libke v The Queen (2007) 230 CLR 559 at 600; [2007] HCA 30 (Heydon J). Nor is a Crown prosecutor prohibited from firmly calling upon the jury to reject defence evidence or a defence case as inherently unbelievable."
8. The "topics" which were available to the prosecutor to attempt to discredit the applicant included the following: 1. despite the fact that the applicant was a friend of KS and knew the complainant to be KS's girlfriend, the applicant did not suggest that KS look after her when she ran away from home; 2. the applicant was concerned to emphasise that he believed the complainant to be 16 years old, although the jury had evidence in the form of a contemporaneous photograph (Exhibit A) which made it inherently implausible that she was actually 16 (because she looked younger); and 3. the applicant had already had sexual intercourse with a girl, S, whom he knew to be underage and, thus, the jury could reject the applicant's evidence that, had he known the complainant was 12, he would not have let her into the house.
9. In these circumstances, it was, in my view, open to the prosecutor to question the applicant on these topics. While certain objectionable questions were asked (including the one which required the applicant to speculate about what was going on in KS's head), there is no indication from the transcript that the applicant was not capable of answering them. Indeed, although the applicant's counsel did not object to the question which required the applicant to speculate about KS's thought processes, the applicant's answer made the point sufficiently.
10. Further, although KS said that he had told the applicant that the complainant was 16, the complainant herself had given evidence that she had told the applicant, some time earlier in 2015, that she was 12. The Crown was entitled, in these circumstances, to put to the applicant that he knew that the complainant was 12. It was also open to the Crown to put to the applicant, in effect, that he was using what KS had said to him about the complainant's age to justify his allowing her to stay at his place and sleep in his bed. The prosecutor was entitled to challenge his evidence that he would not have allowed a 12-year old to stay. These matters all fell within the prosecutor's obligation to put the Crown case and to challenge the applicant's evidence, to the extent to which it was inconsistent with the Crown case.
11. The applicant's trial counsel was well aware of the procedural history to the matter and, as the narrative above sets out, raised the issue of the applicant's fitness for trial. He knew that the applicant's condition was being controlled with medication and asked that he give his evidence in the morning because that was a better time for him. This application was acceded to. Had he considered that the applicant was at a disadvantage in this respect, it would have been open to him to apply for an adjournment in the absence of the jury.
12. By raising the issue of the applicant's demeanour in the Crown closing address, the prosecutor was appropriately affording natural justice to the applicant. The jury were given directions about assessing credibility and told to observe the way witnesses gave their evidence. Further, the Crown had to raise demeanour so that the jury would know what the Crown said about the applicant's demeanour. It was reasonable for the Crown to anticipate that it would be raised by the defence and appropriate for the Crown to raise it in order that the defence could respond to it.
13. I do not consider the prosecutor's use of the words, "we" and "us" as improper. There are various ways in which an advocate (whether for the Crown or for the defence) can communicate with the jury about answers given by a witness. Instead of saying, "you're saying X", the advocate could say, "you're telling the Court X" or "you're telling the jury X", or, as in the present case, "you're telling us X". The personal pronoun, "me", is rarely used because the jury is the relevant tribunal and, thus, although the answer is given to the advocate's question, the trier of fact is the jury. Thus, the answer becomes evidence which the jury can take into account in its deliberations. I do not consider that, by using the words "we" and "us", the prosecutor was trying to align, or ingratiate, himself with the jury. It was simply a turn of phrase which was designed to indicate that, although the prosecutor was asking the question, the answer was to be taken into account by the jury as a whole as well as the judge, for the purposes of the conduct of the trial generally and the summing up.
14. As the transcript extracts set out above indicate, there is a degree of looseness and repetition in some of the prosecutor's questions which may have been a product of fatigue or lack of confidence that the point had already been made. Trials are dynamic and make substantial demands on counsel, particularly during cross-examination and final address. I do not regard these matters as affecting the fairness of this trial in any material way. This is particularly so as the applicant was acquitted of count 1, which was the count to which consent, and the applicant's mental state as to the complainant's consent were germane.
15. For these reasons, I am not persuaded that ground 2 has been made out.

Ground 3: alleged unreasonable verdict

1. The applicant submits that the verdicts were unreasonable on the following bases: 1. the prosecutor: 1. focussed on count 1 and did not address on count 2; and 2. closed on the applicant's knowledge (as opposed to recklessness) of the complainant's lack of consent; 1. there was no basis in the evidence to find the applicant guilty of count 2 because if the jury doubted the complainant's evidence about consent, they must have entertained a doubt about the sexual intercourse having occurred; and 2. there were significant inconsistencies within the complainant's account and between the complainant's account and the complaint witnesses' evidence such as to make the verdict unreasonable on the basis considered in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.
2. The principles which apply in determining whether a verdict of guilty is unreasonable were summarised by Johnson J (Cavanagh J agreeing) in Khorami v R; R v Khorami [2021] NSWCCA 228 at [140]-[146]. It is not necessary to repeat them. In essence, the question for this Court is whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of the offence of which the jury found him guilty.
3. Because ground 3 was put on different bases, it is necessary to address them in turn.

Whether the Crown was entitled to limit its case on count 1 to knowledge as opposed to recklessness

1. It was open to the Crown to address the jury on the basis of the more demanding standard of knowledge rather than recklessness in terms of the mental element of count 1. This was to the advantage of the applicant since, had the jury been satisfied that the applicant was reckless as to the complainant's consent, the jury would have returned a not guilty verdict. By contrast, had the prosecutor addressed on knowledge and recklessness, the jury would have been obliged to convict if they were satisfied of recklessness but not knowledge.
2. This approach had potential advantages for the Crown on sentence since, had the applicant been convicted on count 1, he would have been sentenced on the basis that he knew that the complainant was not consenting, this being the only basis on which count 1 was put to the jury: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung).

Whether the verdict on count 2 was unreasonable in circumstances where the Crown had not addressed on count 2

1. The Crown has a right to allege alternative counts on an indictment: s 23(3) of the Criminal Procedure Act 1986 (NSW). There is no basis in the present case for any suggestion that the Crown did not press count 2 on the indictment (of which each juror was given a copy). It was plainly in issue in the course of the trial. The complainant was 12 years old at the time the applicant is alleged to have had sexual intercourse with her. If the jury was not satisfied of the elements of count 1, but satisfied that the intercourse occurred and of the applicant's state of mind about the complainant's age, the jury was obliged to return a guilty verdict in respect of count 2. In the circumstances of the present case, it was not necessary for the Crown to separately address count 2, which was, in substance, subsumed within count 1 but did not require the same mental element as count 1.
2. The trial judge gave directions to the jury about each of the two counts and identified the elements of each count. Her Honour told the jury that if they were not satisfied that the applicant was guilty of count 1, they should proceed to consider count 2. Her Honour's directions, which were not the subject of objection at the time or challenge before this Court, included the following: "Count 1, sexual intercourse without consent in circumstances of aggravation. Members of the jury, that is just a short way of referring to the charge. It is just a heading for convenience sake. The law provides that it is an offence for a person to have sexual intercourse with another person without the consent of the other person, knowing that the other person does not consent and in circumstances of aggravation. The essential elements of the offence are element 1, the accused had sexual intercourse with another person, [the complainant]; element 2, without her consent; element 3, knowing that she did not consent; element 4 in circumstances of aggravation, namely that at the time of the sexual intercourse the other person, [the complainant], was under the age of 16 years, namely 12 years. The Crown must satisfy you beyond reasonable doubt of each of these four elements before you may find the accused guilty of the offence charged. Alternative to count 1, count 2. Sexual intercourse - child between ten and 14. Again, members of the jury that is just a convenient heading. The law provides that it is an offence for a person to have sexual intercourse with another person who is of or above the age of ten years and under the age of 14 years. The essential elements of the offence are element 1; the accused had sexual intercourse with another person, [the complainant], and element 2, at the time of the sexual intercourse, [the complainant] was above the age of ten years and under the age of 14 years, namely 12 years. And, element 3. The accused either (a) did not honestly believe that the complainant was 16 years of age or (b) had no reasonable grounds for believing that the complainant was 16 years of age. The Crown must satisfy you beyond reasonable doubt of each of these elements before you may find the accused guilty of the offence charged. Now, members of the jury, I just want to give you a direction about the fact that there is an alternative count on the indictment. Count 2 is charged in the alternative to count 1. It is a matter for you how you approach your task in determining the verdict to give on the principal charge, count 1 in the indictment and the alternative charge count 2, available for your consideration. Of course, if you are not satisfied that the Crown has proved beyond reasonable doubt all the necessary elements of the principal offence, count 1, then you must find the accused not guilty of that charge. You may then consider whether the Crown has proved beyond reasonable doubt all the necessary ingredients of the alternative charge count 2, which is set out on the indictment."
3. I am not persuaded that the verdict of guilty of count 2 can be impugned by reason of the circumstance, which was understandable in the present case, that the Crown did not specifically address on count 2. One might ask rhetorically what the Crown would have said about count 2 other than to paraphrase what the prosecutor could reasonably have expected the trial judge to say, in the form of directions, about the jury's consideration of count 2, if they were not satisfied of the applicant's guilt of count 1.

Whether the verdict on count 2 was unreasonable on the basis that the jury must have entertained a doubt regarding the complainant's evidence to return a not guilty verdict on count 1

1. Mr Nash submitted that the verdict of not guilty of count 1 was explicable on the basis that the jury did not accept the complainant's evidence that she did not consent to the act of sexual intercourse. He submitted that if the jury entertained a doubt about this aspect of the complainant's evidence, the jury ought to have entertained a doubt as to whether the sexual intercourse occurred at all and, thus, the verdict in respect of count 2 was unreasonable.
2. I do not accept this analysis. Although Mr Nash ultimately accepted that the verdict of not guilty on count 1 was not inconsistent with the verdict of guilty on count 2 (an inevitable concession given that count 2 was an alternative charge), it does not follow from the not guilty verdict on count 1 that the jury had any doubt about the complainant's evidence.
3. The verdict of not guilty on count 1 was consistent with the jury accepting the complainant's evidence that: 1. the sexual intercourse had occurred; and 2. that the complainant did not consent to the sexual intercourse but not being satisfied beyond reasonable doubt that: 1. the applicant knew that the complainant did not consent.
4. Element (3) required the jury to consider the applicant's state of mind, which could not be determined by their acceptance of the complainant's evidence. Thus, a verdict of not guilty on count 1 does not lead to an inference that the jury had any doubt about the complainant's evidence. Indeed, the guilty verdict on count 2 indicates that the jury accepted the complainant's evidence that there had been sexual intercourse. It also tended to suggest that the jury accepted her evidence that she had told the applicant that she was 12 and thus, it was not reasonable of the applicant to rely on KS's statement to him that she was 16.

Inconsistencies in the evidence

1. Mr Nash also submitted that there were several unsatisfactory aspects to the complainant's evidence which meant that she could not reasonably be accepted as a credible witness. He relied on the following: 1. the substantial period of time the complainant spent at the applicant's home the day after the alleged offence; 2. inconsistencies in the evidence about the persons to whom she disclosed the sexual contact and when such disclosures occurred: 1. in her first interview she said that she told her father on 18 June 2015 but her father's evidence was that he was not told until some days later; 2. the complainant said that she had not told the police at Mount Druitt Police Station because she sensed that Dina and Sally had not believed her when she had told them but Sally did not see the complainant until after she had already been to the police station with Dina and Dina's aunt (as Sally was coming from Taree and had not yet arrived); 3. in her pre-recorded evidence, the complainant said that she told Sally as soon as Sally arrived which led to Sally arranging for the complainant to go to the doctor; 4. Sally's evidence was that "[it was] really hard for [the complainant] to talk, but she slowly started letting things out" and "it was in slow words and not saying what she should have been saying". Sally said that "finally after she spoke to me, she said that someone sexually touched her"; 5. KS's evidence was that the complainant had told him that the applicant had got her drunk and then had sex with her; 6. the complainant's evidence that the impetus for her formal complaint was the Facebook friend request from the applicant and his partner in 2017 and that she had shown the request to Ms Boyall when making the disclosure on 7 June 2017 (which was denied by Ms Boyall); 7. the applicant tendered evidence that the complainant had sent him a friend request on Facebook; 8. the complainant initially said that that she had no contact with the applicant after leaving his home on 18 June 2015 but subsequently acknowledged that she had regularly tried to contact him by phone before his number was disconnected; and 9. the complainant told her mother and police that she had feelings for the applicant and that she wanted to protect him; 1. Other evidence which made the complainant's evidence objectively unlikely, such as the applicant's brother's evidence that he had not heard any cries of "Stop" (or similar) coming from the applicant's room that night and that the complainant had not appeared distressed the following morning.
2. I do not regard the matters raised by Mr Nash as materially bearing on the complainant's credit to the point that it can be inferred that a reasonable jury must have had a doubt about her evidence.
3. The jury was, appropriately, directed that they could accept part of a witness' evidence and reject, or not accept, other parts. The details of whom the complainant told and when, were, in the context of the charged offence itself, relatively peripheral. It was open to the jury to accept Sally's evidence that the complainant had difficulty revealing what had happened but eventually disclosed enough to Sally to lead Sally to realise that the complainant should have a STI test and a pregnancy test. Although the precise timing of that disclosure is not known, it occurred within a day of the alleged offence and not long after Sally arrived from Taree to see the complainant, having made the trip because of her concern for her sister.
4. Further, KS's evidence that the complainant told him, not long after the event, that the applicant had got the complainant drunk and had sexual intercourse with her may also have influenced the jury to be satisfied that it had actually happened, as the complainant had described it.
5. In her evidence about trying to get in contact with the applicant, the complainant explained that she felt that she had to apologise for the police coming to his place and tell him that she was not the one who had caused that to happen. Further, the jury might have regarded the following pre-recorded evidence on 4 September 2019 as bearing on the question of her judgment about the applicant: "… the way that me and [the applicant's] relationship was that I had a lot of trust in everything that he would say so if he thought that it was okay to do what he did then even if he was 17 in my head it was - it's just what happens, that's just what relationships are like."
6. The jury might have been impressed by the complainant's naiveté, as illustrated by her evidence that she had never been kissed before and therefore did not know what to do when the applicant started to kiss her. Her evidence, including the passage set out above, indicated that she had no real idea about what the physical aspect of a "relationship" entailed.
7. The jury may have regarded the applicant's brother's evidence as being affected by their relationship and may have regarded the applicant's brother's evidence about not hearing the complainant saying "Stop" as unreliable on that basis, or on the basis that the complainant said it but that he did not hear it from his bedroom.
8. As to the question of who initiated the Facebook friend request, the complainant or the applicant's girlfriend, it was open to the jury to accept the complainant's evidence that she had several Facebook accounts and had been locked out of several because they had been hacked. In these circumstances, the jury might have regarded the Facebook friend request which had apparently come from the complainant to the applicant (which was tendered in the applicant's case) as unlikely to be genuine.
9. For the reasons given above, ground 3 has not been made out. I consider that it was open to the jury on the whole of the evidence, including the evidence relied on by Mr Nash as being inconsistent, to be satisfied of the applicant's guilt of count 2 beyond reasonable doubt.

The ground of appeal against sentence: alleged erroneous factual basis for the sentence

1. As ground 4 is so confined, it is not necessary to summarise the proceedings on sentence or the reasons for the sentence. It is necessary to address only the submissions on the relevant factual finding and her Honour's reasons for making that finding. Ground 4 is closely related to ground 2.
2. Judge Woodburne SC was the trial judge and the sentencing judge. There was no additional evidence on the proceedings on sentence which was germane to the finding of the circumstances of the offence under count 2, for which the applicant was to be sentenced.

The proceedings on sentence

1. The Crown relevantly submitted, in writing that the following ought form the basis for the sentence to be imposed on the applicant for count 2, as it was the complainant's evidence, which the jury accepted: "At around half time of the State of Origin the victim said to the offender that she wanted to go to bed. The two had previously discussed sleeping arrangement, with the offender having told the victim that she could sleep in his bedroom and he would sleep in the lounge room. The victim went to the offender's room and laid on the bed. Less than a minute after the victim laid down, the offender entered the bedroom, closing the bedroom door behind him, which was secured with a red locking device. The offender put on loud music, played from his computer, before laying down next to the victim. After laying next to her for a short while, the offender straddled the victim and pinned her arms against the bed. The offender then removed his trousers, before using one hand to pull down the victim's tights. As he continued to hold the victim down, the offender inserted his penis into the victim's vagina. As the offender did this, the victim said 'this really hurts, you need to stop'. The offender continued to engage in sexual intercourse with the victim, saying 'It'll feel better after. It's all right, it's all right'. The victim again told the offender that it really hurt and to get off her. As she said this she was pushing the offender's shoulders away from her, but was unable to push him off. The victim lay crying as the offender continued to have sexual intercourse with her." [Footnotes omitted.]
2. The Crown submitted further: "10 The offender gave evidence of the alternate scenario, wherein no sexual activity occurred with implied drift in his evidence that [the complainant] was a willing participant. The jury rejected that account. Had the jury entertained it as a reasonable possibility, the offender would have been acquitted of both counts. 11 The immateriality of the substantive issue of consent on count 2, discounts the import of the acquittal on count 1 upon on the principles that ordinarily apply to sentencing of the instant offence. 12 The verdicts are clearly reconcilable. The corollary of the jury upon accepting the above quoted passages of evidence, was that it was open to entertain doubt as to the accused's state of mind that was a necessary element in satisfaction of count 1."
3. The applicant's counsel responded to these submissions in the proceedings on sentence as follows. He submitted that it was significant that the prosecutor had not closed on count 2. He said that the Crown case for count 1 was based on the complainant's accuracy and reliability and noted that the jury did not find him guilty of count 1. Thus, he submitted on sentence that the sentencing judge was left with the jury finding the applicant guilty of intercourse with a 12-year old, "but not against her will". He submitted that the two verdicts were irreconcilable.

The sentencing judgment

1. Her Honour addressed the issue referred to above as follows in the sentencing judgment: "In making the findings I have, I have not overlooked the submissions of Mr Williams of counsel who took issue with the proposed findings in relation to the act of sexual intercourse and the circumstances in which it took place. Very shortly stated, it was submitted the facts for Count 2 have to be looked at in light of the acquittal on Count 1 and 'to say there was no consent, that is not in accordance with the verdict of the jury' (POS 25 May 2021 T.22.28). As to what facts should be found it was submitted, 'That they were there and had sexual intercourse'. It was submitted, that in light of the way the Crown put its case and the verdict of 'not guilty' on Count 1, that in respect of the act of sexual intercourse the finding should be that Mr Krojs had sexual intercourse with the victim 'simpliciter' and that it was not against [the complainant's] will (POS 14 July 2021 T.25.17). I have firmly kept in mind that the offender does not stand to be sentenced for the significantly more serious offence of sexual intercourse with a child then above the age of ten years and under the age of 14 years, without the consent of that child knowing that the child does not consent. However, the verdict of not guilty on Count 1 does not either warrant or require the Court to proceed on the basis that the victim's evidence as to the lack of consent was rejected by the jury. Moreover, the verdict of 'not guilty' on Count 1 does not either warrant or require the Court to proceed on the basis that the only finding that can be made in relation to the act of sexual intercourse and the circumstances in which it was committed is that the offender and the victim were present and sexual intercourse occurred. Further, the verdict of 'not guilty' on Count 1 does not either warrant or require the Court to find that the sexual intercourse was not against the victim's will. For reasons set out in the judgment to be given on the application for appeal bail, the verdict of not guilty on Count 1 does not mean that the jury did not find the victim to be an honest and reliab[le] witness. The verdict of the jury is readily explicable on the basis that the jury was not satisfied beyond reasonable doubt that the accused actually knew that [the complainant] was not consenting to the sexual intercourse. In such circumstances it is not appropriate to find simply that there was sexual intercourse. The circumstances of that sexual intercourse must be taken into account. There was, I am satisfied, a degree of physical coercion and pressure and attempted persuasion involved, that is, not to suggest that there was additional nonsexual violence, that is violence in the way it may be commonly understood or indeed 'according to the manual' (evidence of Dr Furst p 15, Transcript 21 May 2021). The verdict of not guilty on Count 1 does not require the Court to find the opposite of the evidence given by the complainant as to the circumstances in which the sexual intercourse occurred. Those circumstances, as I have said, involved a degree of physical coercion and pressure and attempted persuasion. The verdict of not guilty on Count 1 does not require the Court to find the opposite of the evidence given by the complainant, namely, that she did not want Mr Krojs to put his penis in her vagina. The verdict of not guilty on Count 1 does not require the Court to find that such sexual intercourse was not against the child's will. Such findings would be contrary to the facts that I am satisfied are established beyond reasonable doubt by the evidence upon the basis of what I am satisfied was the honest and reliable evidence given by the victim."

Consideration of ground 4

1. In R v Isaacs (1997) 41 NSWLR 374 (Isaacs), this Court (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ), at 379-380, overturned authorities which had sanctioned the questioning of juries as to the basis of their verdict. Their Honours, at 378, identified the following principles, which were said to apply not only to manslaughter (the relevant offence in Isaacs) but also to other offences: 1. it was for the judge to find the facts which are material to the exercise of the sentencing discretion, so long as the facts were consistent with the jury's verdict (following Savvas v The Queen (1995) 183 CLR 1 at 8 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1995] HCA 29). 2. the sentencing judge is not required to sentence the offender on the basis of the view of the facts which is most favourable to the offender but must be satisfied of those matters which were to be taken into account adversely to the offender, beyond reasonable doubt: see also The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [25] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
2. The Court in Isaacs held that the sentencing judge's task was not to determine the basis on which the jury had found the appellant guilty of manslaughter, but rather to find the facts which were material to sentencing, consistent with the jury's verdict of manslaughter.
3. These principles were confirmed and applied by the High Court in Cheung. The appellant in Cheung was charged with being knowingly concerned in the importation of almost 50kg of heroin. An accomplice gave evidence that the appellant had been involved in the planning, implementation and importation over a period of about nine months. The appellant was sentenced on the basis of the accomplice's evidence of his greater involvement. The appellant appealed on the basis that the judge was obliged to sentence on the basis of a view of the evidence which was most favourable to him.
4. When addressing the duties of the sentencing judge, the plurality (Gleeson CJ, Gummow and Hayne JJ) said at [5]: "The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and in so far as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace."
5. The principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni) is also significant. It is that an offender is to be punished only for the offence of which he or she has been convicted and not for other acts which are not the subject of the verdict which could have constituted a more serious offence: at 389 and 392 (Gibbs CJ, Mason and Murphy JJ agreeing).
6. In the present case, the sentencing judge, for reasons given in her sentencing judgment, sentenced on the basis that the sexual intercourse was the result of physical coercion and pressure. Her Honour was entitled to do so as long as: 1. the finding was consistent, and not inconsistent, with the jury's verdicts; 2. the finding did not breach the De Simoni principle; and 3. it was open to her Honour to make that finding beyond reasonable doubt (it being a finding adverse to the applicant).
7. The finding that the sexual intercourse was forceful in circumstances where the complainant did not consent to sexual intercourse was not inconsistent with the verdict of not guilty of count 1. All that can be said with confidence about the verdict of not guilty of count 1 is that, although the jury was satisfied that the applicant and the complainant had sexual intercourse (that being an element of count 2), the jury was not satisfied that the applicant knew that the complainant did not consent. Thus, a finding that the complainant did not consent to sexual intercourse and that the intercourse was forceful is consistent, and not inconsistent, with the verdict of not guilty on count 1. As consent and knowledge of consent are not elements of count 2, these findings are consistent with, and not inconsistent with, the verdict of guilty in respect of count 2.
8. The finding that the sexual intercourse occurred without the complainant's consent and was forceful does not breach the De Simoni principle since those facts, without more, do not bring the offence into the more serious category of an offence of aggravated sexual assault under s 61J of the Crimes Act (which carries a maximum penalty of 20 years' imprisonment). The reason for this is that it does not import any finding about the applicant's state of knowledge about whether the complainant consented.
9. The finding made by her Honour was open as the complainant gave evidence to that effect, which her Honour accepted to the requisite standard. As the plurality said in Cheung in the passage extracted above, this is a matter of potential importance to an assessment of the offender's culpability which can be the subject of judicial determination as part of the sentencing role.
10. For these reasons, ground 4 has not been made out.

Proposed orders

1. For the reasons given above, I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
2. WRIGHT J: I agree with Adamson J.
3. FAGAN J: I agree with Adamson J.

Amendments 30 September 2022 - Typographical error corrected - headnote DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2022