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[2025] NSWCCA 119
General information, not legal advice.
Court of Criminal Appeal (NSW)
2025-08-08
Wright J at [1]Weinstein J at [2]Rigg J at [3]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kumar v R [2025] NSWCCA 119
Hearing dates: 7 May 2025
Date of orders: 8 August 2025
Decision date: 08 August 2025
Before: Wright J at [1]
Weinstein J at [2]
Rigg J at [3]
Decision: (1) Extend the time for the applicant to file the Notice of Appeal to the date of filing.
(2) Grant leave to appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) in respect of both Ground 1 and 2, and pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of Ground 1.
(3) Allow the appeal.
(4) Quash the convictions and sentence.
(5) Order that there be a re-trial of the applicant.
(6) Remit the matter for mention at the District Court at Newcastle on 14 August 2025.
Catchwords: CRIME – appeals – appeal against convictions – whether a miscarriage of justice arose in the trial – bases upon which knowledge of absence of consent left to jury – whether the Crown advocate’s misstatement amounted to a miscarriage of justice – whether the judicial direction to the jury regarding knowledge of lack of consent resulted in a miscarriage of justice – miscarriage of justice established – mixed verdicts – whether the guilty verdicts were inconsistent with the not guilty verdicts – guilty verdicts not unreasonable – extension of time and leave to appeal granted – appeal allowed – convictions and sentence quashed – re-trial ordered
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Supreme Court (Criminal Appeal) Rules 2021 (NSW)
Cases Cited: AH v R [2019] NSWCCA 152
Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80
BQ v The Queen (2024) 279 CLR 124; [2024] HCA 29
Brawn v R [2025] HCA 20; (2025) 99 ALJR 872
Cabot (a pseudonym) v R [2018] NSWCCA 265
Collins v R [2020] NSWCCA 198
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Darby v R [2016] NSWCCA 164
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Ewen v The Queen [2015] NSWCCA 117; (2015) 250 A Crim R 544
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Ganiji v R [2019] NSWCCA 208
Hanna v R [2023] NSWCCA 182
He Kaw Teh v The Queen (1985) 157 CLR 523
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12
Kural v The Queen (1987) 162 CLR 502
Lee v R [2023] NSWCCA 203
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MDP v The King [2025] HCA 24
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Norris v The Queen (2007) 176 A Crim R 42; [2007] NSWCCA 235
NW v R [2023] NSWCCA 134
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65
TB v R [2019] NSWCCA 224
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Tuuholoaki v R [2024] NSWCCA 135
Walker v R [2019] NSWCCA 4
Xu v R [2023] NSWCCA 93
Texts Cited: New South Wales Law Reform Commission, Report 148: Consent in relation to sexual offences, (September 2020)
Category: Principal judgment
Parties: Tarun Kumar (Applicant)
Rex (Respondent)
Representation: Counsel:
R Rodger / C Brain (Applicant)
G Wright SC (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2021/00290962
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of the name of, or any matter that could identify, the complainant is prohibited.
[This headnote is not to be read as part of the judgment]
Following a trial by jury, on 4 July 2023, Tarun Kumar (the applicant) was convicted of the following three offences:
Count 4: On 19 March 2021 he sexually touched [the complainant] without her consent in circumstances of aggravation, namely that she was under his authority.
Count 5: On 19 March 2021 he sexually touched [the complainant] without her consent, in circumstances of aggravation, namely that she was under his authority.
Count 6: On 19 March 2021 he had sexual intercourse with [the complainant] without her consent, in circumstances of aggravation, namely that she was under his authority.
The applicant was acquitted of three further offences on the indictment as follows:
Count 1: On 17 March 2021 he sexually touched [the complainant] without her consent, in circumstances of aggravation, namely that she was under his authority.
Count 2: On 17 March 2021 he had sexual intercourse with [the complainant] without her consent, in circumstances of aggravation, namely that she was under his authority.
Count 3: On 17 March 2021 he had sexual intercourse with [the complainant] without her consent, in circumstances of aggravation, namely that she was under his authority.
On 22 September 2023, the applicant was sentenced by his Honour M L Williams SC to an aggregate term of 3 years and 6 months’ imprisonment commencing on 4 July 2023 and expiring on 3 January 2027 with a non-parole period of 22 months, which expired on 4 May 2025.
The applicant sought leave to appeal against his convictions on the following amended grounds:
Ground one: A miscarriage of justice arose:
(i) from the Crown prosecutor's misstatement of the bases upon which “knowledge” of an absence of consent could be established at law for each offence and/or;
(ii) the trial judge's directions to the jury in relation to “knowledge” by including consideration of what the applicant “thought”, or “believed”, in the particular circumstances of this case.
Ground two: The jury’s verdict of guilty on Counts 4-6 were not consistent with its verdicts of not guilty on Counts 1-3 and therefore the guilty verdicts are not safe.
The Court held per Rigg J (Wright and Weinstein JJ agreeing) extending time, granting leave to appeal, upholding ground 1 and dismissing ground 2. Further, their Honours quashed the applicant’s convictions and sentence and ordered that there be a re-trial of the applicant.
As to Ground 1:
At trial, defence counsel made an application to limit the method of proof of knowledge of absence of consent to actual knowledge, to which the trial judge acceded. During his closing address, which occurred prior to the trial judge’s ruling, the Crown advocate made submissions that informed the jury that knowledge of absence of consent may be proved by recklessness, or because belief in consent was not reasonable in the circumstances, in addition to actual knowledge.
During his Honour’s summing up, reference was made to the notions of thought and belief, and no clear direction was given to the jury to ensure proof of knowledge of absence of consent was only to be considered through the lens of actual knowledge rather than the two alternate paths advanced by the Crown.
A combination of these factors gave rise to a miscarriage of justice in this trial: per Rigg J at [101], [106], [108] and [110] (Wright and Weinstein JJ agreeing).
Brawn v R [2025] HCA 20; (2025) 99 ALJR 872, applied.
Xu v R [2023] NSWCCA 93; BQ v The Queen (2024) 279 CLR 124; [2024] HCA 29*,* distinguished.
As to Ground 2
The verdicts do not demonstrate a lack of logic and reasonableness, and the convictions were not unreasonable by virtue of their relationship to the acquittals. The evidence available in support of counts 4-6 was materially stronger than that in support of counts 1-3; this meant that it was open to the jury to be satisfied beyond reasonable doubt of the elements of counts 4-6 even though it found the applicant not guilty of counts 1-3: per Rigg J at [127] (Wright and Weinstein JJ agreeing).
There was a rational explanation for the variance in the verdicts even if the jury acquitted the applicant on counts 1-3 due to doubts regarding the credibility of the complainant. On the evidence, even if the jury did not accept the complainant’s account of the first incident beyond reasonable doubt, it was logical and reasonable for the jury to accept the complainant’s version of events of the second incident beyond reasonable doubt: per Rigg J at [127], [181]-[184] (Wright and Weinstein JJ agreeing).
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied.
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151; Hanna v R [2023] NSWCCA 182; Darby v R [2016] NSWCCA 164; Collins v R [2020] NSWCCA 198, considered.
WRIGHT J**:** I agree with Rigg J.
WEINSTEIN J**:** I agree with Rigg J.
RIGG J**:** On 4 July 2023 the applicant Tarun Kumar was convicted after a trial by jury, presided over by his Honour M L Williams SC DCJ, of two counts of sexually touching the complainant without her consent, and one count of having sexual intercourse with her without her consent, all in circumstances of aggravation; namely, that she was under his authority. The offences were alleged to have occurred on 19 March 2021. He was acquitted by the jury of one count of sexual touching the same complainant without her consent, and two counts of sexual intercourse without her consent, all again in the same circumstance of aggravation, alleged to have been committed two days earlier.
On 22 September 2023 the applicant was sentenced by his Honour to an aggregate sentence of three years and six months imprisonment commencing 4 July 2023 and expiring 3 January 2027, with a non-parole period of 22 months expiring 4 May 2025.
The applicant seeks leave to appeal against his convictions on grounds of mixed law and fact. He does not seek leave to appeal against his sentence. The grounds of appeal relied upon, as amended, are as follows:
“Ground one: A miscarriage of justice arose:
(i) from the Crown prosecutor's misstatement of the bases upon which “knowledge” of an absence of consent could be established at law for each offence and/or;
(ii) the trial judge's directions to the jury in relation to “knowledge” by including consideration of what the applicant “thought”, or “believed”, in the particular circumstances of this case.
Ground two: The jury’s verdict of guilty on Counts 4-6 were not consistent with its verdicts of not guilty on Counts 1-3 and therefore the guilty verdicts are not safe.”
The evidence will be summarised only to the extent necessary to consider the grounds of appeal. In 2021 the applicant operated a business which cleaned newly built houses. He was married with two very young children. The complainant started working for him in February 2021 as a cleaner. She worked three or four days a week. Sometimes she cleaned just with the applicant, and on other occasions there was a third cleaner present. The complainant did not drive, so the applicant drove her between her home and the work sites. She had been introduced to the applicant through a relative of her husband, who babysat the applicant’s wife when she was a child.
English is the complainant’s second language, and she gave evidence without an interpreter. The complainant gave evidence in chief regarding the fact that by 17 March 2021 she and the applicant had “opened up” with each other, including sharing problems in their marriages. With respect to counts 1-3 the complainant and applicant were cleaning alone on 17 March 2021. She said that they had been talking at the house they were cleaning, inferentially (although it is not completely clear) about the applicant arguing with his wife. She said he then gave her a hug which she thought was friendly. She said he then left and came back and gave her a “very weird hug” that was tight and long and different to anything he had done before, and her evidence was that she was not comfortable with it. Her evidence was that “so I ask him that – I push him or I not really push. Just remind him that stop because he started hugging me a funny hug”. She stated that at some stage “I felt like it was not right and I start crying or something”.
The complainant said the applicant had gone and come back and when he came back:
“…he start hug me or something, like tried to do with me and I said ‘No’. But he’s keep doing the same thing and I even remind him with his children just in case he going to stop. Think his children, but he pushed me and tried to pull my pants down. I don’t know and I can’t – it’s a bit hard for me to say.”
The complainant described the applicant touching her breast and she said “after that he did finish he start playing his hands under my pants and I kept saying ‘No’, but he kept going on and he pull my pants”. The complainant described the applicant putting a finger inside her vagina, and when asked if she said anything, stated “Yes, of course I say something to him to make him stop but he didn’t stop”. She said the applicant put his penis into her vagina after his finger. She said that the applicant was behind her back when these acts occurred, hugging her from behind her back, and that he pushed her down, remaining at the back of her. She said she could not remember if she said anything when he put his penis in her vagina. She stated that he pulled himself out of her and masturbated onto the carpet.
The complainant’s evidence was that the applicant then told her to dress and said “Let’s go home”. She said she cried when or after he said this. He then drove the complainant home, and when they were in his car he said “Sorry. It’ll never happen again”, and asked her not to tell her husband. She said he asked her to forgive him.
The complainant said that she felt disappointed in herself and upset, and decided to not tell her husband when she was dropped home because the applicant had promised he would not do it again, she did not know who would believe her, and she did not want to ruin the applicant’s family. There was no work available on 18 March 2021. She decided to go to work on 19 March because the applicant advised her by phone that morning that her female co-worker was also going to be working with them.
On 19 March 2021 the applicant drove the complainant and the co-worker to the house they were to clean. This was a house they had previously cleaned (not that cleaned on 17 March), but it required re-cleaning. The applicant allocated responsibilities, and the complainant was to attend to all the bathrooms.
The complainant gave evidence that while she was cleaning one of the bathrooms the applicant approached her to help and said “You smell nice”. She said she thanked him and he then “tried to get close to me” but that she kept herself away and continued cleaning. She said the applicant left and came back again and that “the same that happened at the first place happened”. She said the co-worker was vacuuming at the time so it was a bit noisy, and the applicant played music on his phone (which he always did), and tried to close the bathroom door.
The complainant described the applicant being behind her body, very close. She said he put his hands on her breasts, and down her pants, and his hands were inside her clothes. She said he was holding her tightly. He put his mouth on her bare breast. She said he pulled down her pants and then inserted his penis in her vagina. She gave evidence that “I kept saying him ‘No’. I kept saying to him ‘No’ but he kept going on and going on”. She stated that “I even remind him his children again”. She said she pulled him out of her and “said ‘Get away from me’. Not really get away, I just push him” and then saw him masturbating in the bathroom. She said he said “Sorry”.
“Firstly, that the accused actually knew that [the complainant] was not consenting to the sexual intercourse. In this case, you've heard my summary of the charges - [the complainant’s] crying and saying “No. Stop”. The Crown can also prove it in two other ways. Secondly, the accused was reckless as to whether [the complainant] consented to the sexual intercourse or thirdly, that any belief that the accused had that [the complainant] was consenting to the sexual intercourse was just not reasonable in the circumstances.”
It would seem that these references were made mistakenly, intending to address instead the Crown’s proposed method of proving the applicant’s knowledge of lack of consent, not the complainant’s lack of consent.
In his closing submissions, addressing the requisite mental state on the part of the applicant firstly in connection with the sexual touching count arising from 17 March 2021, it was submitted that the Crown could prove that the applicant knew the complainant was not consenting in three ways; namely:
“Firstly, he actually knew that [the complainant] was not consenting; secondly, that he was reckless as to whether [the complainant] was not consenting; and thirdly, any belief that he had that [the complainant] was not consenting was just not reasonable in the circumstances. As I mentioned above, [the complainant’s] evidence was that she said no and again, if you accept [the complainant’s] evidence you might think this would be enough for the accused to realise that [the complainant] was not consenting.”
“So in the same way the Crown can prove that by three things.
Firstly, the accused actually knew. Secondly, the accused was reckless as to whether she was consenting. And thirdly, any belief that the accused had that [the complainant] was consenting is just not reasonable in all the circumstances. Again, if you accept [the complainant’s] evidence that she said “No”, to the accused, to think about his children, you might think that the circumstances are such that he must have known [the complainant] was not consenting.”
In addressing counts 4 and 5, the allegations of sexual touching without consent on 19 March 2021, the prosecutor stated that he relied upon the same four things to be proved as he had addressed upon for count 1. He did not repeat what he had said regarding the applicable elements for sexual intercourse without consent, and the three ways in which knowledge of absence of consent could be proved.
The prosecutor stated a number of times during his closing address that his Honour would provide legal directions regarding the elements, that he was just providing a summary, and that it was his Honour’s directions that the jury was required to follow.
Defence counsel submitted that the accounts of the complainant and applicant were very different. She submitted that the complainant’s account was inconsistent and had changed. It was argued that the inconsistencies regarding what happened on 17 March 2021 were the most significant. These were submitted to be not minor details, but completely contradictory accounts. Whereas her evidence in chief clearly described sexual intercourse occurring while the applicant was behind her back, supplemented in cross-examination to state that she was in fact on her knees on the carpet cleaning the mirror when he assaulted her from behind, pulling her jeans down; her account to the police (which she came to accept when taken to it as what in fact occurred) was that she was lying on her back with her jeans completely off and her legs bent and apart when sexual intercourse took place.
It was argued that the complainant’s account of how her skinny jeans and underwear were removed was implausible and impractical. The jury was invited to reason that if they could not accept her account of how her clothes were removed, they could not be satisfied beyond reasonable doubt that she was not consenting. The jury was reminded that the suggestion of any physical resistance being offered by the complainant did not appear in her first complaint to the sexual assault nurse on 19 March 2021.
The absence of complaint or distress on 17 March 2021 was highlighted. The risk of detection by others on both occasions was referred to. It was submitted that if the complainant had in fact physically and verbally resisted the sexual activity on 17 March 2021 it was unfathomable that the applicant would do the same thing two days later with the co-worker in the house at the time.
Defence counsel highlighted the complainant’s concern about her husband leaving her, arising from her personal circumstances, and as voiced in the recordings from 19 March 2021. It was clarified that there was no submission that the complainant was completely fabricating her distress on 19 March 2021, but it was argued that the complainant was very young, in difficult circumstances in Australia, and likely became distressed and overcome by her own feelings of guilt, panic, shame and fear about what she had done. The jury was reminded that the applicant had not been challenged by the Crown about the complainant asking him not to send text messages to her about the sexual activity on 17 March 2021.
On the morning of 30 June 2023 a jury note was received, and this was attended to by discussion with the parties’ representatives then response to the jury. The prosecution trial advocate then briefly addressed the jury further to correct a matter raised by defence counsel the previous afternoon in the jury’s absence. Defence counsel then provided her whole closing address to the jury in one session.
The jury was sent out for morning tea, and his Honour raised in their absence the fact that overnight, following the Crown address, defence counsel had requested that the Crown case be left to the jury only on the basis of knowledge of absence of consent, not recklessness or “unreasonable belief”. The correspondence is not contained in the appeal book, but the recorded exchange when the jury retired for morning tea on 30 June 2023 indicates that bases for the application included the Crown evidence being consistent only with actual knowledge, and the factual basis for the other statutory formulations of knowledge not having been put to the applicant in cross-examination. Over the objection of the Crown, his Honour acceded to the application of defence counsel and determined that proof of knowledge of absence of consent would be so confined.
His Honour’s summing up was brief, commencing after the jury’s morning tea break on 30 June and culminating in their retiring to consider verdicts at 12:39 pm. As transcribed (in a format more spread out than the transcript of evidence and addresses during the trial) it occupied 21 pages, and 93 paragraphs.
His Honour provided the jury with a written “Elements Document” which included, in relation to each count, a direction that the Crown was required to prove that the complainant did not consent, and that the applicant knew that the complainant did not consent. Consent was defined in orthodox terms, stating that “A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.” The following written definition of “Knowledge” was provided to the jury as part of the “Elements Document”:
“The Crown is required to prove the accused knew the complainant did not consent to the sexual intercourse.
This is a question about what the accused's state of mind actually was. It is not a question about what you or anyone else would have known, thought or believed in the circumstances. It is what he knew, thought or believed.
You must consider all of the circumstances, including any steps taken by the accused to make sure the complainant consented to the sexual intercourse.”
The oral directions confirmed that in respect of each count the Crown was required to prove beyond reasonable doubt that the applicant knew the complainant did not consent. In the context of drawing inferences and the care required, his Honour told the jury that the Crown asked them to infer or conclude from other facts that the accused knew that the complainant was not consenting to sexual activity.
In taking the jury through the written Elements Document, by reference to count 1, his Honour said:
“Over the page, against the heading “Knowledge”, the Crown is required to prove that the accused knew the complainant did not consent to the sexual intercourse. That is a question about what the state of the mind of the accused actually was. It is not a question about what you or anyone else would have known, thought or believed in the circumstances. It is what he knew, thought or believed, and you must consider all of the circumstances, including any steps taken by the accused to make sure the complainant consented to the sexual touching or intercourse.”
“The fourth element of count one is that Tarun Kumar knew that [the complainant] did not consent. This concerns the state of mind of the accused, not the state of mind of the complainant. The Crown has to prove that he knew that she did not consent to sexual touching. It is not a question of what you or anyone else would have known or thought or believed in the circumstances. You must consider all of the circumstances, including any steps taken by the accused to make sure that the complainant consented to the sexual touching.”
“The law says that the Crown will have proved that the accused knew the complainant did not consent to sexual touching if the accused knew that she did not consent, and that is the inference that the Crown asks you to draw from the evidence”.
“The next element is number 3, that Mr Kumar knew that she did not consent. I should add to what I said about that element in count 1. When considering whether the Crown has proved beyond reasonable doubt that the accused knew that the complainant did not consent to any act, you might ask yourselves how the Crown can prove that the accused knew that the complainant did not consent without an admission by him. The Crown asks you to infer or conclude from the other facts which it has set out to prove that the accused must have known, and in fact, did know that she was not consenting.”
These directions regarding the elements were incorporated (by cross-referencing) when dealing with the other count arising from 17 March 2021, and the jury was reminded that count 3 involved penile/vaginal sexual intercourse, and that the applicant said that it was consensual. The jury was directed orally that the same elements as already directed upon were applicable to the 19 March 2021 charges. His Honour reminded the jury of the relevant act for each of counts 4-6 and the fact that the applicant said these acts were consensual.
The trial judge made clear that the jury was obliged to apply the principles of law as he explained them. There was no instruction provided that the jury should exclude from their consideration anything the prosecution advocate had said, nor that the three meanings of knowledge of absence of consent addressed upon were not in fact available for their application. His Honour referred inclusively on a number of occasions to the prosecutor’s submissions. This included orthodox instruction to give the submissions of each advocate such weight as the jurors thought fit, adding that although these were not evidence, they were carefully presented arguments and should be given due consideration. As noted above, his Honour reminded the jury that the Crown asked the jury to infer or conclude that the accused must have and did know that the complainant was not consenting. There was no instruction that it was only one aspect of the Crown submission that could be acted upon. His Honour reminded the jury of parts of the Crown address without expressly referring to the three meanings of knowledge addressed upon by the Crown.
The jury was given a direction, in accordance with Ewen v The Queen [2015] NSWCCA 117; (2015) 250 A Crim R 544, that as the Crown case was based largely or exclusively on the evidence of the complainant, unless they were satisfied beyond reasonable doubt that she was honest and reliable then they could not find the applicant guilty. The jury was directed that before they could convict the applicant they should examine the complainant’s evidence very carefully to satisfy themselves that they could act upon it to the high standard required in a criminal trial.
The jury was directed to give separate consideration to each count. This was supplemented by a direction indicating that if the accused was found not guilty on any count, particularly if this was because of doubts about the reliability of the evidence of the complainant, then the jury would have to consider how that conclusion affected their consideration of the remaining counts: cf. R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 (“Markuleski”). Direction was provided that the evidence of a witness, including the complainant, may be accepted in whole or in part. The trial judge directed the jury that they were entitled to reach different verdicts between counts if there was a logical reason to do so based on the evidence. The jury was provided with direction regarding the potential for complaint evidence to be regarded as additional evidence that the complainant was assaulted in the way that she described, as well as bearing upon the truthfulness of her account.
“The aggravating factor [of the complainant being under the authority of the applicant] is less serious for the reasons that I have indicated. They were both adults and had engaged in consensual sexual activity in the workplace two days earlier, necessarily minimising the extent to which that factor aggravates the offending.”
“The verdicts of the jury on the 17 March matters were clearly consistent with the rejection of the victim’s account and consistent with the offender’s account that it was consensual. In addition, [defence counsel] pointed to the absence of complaint on 17 March and her return to work as supporting the probabilities that the sex on the first occasion was consensual. She submitted that the evidence of the offender was partially corroborated by the complainant’s evidence which was entirely consistent with consensual activity on the first occasion.
Ultimately [defence counsel] puts that it was not a matter of great significance in the sentencing process, but relevant only to the context in which the activity on the second occasion occurred. I accept that it significantly reduces the effect of the aggravating element of being under authority.”
“Ground one: A miscarriage of justice arose:
(i) from the Crown prosecutor's misstatement of the bases upon which “knowledge” of an absence of consent could be established at law for each offence and/or;
(ii) the trial judge's directions to the jury in relation to “knowledge” by including consideration of what the applicant “thought”, or “believed”, in the particular circumstances of this case.”
A significant focus of the parties’ written submissions was the difference between former s 61HE(3)(c) of the Crimes Act 1900 (NSW), applicable to the applicant’s trial, and current s 61HK(1) of the Crimes Act, regarding the extended definition of knowledge of an alleged victim’s non-consent to sexual activity, based on what may be referred to in both instances for the sake of convenience as unreasonable belief in consent.
The applicable section included in s 61HE(3)(c), as part of the extended definition of when an accused “Knows that the alleged victim does not consent”, “the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.”
The current corresponding provision, s 61HK(1)(c), extends the mental element to include the situation where “any belief that the person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.” An important part of the applicant’s case as initially argued was that a miscarriage of justice was occasioned because the trial advocate appearing for the Crown effectively utilised the second definition (current now, but not applicable to alleged offending in March 2021), which was the wrong provision in relation to unreasonable belief in consent.
Despite the thoroughness of the parties’ submissions regarding the legislative history of this aspect of this element I do not propose to set out the detail of the submissions advanced for the applicant or the respondent on this issue. Ultimately this is because, as explained below, the problem lies in the Crown having addressed on unreasonable belief in consent (and recklessness) at all, when it was determined by the trial judge that these paths to conviction were not to be left, in the context of the trial that was had (including the evidentiary issues and the directions of the trial judge).
Once his Honour determined that unreasonable belief in consent was not to be left as a path to guilt, there was no need to correct the prosecutor’s use of the inapplicable definition of unreasonable belief in consent. The requirement was to ensure the jury did not consider unreasonable belief in consent, or recklessness, at all. If his Honour’s directions sufficiently prevented the jury from convicting on the two extended aspects of knowledge addressed upon by the Crown but determined by his Honour as unavailable, it would not matter which legislative version of unreasonable belief in consent was the subject of the Crown address. If his Honour’s directions did not sufficiently prevent this it would not matter either. There would in this case have been no meaningful difference had the trial advocate utilised the correct definition regarding unreasonable belief in consent (except to the extent that the version addressed upon in fact resonated with the trial judge’s directions).
(4) For the purposes of making any such finding, the trier of fact must have regard to all the circumstances of the case–
(a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity …
(2) Without limiting subsection (1)(c), a belief that the other person consents to sexual activity is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity.
…
(5) For the purposes of making any finding under this section, the trier of fact—
(a) must consider all the circumstances of the case, including what, if anything, the accused person said or did …
The applicant submitted that in context the trial judge’s reference to “all the circumstances” and steps taken to make sure the complainant was consenting – something like former s 61HE(4)(a) of the Crimes Act – broadened the jury’s consideration beyond the applicant’s purely subjective mental state, because it required consideration of what steps he took (and whether they were reasonable) to assess the complainant’s consent.
Particularly before ground 1 was amended, when it focused on the wrong definition of unreasonable belief in consent being addressed upon by the Crown, the respondent relied upon the fact that the trial judge did not allow unreasonable belief in consent to be left for the jury’s consideration, and the fundamental assumption of the common law that in a criminal trial the jury acted on the trial judge’s instructions, citing Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31]-[32], Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [28]-[29] and OKS v Western Australia (2019) 265 CLR 268; [2019] HCA 10 at [28].
It was submitted for the Crown that a miscarriage of justice does not arise merely because the Crown refers to alternative legal bases for satisfying an element which are not ultimately left to the jury by the trial judge, relying on Xu v R [2023] NSWCCA 93 (“Xu”) at [149], [154] and [173].
It was submitted for the Crown that his Honour only directed the jury in relation to actual knowledge of absence of consent. It was acknowledged that the composite expression “knew, thought or believed” should have stopped after the word “knew”. The addition of “thought or believed” was described as “unfortunate”; but it was submitted that what the applicant “thought” or “believed” bore no resemblance conceptually to recklessness, and thus could not have been thought to incorporate the Crown advocate's reference to the applicant having knowledge because he was “reckless” as to consent. It was also submitted that it was not possible that these terms were construed as incorporating the Crown reference to unreasonable belief, as “It is clear in context that his Honour was referring to the applicant’s knowledge or belief.”
Senior Counsel for the respondent submitted that the words “thought or believed” should be taken to attach to the applicant’s state of mind regarding non-consent, not consent; that is, as explaining that the Crown could prove this element if the jury was satisfied beyond reasonable doubt that the applicant had thought or belief that the complainant was not consenting.
It was submitted for the Crown that the phrase “in all the circumstances” could in no way have been thought to incorporate the impugned aspects of the prosecutor’s address. It was submitted that the direction was about the applicant’s state of mind. It was emphasised that the relevant steps were to be taken by the applicant - “to make sure” the complainant consented. It was submitted that “There was no reference at all to recklessness or reasonableness, or any allusion to those concepts.” It was submitted that there was not an evidentiary basis for consideration of these issues, and the Crown had not in fact assisted the jury as to how they were made out on the evidence.
The applicant requires leave to appeal out of time pursuant to rule 3.5(5) of the Supreme Court (Criminal Appeal) Rules. The respondent’s position was that if the Court considers the grounds are fairly arguable, such extension should be granted. I am of the view that such leave should be granted.
Ground 1 does not contend that, in directing the jury as he did, his Honour made a wrong decision on a question of law, to bring the case within the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW). Assuming that his Honour’s determination to direct as he did - specifically, after a defence application that proof of knowledge of absence of consent be confined to actual knowledge - amounted to a decision on a question of law, there were no submissions advanced in this Court as to whether the decision was, or was not, wrong: cf. MDP v The King [2025] HCA 24 at [102]-[103]. The Court is accordingly not called upon to determine whether it is legally erroneous to introduce the concepts of thought and belief into directions regarding actual knowledge of absence of consent in sexual assault proceedings. The arguments were confined to whether a miscarriage of justice was occasioned in this particular trial by the combination of the Crown advocate addressing as he did, his Honour not explicitly directing the jury to disregard two of the paths to satisfaction of the element of knowledge of absence of consent advanced by the Crown, and his Honour introducing the concepts of thought and belief in this context.
Nonetheless, it should be stated that it is not orthodox, and may be misleading or confusing, to refer to the mental states of thought and belief in the context of proof of actual knowledge of absence of consent. Further, knowledge, thought and belief are concepts that are legally, philosophically – and in general usage – related, but distinct.
In criminal law belief in a state of affairs which is true is in some contexts regarded as a supplement to actual knowledge, but involving a less rigorous evidentiary justification for the mental inclination. Thus a person may have a belief that goods he comes to be in possession of are stolen, or that there is a particular container in a suitcase he is carrying into the country, or that the container holds a prohibited drug, without having directly observed the theft or the secretion of the container in the suitcase. These mental states may nonetheless be incriminatory, or indirectly relevant to other incriminatory mental states such as intent (to import, for instance). In this sense “belief” may be relevantly incriminatory but described as “falling short of actual knowledge”: Kural v The Queen (1987) 162 CLR 502 at 504-5.
More pertinently, belief is often associated in the criminal law with a mental state adhering to an incorrect state of affairs, which would be exculpatory if true. The “defence” of an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which an accused is charged innocent is a “basic legal principle of criminal responsibility which informs our understanding, and interpretation, of the criminal law”: (2008) 236 CLR 440; [2008] HCA 25 at [5], [35]; see also (1985) 157 CLR 523.
“[5] … whether, in the case of an error or irregularity affecting an appellant’s trial, an appellate court must be satisfied that the error or irregularity was material before it can be concluded that there was a miscarriage of justice within the meaning of the third limb of [the common form criminal appeal provision] and, if so, how the question of materiality is to be determined.”
“A common circumstance relied on as giving rise to a miscarriage of justice is that there was an error or irregularity in the trial at which the appellant was convicted; that is, some defect in the trial such as a departure from the rules of evidence or procedure, improper cross-examination by a crown prosecutor or a misstatement of fact by the trial judge in the summing up. If such an error or irregularity was “fundamental” in the sense discussed in the authorities then there will be a miscarriage of justice and no occasion to address the proviso separately will arise. The establishment of a fundamental error or irregularity will necessarily mean that there was a substantial miscarriage of justice.
For other errors or irregularities to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred. In this context, “could” is to be understood as meaning “having the capacity to”, and “realistically” distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.” (footnotes omitted)
The need for leave pursuant to rule 4.15 or its equivalents was not addressed by the High Court in Brawn. It was made clear in Brawn at [15] that the appeal was not concerned with situations where a rational forensic decision is made by trial counsel to take a course at trial. However leave is not required here in relation to the address of the Crown advocate. I am of the view that the Crown submissions regarding the three methods of proving knowledge of absence of consent, in light of the evidence in the case, lack of correction by the trial judge, and the directions in fact given by the trial judge, amounted to an irregularity that was material in the sense that it could realistically have affected the reasoning of the jury to a verdict of guilty that was returned in the trial that occurred.
The decision of this Court in Xu, relied upon by the respondent, considered a markedly different situation. There was found to be no miscarriage where the Crown put alternative legal bases for satisfying elements which the trial judge did not leave to the jury. However the impugned submissions were there made in the Crown opening address, and were specifically disavowed in the closing submissions.
I am also of the view that the respondent’s reliance upon the judgment of BQ at [56] does not assist. There was found there to be no realistic possibility that the jury would have employed the line of illegitimate reasoning submitted to have required direction. The illegitimate line of reasoning said to have required direction arose “theoretically” only. The Crown had not made any direct or indirect appeal to the jury to so reason. Here, the Crown advocate expressly informed the jury that it relied upon the three definitions of knowledge of absence of consent as he explained them.
I do not accept the respondent’s contention that the trial judge’s directions ameliorated the problem because they focused on the applicant’s subjective mental state. The problem in this case was not caused because the two impugned aspects of knowledge addressed upon by the Crown were not subjective. As I indicated above, recklessness is always concerned with the subjective thought processes of the accused. As made clear in the majority judgment of the High Court in Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80 at [2] and [36], this is what distinguishes recklessness in the context of the crime of sexual assault from recklessness in other areas of law, and from the objective hue the word may have in ordinary usage, such as indicating conduct that is negligent or careless.
Further, a belief by the applicant that the complainant was consenting is plainly concerned with his subjective mental state. The explicitly hybrid consideration of subjective belief in consent and whether the circumstances meant such subjective belief was not reasonable, under s 61HK(1)(c), was advanced by the Crown and echoed in the trial judge’s directions (analysing the question of his belief, in all the circumstances, and the steps he took to make sure she was consenting).
“Ground two: The jury’s verdict of guilty on Counts 4-6 were not consistent with its verdicts of not guilty on Counts 1-3 and therefore the guilty verdicts are not safe.”
It was not specified by the applicant which limb of s 6(1) of the Criminal Appeal Act was relied upon in relation to ground 2. The ground asserts that the convictions are “not safe”. The applicant’s submissions did not state whether this term was used as in “unsafe” in the way that the first limb of s 6(1) was conventionally described before the decision in Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, or in more broadly describing a miscarriage of justice outside of the principal test enunciated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (“M”) at 493, or in some other way invoking the first or third limb.
The convictions were only submitted to be not safe by virtue of their relationship to the acquittals on counts 1-3, and the authority relied upon by the applicant was MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; and TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 (“TK”) at [130], as followed in Hanna v R [2023] NSWCCA 182 (“Hanna”) at [15], and the cases cited therein.
The relevant test outlined by Mason CJ, Deane, Dawson and Toohey JJ in M at 493 for determination of a first limb complaint is well known and does not require quoting. However their Honours also stated at 493:
“But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be ‘unreasonable’ or incapable of being ‘supported having regard to the evidence’. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.”
The applicant did not use the phrase “miscarriage of justice” in arguing ground 2. The applicant did not contend that compromise was demonstrated by the pattern of verdicts or course of jury deliberations (as was argued in TK, in addition to the convictions being unreasonable and unable to be supported by the evidence), and did not seek a re-trial if ground 2 succeeded (the generally appropriate order where compromise is established). Rather, the applicant sought the entry of verdicts of acquittal upon the upholding of ground 2.
In all the circumstances I am satisfied that the applicant intends to invoke the first limb of s 6(1) of the Criminal Appeal Act, contending that the guilty verdicts are unreasonable and unable to be supported having regard to the evidence (and all the circumstances of the trial, including the acquittals on counts 1-3). However the ground was only argued by reference to the asserted inconsistency. The ground is taken as contending that it was not open to the jury to be satisfied beyond reasonable doubt of the elements of counts 4-6 when it was not satisfied beyond reasonable doubt of the applicant’s guilt of counts 1-3. The applicant submitted, referring to TK and Hanna as noted above, that “The inquiry for the Court in considering ground two is whether there is a rational explanation for the acquittals on Counts 1-3 other than doubts about the complainant’s credibility.”
The applicant submitted that there was no such rational explanation, as this was a single issue case, focused on consent. It was submitted that there was no rational explanation for the acquittals on counts 1-3 other than doubts about the complainant’s credibility, in circumstances where her evidence was that the events occurred only two days apart, in reasonably similar circumstances, with effectively equivalent evidence as to how she conveyed her non-consent to the applicant. It was submitted that her evidence in connection with both sets of charges was virtually identical. It was submitted that the distress observed by the complainant’s co-worker and husband on 19 March 2021, and her complaint to her husband, did not provide an explanation for the inconsistency in circumstances where the issue was consent, and not whether the acts occurred.
The applicant referred to the trial judge’s findings on sentence, set out above at [62]-[63]. It was submitted that there was no logical basis upon which the jury could have considered the complainant to be reliable with respect to counts 4-6 where they rejected her account on counts 1-3. The related contention was advanced that if the jury accepted the applicant’s evidence as to counts 1-3 being consensual, or thought that it could possibly be true, there was no reason in the circumstances of this case for the same conclusion to not be reached in relation to all counts.
The respondent addressed ground 2 on the assumption that the applicant was contending the inconsistency produced convictions that were unreasonable. The respondent relied upon (1996) 190 CLR 348; [1996] HCA 35 (“”) at 366-368 to emphasise that the applicant bears the onus of establishing inconsistency, and that the applicable test is one of logic and reasonableness: if there is a proper way by which the verdicts may be reconciled and there is some evidence to support the verdicts said to be inconsistent, then an appellate court should not substitute its own opinion of the facts for one which was open to the jury; and the jury may simply have followed the trial judge’s instructions to consider separately each charge. The respondent referred additionally to the reference in to the prospect of the jury taking a merciful view of the facts.
“[34] Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.
[35] It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.” (footnotes omitted)
Particular emphasis was placed upon their Honours’ statement that a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, nor a want of confidence in the complainant. It was submitted for the respondent that the co-worker’s observations of the complainant crying at the conclusion of cleaning on 19 March 2021, the complainant’s complaint to her husband when she arrived home from work on that same day, the audio-visual evidence of the complainant’s distress when police attended her home on 19 March 2021, and her distress and complaint to the sexual assault nurse the same day, provided evidence supporting the complainant’s account of non-consensual sexual activity on 19 March 2021 that was not available in relation to 17 March 2021. It was submitted, by reference to MFA, that the different verdicts cannot be taken as necessarily reflecting a view by the jury that the complainant was untruthful or unreliable, and that it was open to the jury to take a cautious approach to the discharge of heavy responsibility by looking for supporting evidence.
The existence of more significant inconsistencies in relation to counts 1-3, as focused upon by defence counsel in closing address, was also relied upon by the Crown as a rational basis for the differing verdicts. The complainant’s evidence regarding what happened on the first occasion was submitted to be qualitatively quite different from her evidence regarding the second occasion. The submission was made that there was a possibility that “the jury considered that the complainant showed some uncertainty with respect to some matters relevant to Counts 1 to 3”. It was submitted that the inscrutability of the verdicts meant that it was not clear whether the jury was not satisfied beyond reasonable doubt of the issue of lack of consent, or of the applicant’s knowledge of lack of consent, in relation to counts 1-3.
The respondent referred to the directions provided to the jury including the requirement to give separate consideration to each count, the Markuleski direction, the direction that a witness may be accepted in whole or in part, and the direction that different verdicts may be returned if the jury thought there was a logical reason to do so based on the evidence. It was submitted that these directions were not, and have not been, criticised; and in circumstances where the closing address for the applicant at trial emphasised the particular weaknesses in the Crown case for counts 1-3, these directions were important in the resolution of ground 2.
“… must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”
If the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred: MacKenzie at 367 (Gaudron, Gummow and Kirby JJ).
For reasons that will be explained, I am of the view that the verdicts do not demonstrate a lack of logic and reasonableness. The evidence in support of counts 4-6 was materially stronger than that in support of counts 1-3. In the circumstances of this case, this provides a basis to conclude that it was open to the jury to convict the applicant on counts 4-6 despite not being satisfied beyond reasonable doubt regarding counts 1-3. In my view this is so even if the doubt regarding counts 1-3 arose because of doubts regarding the credibility of the complainant’s account that she did not consent to sexual activity on 17 March 2021, or her account of how she communicated her absence of consent to the applicant on that date.
The respondent’s contention that a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or there was a want of confidence in her account, relying on MFA, must be accepted. However that does not dictate the approach to be taken where it is discerned that such implication is available. Resolution of grounds such as the present are highly factually specific. On the evidence in this case, the jury may well have had a doubt regarding the complainant’s account of the events of 17 March 2021, because of problems with the credibility of her account of events on that day; but was nonetheless logically and reasonably satisfied beyond reasonable doubt of the core aspects of her account regarding March 19.
In MFA the mixed verdicts were analysed, as well as asserted inconsistencies in the evidence concerning the counts resulting in convictions. The ground of appeal contended that, having regard to the evidence and the verdicts of not guilty, the convictions were unreasonable. Gleeson CJ, Hayne and Callinan JJ agreed with the trial judge that the most likely explanation for the differences in the verdicts was that there was a witness supporting the two counts resulting in convictions, although there were inconsistencies between his account and the complainant’s (that were capable of explanation, particularly as the witness was a twelve year old child): [22]. The evidence in support of the counts resulting in conviction was materially different from the evidence in relation to the other counts, because the complainant was to a significant extent supported by the other witness: [33]. Observation of this immediately preceded the statement at [34]-[35], extracted above at [121]. Their Honours then concluded at [36] that the support offered by the other witness provided an obvious explanation of the differences between the verdicts. It was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on the two counts that were supported by the witness, notwithstanding their unwillingness to convict him on the others.
“We would dissent from the proposition that Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot. It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified. All that Jones decides is that, on the facts of that case, the necessary justification in logic and reasonableness was missing. Jones was a very fact-specific case. Indeed, all such cases are highly fact-specific. In the facts of this case, there is a logical and reasonable basis for sustaining the differentiation that the jury drew.” (footnote omitted)
I do not accept the applicant’s contention that “The inquiry for the Court in considering ground two is whether there is a rational explanation for the acquittals on Counts 1-3 other than doubts about the complainant’s credibility”, if it is intended thereby that the prospect the jury had doubts about the complainant’s credibility regarding counts 1-3 necessitates a finding that it was not open to convict on counts 4-6. Despite the frequency with which this Court has considered a similarly framed question and resolved it in favour of the Crown, by discerning reasons for acquittals other than adverse finding about the complainant’s credibility, the obverse is not a legally binding proposition. Sometimes it seems to be suggested to be so, but such statements are better regarded as obiter dicta. I do not regard them as binding.
For example in Darby v R [2016] NSWCCA 164 (“Darby”) Rothman J (with whom Gleeson JA and Bellew J agreed) stated at [147], in a case where there was an explanation for the acquittals other than by reference to the complainant’s truthfulness:
“Thus, when inconsistency of verdict is raised and the Court is required to deal with the question of whether the guilty verdicts are reasonable or unreasonable, the Court must not only determine whether it has a reasonable doubt, not explained by the jury’s advantage in seeing and hearing the evidence, but must also factor in the circumstance that the jury acquitted on one or some counts and whatever (if anything) can be discerned as the explanation for that verdict, including what insight may be gained into the jury’s thinking and reasoning. So much was also made clear in MFA. Where the basis for the jury’s acquittal is doubt about the complainant’s truthfulness, then that must affect all the verdicts”. (emphasis added, footnotes omitted)
“If the jury were of the view that the complainant was being untruthful, as to the lack of consent in relation to any particular conduct, they could not have found guilt for the charge relating to that conduct. More importantly, once the jury had found untruthfulness in relation to consent as to any of the conduct, it would necessarily have raised a reasonable doubt upon which it would be almost impossible to find guilt on any of the charges, given that it was one course of conduct that was alleged.”
At [159] his Honour stated “For my own part, I do not disbelieve the complainant. There is nothing in the evidence of the complainant, and in particular the cross examination, that raises a reasonable doubt as to her truthfulness.” His Honour stated that there was thus no reasonable doubt that she did not consent, and proceeded to deal with the evidence relevant to the applicant’s knowledge of absence of consent, which was varied. The interaction between the applicant and complainant in a bar before the sexual activity in his office, and in the early stages of the time in his office, provided in his Honour’s view an explanation for the acquittals on the first four counts; namely, failure by the Crown to prove beyond reasonable doubt his knowledge of her lack of consent.
Counts 5, 6 and 7 in that case, for which the applicant was convicted, all occurred after the complainant said she exclaimed to the appellant, “If you do that, it will be rape”, and the appellant allegedly stepped back momentarily before committing the acts constituting counts 5, 6 and 7. His Honour found an acquittal on count 8 not inconsistent, because the complainant may have misinterpreted the occurrence. A conviction for count 9 was quashed because his Honour was not satisfied beyond reasonable doubt that it occurred after the point in time when the complainant said “If you do that, it will be rape.” In conclusion, his Honour stated at [197], “In my view it was not necessary in order for the jury to acquit on Counts 1, 2, 3, 4 and 8, for the jury to come to the conclusion that the complainant was untruthful.”
This case and cases like it which dismiss a complaint of unreasonableness based on mixed verdicts said to be inconsistent, upon demonstration of a reason for the acquittals other than doubts about the complainant’s credibility, do not provide binding authority that in other cases (such as the present), a reason other than doubt about the complainant’s credibility needs to be established before the ground can be dismissed. Similarly, Rothman J’s view that dishonesty in relation to consent as to one sexual act in Darby during a single course of conduct would inevitably have had an impact on the reasonableness of the convictions is not binding in a case like the present. Again, appeals of this nature are highly factually specific.
The relevant passages from the judgment of Simpson J (with which Latham J agreed) in TK, relied upon by the applicant, must be taken in their correct context. Her Honour considered mixed verdicts in a trial regarding allegations of sexual and physical violence by a man against his wife, when they were married. The ground of appeal contended that the guilty verdicts were unreasonable and could not be supported having regard to the evidence and the verdicts of not guilty. As argued, the ground contended compromise, and unreasonableness. Compromise was not demonstrated. Her Honour undertook a detailed analysis of the decisions of the High Court in , , , and this Court in and (2007) 176 A Crim R 42; [2007] NSWCCA 235.
“In determining whether convictions are unreasonable, in these circumstances, the focus of inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis.”
“Before Jones dictates that an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility. If such an explanation can be found, then Jones has no application. Finding such an explanation is not always easy. Determining whether a proposed explanation is a rational one, other than by reason of the complainant’s credibility, can be even more difficult. The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility.” (emphasis in original)
“But it seems to me that, where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open ‘upon the whole of the evidence’. It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury’s thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the complainant’s veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris).” (emphasis in original)
“As I have already mentioned, the Jones approach comes into play only if there is no rational explanation for the diverse verdicts. It is in that circumstance that the court must determine whether the only reason for the acquittals is doubt about the complainant’s credibility (if so, then that doubt must be applied to the remaining counts); or whether the jury has exercised its inherent right to correct what it sees as unfairness in the criminal process; or, finally, whether a divided jury has compromised. ….
This requires the appellate court to examine the evidence for an explanation or explanations, other than scepticism about the complainant’s credibility, for the acquittals.”
The evidence in TK gave rise to explanations that did not reflect adversely on the complainant’s credibility. For example her own evidence relating to some of the incidents charged as sexual intercourse without consent was reasonably equivocal as to lack of consent. Further, in the context of a marital relationship, a doubt regarding the applicant’s knowledge of lack of consent, where there was no such sentiment voiced, was realistic. McClellan CJ at CL agreed with her Honour’s analysis of the matters relevant to each count and conclusions regarding the grounds of appeal and proposed orders, and provided separate reasons in relation to the significance of the relevant authorities. Latham J agreed with Simpson J.
Given that the passages from TK relied upon by the applicant were concerned with when the decision in Jones requires the quashing of convictions, something further should be said about Jones. Jones, which was also analysed in detail by Spigelman CJ in Markuleski, and was footnoted in support of the emboldened proposition stated by Rothman J in Darby quoted above at [132], is not of assistance to the applicant in this case.
In Jones Brennan CJ, and in a separate judgment Gaudron, McHugh and Gummow JJ, set aside guilty verdicts as unsafe and unsatisfactory. The appellant was a gymnastics instructor and the complainant a child he trained. The first allegation resulting in a conviction was alleged to have occurred on a Saturday in the gymnasium after a training session. The allegation founding the count resulting in an acquittal related to weekday training. The appellant’s case was that his assistant was always present at Saturday training and he drove her home afterwards, and his wife and daughter were always present at weekday training and the family went home together. The complainant gave evidence that the assistant must have already left when the offences occurred. The assistant agreed in cross-examination that it was possible that she had left before others on an occasion in February 1991 and caught the train home. The appellant's wife and daughter gave evidence that they were invariably present during the weekday training sessions and travelled home with the appellant afterwards.
Brennan CJ held at 445 that the assistant's concession was the only basis for distinguishing between these two counts, and that such acknowledgment was necessitated by the delay between the time of the alleged events and the giving of her evidence. Direction was required about the danger of convicting without supporting evidence, delay in complaint, and the disadvantage caused to the appellant because delay precluded the assistant’s ability to be certain. Had the assistant been certain about her mode of transport each Saturday in February 1991, she might well have established innocence or engendered a reasonable doubt.
“The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. Having regard to the terms of the second count, we do not think that the complainant's confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count.
It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.” (emphasis added, footnote omitted)
“Given the jury’s finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.”
A five judge bench of this Court sat in Markuleski to consider a line of authority which developed in this Court after Jones. The lead judgment was given by Spigelman CJ. His Honour at [35] noted that several aspects of the reasoning in Jones, pertinent to the issue of credibility of the complainant in that case, often arise in others; including lack of apparent difference in the quality of the complainant’s evidence amongst different incidents, and the availability of contradictory evidence with respect to some, but not all, incidents. His Honour at [36] stated that each such matter raises questions of fact and degree.
His Honour at [47]-[51] discussed the reasoning in the joint judgment in Jones. The passage in the joint judgment in Jones at 453, quoted above at [146], regarding there being nothing in the complainant’s evidence or surrounding circumstances which gave any ground for supposing that her evidence was more reliable in relation to the counts upon which Mr Jones was convicted than it was in relation to the second count, was referred to as a key passage in the reasoning.
A line of authority that developed in this Court after Jones which required review was set out at [52]-[64] of Markuleski. Insofar as these cases suggested that Jones established the proposition that in pure word against word cases a mixture of acquittals and convictions cannot be sustained unless the Court can detect a relevant difference in the quality of the complainant’s evidence, his Honour held that this was not what the High Court intended: [64]-[65]. His Honour confirmed that whether or not the failure of the jury to accept the complainant’s version in one respect ought to have led the jury to have a reasonable doubt with regard to other matters must depend on the full range of relevant circumstances. At [69] his Honour repeated that, although the absence of any relevant difference in the complainant’s evidence was emphasised in Jones, Jones does not require an appellate court to quash convictions in a word against word case unless the differences between verdicts can be explained this way.
At [79]-[82] Spigelman CJ listed examples of frequent ways in which appellate courts after Jones concluded that the jury was not obliged to have a reasonable doubt about the complainant’s credibility in general, when it did not convict on some counts. These included the prospect of the jury focusing on faulty recollection, caution about detail, thinking the complainant generally truthful although possibly exaggerating part of their account; or not disbelieving a complainant, but finding the evidence lacking in particularity. His Honour continued to make reference to the warnings traditionally provided to juries, and the cases where the presence or absence of corroboration has been referred to.
“It is not desirable to lay down any general principle to determine when the impact of contradictory evidence which appears to have led the jury to entertain a reasonable doubt on one or more counts, ought to have so undermined the credibility of the complainant that the jury should have felt such a doubt about other counts, with respect to which there was no contradictory evidence. This Court and other courts have reached different conclusions when faced with such a situation, the result turning on the particular facts of the case.”
“This review of the authorities indicates that a reasonable jury is not obliged to have a doubt about the occurrence of some incidents about which it has only a complainant’s uncorroborated evidence, if they have such a doubt about other incidents whenever, in the latter but not the former case, there is evidence contradictory of, or failing to support, the evidence of the complainant. Any conclusion about this matter depends on the full range of relevant circumstances. Insofar as previous decisions of this Court such as RAT, Barnett, Carbone, Dixon and S, suggest the contrary (and the actual results in those cases depend on their particular facts) they should not be followed.” (citations, provided earlier in the judgment, omitted)
“There is another explanation for the not guilty verdict with respect to count 6 which, in my opinion, is a more likely explanation of the jury’s differentiation amongst the counts. There was a difference between the complainant’s evidence about count 6, which may satisfy the description of a differentiation in the ‘quality’ of her evidence in accordance with the reasoning in Jones, albeit one which raises its own issue of credibility.”
His Honour considered the detail of the evidence which was found to allow for the possibility that the complainant had mistakenly telescoped a number of different events into a single event on the particular day which was the subject of count 6, raising a question as to her reliability, but not necessarily about her honesty: [148]-[151]. After considering other aspects of the evidence, his Honour dismissed the ground contending that the verdicts were unreasonable, or could not be supported.
Wood CJ at CL, acknowledging the extensive analysis of authority undertaken by Spigelman CJ, stated at [205] that the line of authority subsequent to Jones criticised by Spigelman CJ had read too much into Jones, and advanced a principle altogether too rigid. His Honour endorsed the test enunciated in MacKenzie of “logic and reasonableness”. At [212] his Honour said of Jones:
“It does not deny to a jury the right to accept the evidence of a complainant in relation to one event, and to maintain a reasonable doubt about another event described by that witness. It leaves unimpaired the traditional instruction given to juries that they are not obliged to accept wholly or to reject wholly what a witness says, but are free to accept part and to reject part of his or her account – an instruction accepted as perfectly appropriate, if not one that should be given, in KBT v The Queen (1997) 191 CLR 417 at 424, and in KRM v The Queen (2001) 75 ALJR 550 at 558 [36] …”
At [214]-[216] his Honour referred to issues such as lack of certainty or mistake by complainants, which may give rise to legitimate questions concerning the evidence of a complainant which go to the reliability of their recollection, or their full awareness of the facts, without in any way reflecting upon their veracity or honesty. His Honour stated at [217] that decisions which had presumed the demonstration of a fatal blow to the credibility of a complainant where there are different verdicts have drawn too much from Jones. His Honour referred again at [231] to the difference between reliability and credibility, and the advantage of juries in assessing subtle matters such as hesitation or lack of certainty, and at [234]-[235] provided examples of appellate decisions demonstrating different conclusions reached regarding credibility.
Like Spigelman CJ, his Honour dismissed the first ground of appeal, concluding at [238] that the test of logic and reasonableness was one of fact and degree, and that there was an acceptable explanation for the differentiation in the verdicts in this appeal for the reasons explained by Spigelman CJ.
Grove J agreed with the reasons of Spigelman CJ for dismissing ground 1, including his Honour’s analysis of the cases which had purported to follow Jones. Carruthers A-JA agreed with the reasons and orders of the Chief Justice.
Simpson J dissented as to the resolution of ground 1, determining that the evidence in the case and the acquittal on count 6 struck an irremediable blow to the reliability of the complainant, which required translation to the other counts, and held that the decision of the High Court in Jones could not be distinguished: [310], [318], [322], [325]. Her Honour agreed with the exposition of the law and analysis of Jones provided in the reasons of the Chief Justice, Wood CJ at CL, and Grove J.
Turning then to the passages from the judgment of Simpson J in TK relied upon by the applicant, and the numerous occasions on which they are said to have been followed, I am of the view that these were factually distinct cases that do not assist in determining the outcome of ground 2. Appellate reliance upon the approach by Simpson J in TK to describe inquiry on appeal about whether there was explanation for acquittals other than doubt about the complainant’s credibility, in appeals where there was clearly such rational explanation accepted by the Court, often suggested by the Crown, do not assist the applicant in this particular case.
Many of the cases (most of those listed in Hanna, and many others) involve appeals from child sexual assault trials, where the defence case was that nothing occurred. There are often explanations based on ages, dates, lack of understanding of sexual activity, and differences regarding supporting evidence, which may be pointed to; and no reason why the complainant’s credibility (in the sense of veracity or truthfulness) could have varied between counts.
“The correct approach depends on discarding the term ‘inconsistent’ with respect to the verdicts, as it assumes unreasonableness, or some unspecified error, on the part of the jury. Absent further analysis, a conviction on one or more counts on an indictment, accompanied by acquittal on one or more other counts, does not necessarily demonstrate ‘inconsistency’ or any other error on the part of the jury. The critical circumstance said to raise possible error is that both counts depended upon the jury accepting the evidence of the complainant. In such cases, it is necessary to have careful regard to the surrounding circumstances in order to determine whether there is a rational basis upon which it was open to the jury to accept the complainant with respect to one aspect of her evidence, but not with respect to other aspects.”
In Collins Meagher JA stated at [67] that “the question remains whether there was a rational basis on which the jury could entertain a reasonable doubt as to the applicant’s guilt in relation to the counts of which he was acquitted which did not give rise to an equivalent doubt in relation to the remaining counts.”
At [73] his Honour said:
“The jury’s verdict of acquittal indicates that they were not satisfied that taking account of this objective evidence the offending described by the complainant could have occurred on the only remaining ‘sick’ day, 1 August 2016. The question remains whether that conclusion could be put aside when determining whether to accept the complainant’s evidence in relation to the remaining three charges.”
His Honour’s analysis at [74]-[87] of the evidence in that case, in light of the principles set out in the authorities, explains why his Honour determined that there was nothing in the facts or circumstances of that case revealing a rational explanation for the applicant’s acquittals other than doubts about the complainant’s credibility which applied equally to the remaining counts. The ground was accordingly upheld.
Finally, further reference should be made Basten JA’s decision in Ganiji, referred to above. At [9] his Honour stated that “credibility” is not necessarily a single discrete finding made with respect to a witness, with equal levels of conviction or uncertainty in relation to all aspects of her evidence: “The jury is not directed to ask themselves whether they believe her or not; it is asked to determine whether they accept her statements in evidence as to the elements of each offence to be true beyond reasonable doubt.”
The appeal was dismissed in that case because the comparison between the relative strength of the case with respect to the more serious charge, and the evidence with respect to the lesser charge, provided an immediate and powerful basis upon which the respective verdicts of the jury were readily comprehensible: [46].
In the appeal currently before the Court the greater strength of the Crown case relating to 19 March 2021 than for the charges based on events two days earlier leaves the jury’s discernment rational, logical and open. On the facts and circumstances of this case, I am not of the view that a gloss needs to be placed upon the weaker case regarding 17 March by finding that it was not impoverished in a way related to the complainant’s credibility, or that the jury was simply being cautious in relation to its heavy responsibility, or thought the complainant “uncertain”. The complainant’s credibility may very well have been impaired in the jury’s consideration relating to the events of 17 March 2021, but not in a way that necessarily weakened her credibility in a blanket sense for all counts.
The complainant was entitled to consent to sexual activity on 17 March 2021 and not do so two days later. So much is now made clear legislatively by s 61HI(6) of the Crimes Act, but this was plainly also true at the time of the applicant’s alleged offending. Her vulnerability, in light of the circumstances she would likely face if her husband ended the marriage, was a powerful motive to lie about any sexual activity with another man being consensual – at least if there was a prospect of his discovery of her sexual activity. It was also a powerful motive for her to not engage in sexual activity outside of her marriage, and, if she did, to think very carefully about whether she wished for that situation to continue.
No aspect of the sexual activity between the complainant and applicant on 17 or 19 March was detected by anyone. The clear impetus for the complainant’s disclosure of the sexual activity on 19 March 2021 was her very high level of distress on that day, prompting her husband’s persistent questioning of her as to its cause. There was nothing wrong with her other than her response to the sexual activity that had occurred. It was open to the jury to conclude that the complainant’s distress on 19 March 2021 was supportive of her not having consented to the sexual contact on that day – whatever the state of knowledge of the applicant of that was – even though other causes were also raised on the applicant’s behalf.
The Crown’s written submissions raised the proviso. However, orally it was acknowledged that it would be very difficult to apply in a case such as this, which turned significantly on the credibility of a complainant and an accused person. The concluding submission was thus that although this was not a case where the proviso could not apply, it was not pressed strongly.
In my view this is not a case where it is possible to apply the proviso. This is especially so in circumstances where my resolution of ground 2 in favour of the Crown has included contemplation that the jury may well have rejected the complainant’s account of the incidents on 17 March 2021, and may well have accepted (or regarded as reasonably possible) the applicant’s account that so far as he was concerned, the complainant was consenting on 17 March 2021.
Accordingly I propose the following orders:
Extend the time for the applicant to file the Notice of Appeal to the date of filing.
Grant leave to appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) in respect of both Ground 1 and 2, and pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of Ground 1.
Allow the appeal.
Quash the convictions and sentence.
Order that there be a re-trial of the applicant.
Remit the matter for mention at the District Court at Newcastle on 14 August 2025.
**********
Typographical amendment to coversheet and [187].
Kumar
R [2025] NSWCCA 119
(2005) 224 CLR 262
(2024) 279 CLR 124
(2025) 99 ALJR 872
(2008) 236 CLR 440
(2019) 268 CLR 57
(1998) 197 CLR 250
(1985) 157 CLR 523
(1997) 191 CLR 439
(1987) 162 CLR 502
(1985) 159 CLR 507
(1994) 181 CLR 487
(1996) 190 CLR 348
(2002) 213 CLR 606
(2001) 52 NSWLR 82
(2005) 227 CLR 319
(2009) 74 NSWLR 299
(2000) 201 CLR 414
(2010) 241 CLR 237
(2019) 265 CLR 268
(1997) 191 CLR 417
(2001) 75 ALJR 550
The complainant said afterwards the applicant asked if she wanted a coffee and then left. When she was nearly finished cleaning the bathrooms the applicant came back from buying coffee, and he saw her crying. The co-worker had asked her what was happening, and why she was crying. She did not tell her.
The complainant gave evidence that when the applicant returned she could not hold her feelings to herself. He said “Sorry, it never happen again” but she did not believe him and they argued. She said that her voice was loud, and he asked her to go for a drive. She entered the applicant’s car and they travelled to a quiet street corner where they talked. She told him she was going to tell her husband and he became angry. She said that on their return to the house she was still crying, and the co-worker asked her again what the matter was, and why she was crying. She did not tell her because she did not want to talk about what was happening.
The applicant drove both women home. The complainant stated that she could not stop crying. She said that after she was dropped home her husband telephoned her, and although she tried to act normally she kept crying, and he kept asking her what the matter was. She tried to say that nothing had happened but he persisted, and when he asked her whether something had happened at work she agreed that it had, but told him that she would like to talk about it when he came home from work rather than over the phone. She stated that when her husband came home she told him that the applicant touched her. Her husband was upset and insisted on calling the police, who attended their home. The complainant stopped working for the applicant after that date.
The complainant was cross-examined on inconsistencies between her evidence and her police statement as to her position during the sexual acts on 17 March 2021, and how the applicant removed her jeans. The jeans the complainant was wearing on both days were skinny jeans which were fitted (and stretchy) to the ankle, with a button and zipper fly. She confirmed her evidence in chief that the applicant approached her from behind on 17 March, and stated that she was kneeling down on the carpet cleaning the mirror. By reference to part of her police statement she confirmed that she was in that position when she said he pulled her jeans down to her knees. She denied helping the applicant to remove her jeans and said “No, I keep stopping him. I, I tried to stop his hands”. She stated that she “tried to hold his hand and that goes into my body, but his hands is too strong.” She agreed that she had not said this to the police when making her statement.
During cross-examination the complainant described the applicant unhooking her bra during their interaction on 17 March 2021, but when reminded that she had said nothing of this in her evidence in chief said that she could not really remember it.
The complainant maintained that she was kneeling on the ground when the applicant put his penis in her vagina on 17 March, and said (when asked) that she tried to squeeze her legs together in that position to stop him from doing so. She was taken to her first written police statement, in which she said that she was lying on her back in that room during sexual intercourse, and agreed that such description of her position was the correct one. She agreed that her pants were not just down to her knees, they were off. She agreed that she must have laid down on her back from the kneeling position when he approached her. She initially agreed that after she did so she moved her legs apart so the applicant could lay on top of her and put his penis in her vagina, then said that the applicant opened her legs. When asked whether she resisted him she said that she said “Stop”. When asked whether she resisted him with her body she said she did but that he was too strong; although she could not really remember how she had done so.
Further background material was adduced, relevant to the issues of consent, the applicant’s mental state about this, and reason for possible false complaint. In March 2021 the complainant was 21 years old. Her husband was considerably older than her. She moved to Australia to live with him in 2019, then returned to her birth country to introduce him to her family and for their wedding, after which they returned to Australia to live. Her husband worked full-time and supported her financially, including facilitating money being sent overseas to her family, and assisting with a house being built in her birth country in collaboration with her sister. The complainant had applied for a partner visa to live in Australia in February 2020, based on her relationship with her husband. The complainant’s permanent partner visa was still pending (even at the time of trial), and she agreed that she knew that if her relationship with her husband ended she could no longer continue with the application for a partner visa.
The complainant agreed that she and the applicant had become close working together. The houses they cleaned were at different locations, and they spent time talking and getting to know one another as he drove them to their work sites. She spoke to him about personal issues, such as some members of her husband’s family not liking her, and the fact that her husband’s son, who lived with them, caused her some difficulties. She agreed that she had confided in him that her husband’s sister had treated her “like a fly in the milk” and this had caused her distress. She agreed that he spoke to her about things not going well for him at home. She denied a romantic connection with the applicant.
The complainant agreed that the last work event prior to 17 March 2021 was cleaning at a site she and the applicant attended alone in a suburb on the Central Coast some distance from her home. It was put to her, but not accepted (answered either as “No” or as not remembering the proposition put), that during the car trip to that work site she told the applicant she was miserable, they held hands, stroked each other’s hands, she wrapped her hand around his thumb and moved it up and down, and she rubbed his thigh. The proposition was put to her that he told her he had a job coming up in Coffs Harbour and he would have to stay the night, asked her whether she would come with him, and she agreed. She initially disagreed with this, but then said she could not remember and could not be 100 per cent sure.
Detail of the applicant’s case as to how the sexual activity on 17 and 19 March 2021 occurred was put to the complainant, but she did not agree with the propositions that would support it being consensual. She was cross-examined about the fact that she continued to work with the applicant after the first incident. A motive to lie was suggested to her; namely, that she and the applicant were having an affair and she was concerned her partner would leave her if he found out, in circumstances where she was in Australia on a partner visa. She stated that she was worried about her husband leaving her after the incident with the applicant on 17 March; although she said this included worry about not being believed, as well as worry about him leaving her if she was engaged in consensual sex with her boss. She acknowledged she would need to leave Australia if she was no longer her husband’s partner.
The complainant’s co-worker gave evidence that she saw the complainant crying after she finished cleaning on 19 March 2021, and asked her whether she had any problem. The complainant did not respond. The complainant’s husband gave evidence of her distress during a telephone conversation on 19 March 2021 and on his return to their home. He asked her whether something had happened at work, then whether the applicant had done something to her. She said “Sunny raped me.” He described her as hysterical, and he decided to call the police even though she knelt in front of him and begged him not to do so.
The Crown tendered two telephone calls made to emergency services by the complainant’s husband on 19 March 2021, with the complainant audible in the background, and body worn video footage depicting the complainant and her husband when police first attended their home. The complainant appeared highly distressed in these recordings, and worried that her husband would leave her. She was taken to hospital on 19 March although she stated that she did not want to go there, and was examined by a sexual assault forensic nurse. The complainant, who was described by the nurse in her evidence as very distressed, was provided with assistance by a social worker, and complained of sexual assault by her boss on both 17 and 19 March 2021. The complainant and her husband attended the police station the following day and she provided a formal statement to police.
The applicant gave evidence at the trial. He said that because of the nature of the cleaning work he did, there would usually be people other than himself and his staff at the houses when they were cleaning; for instance “electricians, the curtain guys, the joinery people.”
He said that in early 2021 he and his wife were really struggling and fought a lot. He described the complainant as “very bubbly, chatty, alive.” He said that when the complainant first started working for him they spoke about “normal family stuff,” but that over time she started to speak to him about more personal things, such as her sadness arising from her relationship with some of her husband's family members (treating her “like a fly in the milk”). She spoke about her husband’s son, and was upset when doing so. She spoke about her family overseas. They had these conversations in the car or while cleaning, when they were alone. He said “We were always talking to each other, feeling more emotionally connected.” He said that at one point the complainant brought up the topic of sex during a conversation, asking him whether he had “jiggy jiggy last night”. He said he laughed, and told her “It’s long gone.”
The applicant gave evidence about the work day with the complainant just prior to 17 March 2021, on the Central Coast. He said that on the car drive the complainant was sad, saying she was miserable living with her husband's son. His evidence was that he tried to cheer her up by putting his left hand on her right hand to console her. He said they held hands for a while and began touching and stroking each other's hands. He said “I was very excited. I’m starting like something with her. I, I was always emotionally involved with her”. He described the complainant grabbing his thumb and sliding her hand up and down on it, and said “I was sure that she's also - there is spark in, in her about me too”. He said she also put her hand on his thigh and slid it up and down. The applicant said that on the car trip home he told the complainant that he really liked to hold hands and that he and his wife used to hold hands while driving but did not do that anymore. He said the complainant smiled at him. They discussed going to Coffs Harbour for a job and staying overnight in a hotel. He said when she left the car she said “Please don't send me any messages or text about what's happening between us”.
With respect to counts 1-3, the applicant gave evidence that there were other people in the area of the house while they cleaned but nobody in the house itself. He said that while the complainant was cleaning he approached her, “feeling some connection” between them and told her she looked beautiful. He said she smiled and said “Thank you” and he hugged her, which he felt her reciprocate. He said that he left the room and came back again and hugged her from behind. She said “What are you doing?” in a very low voice. He asked her “Is it okay?” and she said “It's totally normal”. He touched her breast and put his hand in her pants. The applicant said that during the sexual contact she was “getting involved” including by “moaning” and “rubbing her back to me”. He said he slid his finger in her vagina, and then he “didn't know how far to go” but that the complainant asked him “Do you want to put it in now?” which he understood to be her asking whether he wanted to have sexual intercourse. He said the complainant walked away from the mirror and removed her pants and underwear and he removed his. She was lying on her back on the floor with her legs bent and apart, and they had sexual intercourse. He said that neither of them said anything. He pulled his penis out of her vagina and ejaculated on the floor. The applicant denied that the complainant said “No” or “Stop” or that she cried. He said the complainant asked him not to send any messages to her as she had a husband and he a wife. He said he felt excited driving home, and felt that the complainant really liked him.
With respect to counts 4-6 the applicant agreed that on 19 March 2021 he approached the complainant in the bathroom and said “You smell so nice”. He said the complainant said “You want to come closer and smell it?”. He described her as “happy and cheeky” and said he went close, hugged her and smelled her neck. He gave evidence that the complainant said “What are you doing? [The co-worker] is close by” and he said “It's okay, very quick”. She said “Okay, hurry up then”. He said he touched her breasts through the v-neck of her shirt on the inside of the bra and then kissed her breast. He said she turned around and started “rubbing herself” into him “especially the private part area”. He said he told her to turn around, and she turned and slid her pants down. He said he had very quick sexual intercourse with her from behind her while she was bending over the bathtub, withdrawing and ejaculating on the tiles on the floor. He gave evidence that the complainant did not say anything; she did not say “stop” or “no” nor refer to his children, and was not crying.
The applicant gave evidence that he said he was going to get a coffee and went outside for about ten minutes. When he returned the complainant “looked really serious” and said, “I'm not coming tomorrow” and “I’m not happy”. They went and sat in his car and talked. He said the complainant said “I'm not happy. We can't be doing this again”. He said that she said she could not look into her husband's eyes, and then said “I feel like you raped me” which made him feel like his world had collapsed. He gave evidence that he said to her “Please don't do this to me, I have kids” and “I don't know why you're saying like that. It's not like I did something without your - forcefully”. He said the complainant started crying, then “sort of calmed down” but said “I want to go home”. He begged her not to do anything “silly”.
The applicant agreed that the co-worker observed the complainant upset, asked her what had happened, and that the complainant did not respond. During cross-examination the applicant agreed the complainant was crying when he drove her home.
There was material before the jury that may have adversely affected assessment of the credibility of the applicant’s account, including his responses in a recorded pretext telephone conversation with the complainant, and his answers when interviewed by police. In light of the nature of the grounds of appeal, the detail of these out of court representations is not important. Evidence was adduced that the applicant was a person of good character.
The development of the relationship between the complainant and applicant, which was partially agreed with, was emphasised. The applicant’s account was submitted to be one that was not embellished, but realistic. The jury was reminded of his good character.
A direction in accordance with Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 and De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 was provided relating to the evidence of the applicant, such that he must be acquitted if his evidence was accepted, or if it might be true or there was thought to be a reasonable possibility that it was true, even if the jurors had difficulty in accepting some or all of it.
The written Elements Document was provided with the agreement of both advocates. There was no request for redirection after his Honour concluded his Summing Up.
Some of the parties’ submissions outlined below can be seen to be referrable to a degree to the issue which I have just described. However both parties sufficiently addressed that which I regard as the real issue, and the relevant parts of their submissions are as follows.
It was submitted for the applicant that the Summing Up did not correct “the Crown error”. His Honour’s references to “knowledge”, and to whether the applicant “knew” the complainant was not consenting, were submitted to not resolve the problem because it was not made clear that his Honour was using the word “knowledge” in a different way to the Crown, and that his Honour was limiting the term to “actual knowledge”, not all three states of mind about which the Crown had addressed as encompassed by knowledge of absence of consent.
Ms Rodger for the applicant submitted that encouraging consideration of what the applicant “knew, thought or believed” and “all the circumstances” in fact unintentionally compounded the issue because of the similarity of this enquiry with the Crown formulation of the three relevant states of mind. It was submitted that the jury may have convicted on the basis that although the applicant believed the complainant was consenting (particularly if he and she had engaged in consensual intercourse on 17 March 2021), this belief was not reasonable in all the circumstances; or on the basis that he was reckless as to whether she consented.
The applicant provided the Court with a schedule comparing former s 61HE of the Crimes Act as relevant to the applicant’s trial, and current s 61HK. Additional aspects of those legislative provisions relevant to ground 1 are former s 61HE(4)(a), and current s 61HK(2) and (5)(a). The relevant part of s 61HE(4)(a) provided as follows:
Further, as to the third statutory iteration of knowledge, it was submitted that whereas the word “believed” appears in the inapplicable provision, s 61HK of the Crimes Act, it did not appear in the applicable provision (although acknowledging that “believing” did). It was further submitted that as the current third aspect of knowledge (wrongly utilised by the Crown at trial) invokes a hybrid subjective / objective test, it was not possible that the jury construed the reference to “thought” or “belief” as incorporating the third state of mind addressed by the Crown, as it was clear that his Honour was referring to the applicant's knowledge, thought or belief.
The parties made conflicting submissions regarding paragraph [61] of the Summing Up, quoted above at [54]. The Crown submitted that this was a reiteration or repetition of the case being concerned only with actual knowledge, whereas for the applicant it was submitted that it failed to deal with the explicit Crown submissions regarding the relevant three aspects of knowledge in this case.
The Crown relied upon rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) insofar as ground 1 related to the trial judge’s directions. To the extent that the Crown advocate’s submissions were relied upon in support of ground 1, and additionally insofar as the ground relied on his Honour’s directions related to the Crown submissions, it was submitted, relying upon BQ v The Queen (2024) 279 CLR 124; [2024] HCA 29 (“BQ”) at [56], that the absence of request for redirection was a strong indication that, in the atmosphere of the trial, there was no appreciable risk of improper reasoning.
In New South Wales prior to 2008 a reasonable possibility that an accused person charged with sexual assault believed the complainant was consenting, even if unreasonably, was exculpatory. It meant the Crown had not proved beyond reasonable doubt either knowledge of lack of consent, or recklessness. The legislative history of criminalising “unreasonable belief in consent” is set out by Button J (Kirk JA and Lonergan J agreeing) in Lee v R [2023] NSWCCA 203 (“Lee”) [135]-[136] and [151]-[153].
In the New South Wales Law Reform Commission’s report on consent, Report 148: Consent in relation to sexual offences, (September 2020) (“Consent”), the Commission used the term “belief” on numerous occasions throughout, in connection with an accused person’s understanding that the complainant was consenting, although they were not. It was not used in connection with an understanding of non-consent.
The comparative schedule of legislation relied upon by the applicant confirms that s 61HK(1)(a) modifies the previous s 61HE(3)(a) slightly by referring to an accused person who “actually knows” a complainant was not consenting, instead of “knows”. This was based on a recommendation by the NSW Law Reform Commission in Consent to adopt the commonly used term and more clearly differentiate between the actual and constructive forms of knowledge recognised in s 61HE(3). It was not intended to change the meaning of s 61HE(3)(a). His Honour did not refer to “actual knowledge” nor what the applicant “actually knew”. The trial judge’s use of the word “actually” in written and oral direction confirmed the jury was concerned with the applicant’s state of mind - “That is a question about what the state of the mind of the accused actually was” – but proceeded to refer to what the applicant knew, thought or believed in all the circumstances, including the steps he took to ensure the complainant was consenting: see above at [50] and [52]. This does not amount to confinement to actual knowledge.
I am not of the view that the paragraph of the oral directions to the effect that the Crown will have proved that the accused knew the complainant did not consent if he knew that she did not consent (see above at [54]) adds anything in support of or detracting from the force of this ground of appeal.
The only time the term “belief” was used other than by the trial judge was the prosecutor’s repeated submission that any belief the applicant had that the complainant was consenting was not reasonable in the circumstances, and this amounted to knowledge of absence of consent. When the trial judge directed the jury that proof that the applicant knew the complainant did not consent raised a question about what he believed, requiring the jury to consider all of the circumstances, including any steps taken by him to make sure the complainant consented, there is a very real prospect that the jury took “belief” in the same way as used by the Crown advocate; not, as the respondent submitted on appeal, as a belief in non-consent. Alternatively, belief in absence of consent suggests a less rigorous mental state than actual knowledge in the circumstances of this case.
If the jury took the reference in his Honour’s directions to what the applicant “thought” as relating to the defence case that the applicant thought the complainant was consenting, in the same way as he believed she was consenting, the same problem would exist. Alternatively, if the jury took the word “thought” as attaching to a mental inclination regarding the absence of consent, it would bear a very strong correlation with the law of advertent recklessness.
Detailed consideration of the meaning of recklessness in sexual assault in New South Wales, in appeals against convictions for offending in contravention of the provision as in force at the same time as relevant to this case but referring to historical developments, was undertaken by Button J (Kirk JA and Lonergan J agreeing) in Lee at [146]-[284] and Adamson JA (Wilson and Faulkner JJ agreeing) in Tuuholoaki v R [2024] NSWCCA 135 at [244]-[276]. The concept is always concerned with the subjective thought processes of the accused. As these cases make clear, recklessness is made out where the accused realises there is a possibility the other person does not consent to sexual intercourse but proceeds regardless (sometimes called advertent recklessness) or where the accused does not consider at all whether the other person is consenting (sometimes called inadvertent recklessness and called non-advertent recklessness in Lee).
If the applicant had a thought that the complainant was not consenting and proceeded anyway (particularly if he took no active steps to ensure she was consenting) he was potentially guilty of (and convicted) due to his recklessness, not because the jury was satisfied beyond reasonable doubt that he actually knew the complainant was not consenting. This would be contrary to his Honour’s determination that this pathway to guilt should not be left, and in the face of the jury not receiving directions that would have been required if recklessness was in fact to be deliberately left by the trial judge.
The complainant’s evidence in relation to non-consent and her demonstration of it on 17 March 2021 was highly inconsistent. Although on the complainant’s version she kept on saying “No” on 19 March 2021, the applicant did not accept this, and this was very much a case where the jury may have not accepted the case for either party but worked out for themselves what occurred: cf. Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65 at [29] (McHugh J), [75] (Kirby J).
The sexual intercourse on 19 March 2021 occurred in circumstances involving a high risk of being caught, with both parties married with loyalties to their spouses. Given that context, particularly if the complainant and applicant had consensual intercourse on 17 March 2021, it is possible the applicant believed the complainant was consenting on 19 March 2021 even if she did indicate some reluctance. If the jury accepted the complainant’s evidence of the applicant’s assurance after the sexual activity on 17 March that it would not happen again, this could have suggested a need for a heightened alertness to take steps to check that the complainant was consenting two days later, even if he believed she was. On the applicant’s evidence, there was not the same level of inquiry by him on 19 March as on 17 March as to whether the complainant wanted to have sexual intercourse. The jury may not have accepted his evidence that she slid her own jeans down on 19 March 2021 given her level of distress so soon after the sexual intercourse occurred.
A miscarriage of justice for the purposes of the third limb of s 6(1) of the Criminal Appeal Act was explained by the High Court in Brawn v R [2025] HCA 20; (2025) 99 ALJR 872, considering the South Australian equivalent to s 6(1). The irregularity in that appellant’s trial was a breach of the prosecution’s duty of disclosure. The High Court allowed the appeal, set aside the appellant’s conviction and ordered a new trial. The appeal raised questions of principle namely:
Where the Crown has invited the jury to follow a particular path of reasoning towards guilt which the trial judge has determined to not be permissible (or even where the nature of the evidence adduced could encourage the jury to do so) it will often be necessary to provide explicit direction against such path of reasoning. That did not occur, and the directions which were provided had the realistic capacity to include rather than exclude the impugned aspects of the Crown address.
It would seem that his Honour intended to underscore that it was the subjective mental processes of the applicant that were relevant, as the respondent has argued in this Court. It would be understandable for trial counsel to have taken his Honour’s directions that way. The narrowing of the Crown case on knowledge of lack of consent, direction to the jury, and the jury retiring to consider its verdicts all occurred very quickly. The trial advocate appearing for the Crown had sought resolution of how the jury would be directed as to the elements before he addressed, but his Honour required him to address instead immediately upon the conclusion of the evidence. It would have been better had this legal discussion occurred prior to addresses.
To the extent that ground 1 as amended is concerned with the trial judge’s directions, and there was no request to direct differently, I am of the view that leave pursuant to rule 4.15 should be granted. Defence counsel had clearly articulated the position that the method of proof of knowledge of absence of consent should be limited. The resolution of this issue, summing up, and the jury retiring to consider its verdict occurred very quickly, as I have said. With the benefit of hindsight, and the objective comparison of his Honour’s directions with the Crown address, it can be seen that the jury was not sufficiently directed to disregard the two methods of proof of knowledge the Crown had addressed upon. There was objectively no forensic advantage in not having this made sufficiently clear to the jury. The judicial directions are intertwined here with the miscarriage caused by the Crown address, and raise significant problems, such that leave should be granted.
One aspect of his Honour’s directions which potentially ameliorated the problem, but which did not receive attention in submissions in this Court, was the Liberato direction referred to above at [60]. His Honour directed the jury to acquit if there was a reasonable possibility the applicant’s evidence was true. However in context the jury would have likely taken this as relating to the applicant’s evidence of what occurred, rather than specifically as to his belief in consent. As I noted above, there is a real prospect in this case that the jury did not accept as reasonable his version of what occurred on 19 March 2021, such as the complainant removing her own jeans, and being “happy and cheeky” when he approached her, given her distress so soon after the brief sexual activity concluded. I am in all the circumstances not of the view that the Liberato direction ameliorated the problem.
In conclusion, I am of the view that the Crown advocate’s submissions regarding knowledge of lack of consent, in the context of the evidentiary issues in this trial and his Honour’s repeated references to the concepts of thought and belief, and failure to direct the jury that the constructive and less demanding definitions of knowledge addressed upon by the Crown were not to be utilised, gave rise to a miscarriage of justice.
Ground 1 should be upheld. The proviso should not hinder the quashing of the convictions, for reasons explained further after considering ground 2.
The respondent relied upon the judgment of Gleeson CJ, Hayne and Callinan JJ in MFA at [34]-[35] as follows:
McHugh, Gummow and Kirby JJ also placed reliance upon the support of the witness for the counts resulting in conviction. It was accordingly held impossible to conclude that the differentiation in the verdicts constituted an affront to logic and common sense or was unreasonable: [87], [89]. At the conclusion of this judgment their Honours confirmed that the Court was speaking with a single voice about the essential issues decided in the appeal. Their Honours stated at [89]:
Her Honour concluded in TK at [128] that the inquiry is not confined to “the whole of the evidence” but incorporates “all of the facts and circumstances of the particular case” which is wide enough to include matters outside the evidence, such as the impact on the reasonableness of the verdicts of guilty of what may be discerned to be the explanations for the acquittals. Her Honour then stated:
Given this state of the evidence, and absence of warning about it, his Honour found that the verdict on the first count was unsafe and unsatisfactory. There were additional problems in relation to a third count, which had resulted in a guilty verdict. Gaudron, McHugh and Gummow JJ reasoned similarly at 454-5 regarding the impact of delay. At 453 their Honours also stated:
At [99] his Honour held:
There are a great number of appeals raising issues such as those in ground 2. Consideration of a few examples confirms that the circumstances in each case must be considered closely. The complainant in Hanna was a child, and the defence disputed that the alleged sexual intercourse occurred. The ground of appeal was that in all the circumstances the three guilty verdicts were unreasonable and unsupported having regard to the evidence and the six not guilty verdicts. The inconsistency point was a minor aspect of how the appeal was argued and determined, and there was an obvious basis (doubt about age) for the acquittals. The acquittals thus fell far short of any “affront to logic and commonsense” with reference made to MacKenzie. The gravamen of the appeal was whether the convictions were unreasonable in the orthodox sense, upon the whole of the evidence.
The decisions referred to in paragraph [15] of Hanna, said to have followed Simpson J’s analysis at [130] in TK, included Collins v R [2020] NSWCCA 198 (“Collins”), five cases referred to in Collins at [13]-[14], and two other cases.
In NW v R [2023] NSWCCA 134 the complainant was a 15 or 16 year old child, and the defence case was that the sexual contact as alleged had not occurred – although there was some acceptance of intimate contact and communication, and a possibility of consent or absence of knowledge of lack of consent also raised on the evidence. At [47] Meagher JA (with whom Button and Wilson JJ agreed) found that a doubt about the applicant’s knowledge of lack of consent provided a basis for the acquittals which did not reflect upon the complainant’s credibility.
In Walker v R [2019] NSWCCA 4 the ground asserted that the convictions were unreasonable and unable to be supported having regard to the evidence and the acquittals. In that case, unreasonableness was only materially argued on the basis of inconsistency, and that was the focus of this Court’s determination. The acquittals on four counts were explained by Hoeben CJ at CL, with whom Rothman and Price JJ agreed, on the basis of doubt regarding the relevant time frame, and on another count about the applicant’s knowledge of lack of consent, “while they generally considered the complainant to be a truthful witness”.
In Cabot (a pseudonym) v R [2018] NSWCCA 265 Leeming JA (McCallum and Bellew JJ agreeing) stated at [58]: “If a rational explanation for the acquittals can be found, without casting doubt over the complainant’s credibility, then the verdicts are not unreasonable: R v TK at [128], [130].” The point was argued in a very qualified way, with the primary focus of the appeal the contention that the verdicts were unreasonable in the orthodox sense.
In TB v R [2019] NSWCCA 224 at [106] White JA, Harrison J as his Honour then was and R A Hulme J agreeing, dismissed the ground of appeal relying on asserted inconsistency where the complainant was a child, and the acts alleged were denied. If the jury had a doubt regarding the year in which the incident resulting in acquittal occurred, it did not in the circumstances of that case mean that it was not open to be satisfied beyond reasonable doubt of the relevant time frame in relation to the other counts.
In AH v R [2019] NSWCCA 152 at [64] (Simpson AJA, Button and Lonergan JJ agreeing) the jury had acquitted on count 2 (alleged penile penetration in a swimming pool), where the jury convicted on count 1 of digital penetration on the same occasion. This was the first occasion of misconduct alleged, and the jury convicted in relation to sexual allegations later in time. At [64] her Honour stated that this acquittal on count 2 was not a reflection on the complainant’s credibility, but may well be explained by her lack of sexual experience (being the first event in time), the relatively sparse detail provided, the complainant not reporting it in the initial complaint, and a responsible determination to give the applicant the benefit of the doubt.
Cases where Simpson J’s approach in TK has been followed and convictions quashed do not assist the applicant either. In Collins the complainant was a child, and it was disputed that sexual contact as alleged had occurred. There were four alleged occasions of offending, with one occasion (when the complainant was home sick from school) giving rise to three counts, being the counts resulting in verdicts of not guilty. The applicant was found guilty in relation to the other three counts. The Crown case was that the “sick day” offending occurred on a particular day, or not at all. There was evidence suggesting that the applicant was at work on that date, although there was forensic disadvantage caused to him by the delay in being informed that it was the particular date that the Crown settled on as the sick day incident. The precise movements of the applicant on the other date on which the complainant was home sick from school, about which he was notified at an early point in time, were able to be demonstrated by CCTV footage that he obtained. This showed that he was at work the whole time the complainant’s mother was at work. In relation to the date the Crown finally relied upon, the window of opportunity was very narrow, but not demonstrably impossible as with the first selected sick day.
Meagher JA (with whom Wilson and N Adams JJ agreed) referred with approval to paragraphs [128] and [130] of Simpson J’s judgment in TK and, as noted in Hanna, referred to a number of cases in which these had been followed. His Honour also referred with approval to the judgment of Basten JA in Ganiji v R [2019] NSWCCA 208 (“Ganiji”) (Button and Lonergan JJ agreeing) where his Honour said at [13]:
There was nonetheless a reasonably plausible case for consensual sexual activity on 17 March 2021. The applicant’s account of their developing closeness was partially agreed with by the complainant. There was no demonstration of distress, and no complaint, on that date. The complainant’s evidence relevant to how the sexual activity occurred – particularly those aspects of it bearing upon non-consent and her expression of this – was replete with important inconsistencies and inadequacies.
It was open to the jury to take the view that the complainant did consent to the sexual activity on 17 March 2021 (or that the prosecution had not proved beyond reasonable doubt that she had not), but that she was not happy about this afterwards, and this resulted in her resolve that it would not happen again and the applicant’s promise it would not occur again. It was open to the jury to be satisfied beyond reasonable doubt that she did not change her mind about this on 19 March 2021.
Importantly, the complainant was required to answer questions by medical practitioners and police about her sexual contact with the applicant against her wishes. She indicated in the strongest of terms to her husband that she did not want the police contacted (begging on her knees that he not call them). Being required nonetheless to engage with the authorities, the complainant was inevitably going to be asked whether the alleged sexual assault on 19 March 2021 was the first occasion of sexual contact with the applicant. She could have lied and said no. Had she engaged in consensual sexual activity on 17 March 2021 she could have disclosed this; but the clear reasons to lie about this were present when she was forced to engage with the authorities about what had occurred between her and the applicant.
I am not intending to indicate a determined view as to how the jury did reason. The jury may have generally believed the complainant but given the applicant the benefit of the doubt regarding his knowledge of absence of consent on the first occasion. However the trial judge’s satisfaction on the balance of probabilities that the sexual activity on 17 March 2021 was consensual was clearly open on the face of the transcript; and his Honour had the benefit of seeing and hearing the witnesses. For the reasons explained, I am not of the view that this Court needs to find an alternative explanation for the acquittals before ground 2 may be dismissed.
Unlike cases like Jones, and Collins, the evidence supporting counts 4-6 was materially different, and stronger, than the evidence supporting counts 1-3, and there is reason to see the complainant’s account as more readily accepted on counts 4-6. There was nothing illogical or unreasonable in finding the first three counts not proved beyond reasonable doubt, and finding counts 4-6 so proved – even if the doubt regarding the events on 17 March 2021 involved a negative finding as to the complainant’s credibility or honesty regarding the events of that day. Any such view was required to be taken into account in determining whether the Crown had proved counts 4-6 beyond reasonable doubt, but it did not require a blanket rejection of the complainant’s evidence. The directions provided to the jury were important. The difference between verdicts in this case does not persuade me that it was unreasonable to convict the applicant of counts 4-6.
Ground 2 should be dismissed.