Lenior v R

Court of Criminal Appeal (NSW)|2023-09-01|Before: Ward P, Harrison J, Dhanji J, Dhanji JJ

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was tried before a jury in the District Court for five counts of sexual offending: count 1 was sexual touching contrary to s 61KC(a) of the Crimes Act 1900 (NSW) (Crimes Act); count 2 was digital penetration without consent contrary to s 61I of the Crimes Act; count 3 was penile penetration without consent contrary to s 61I of the Crimes Act, count 4 was cunnilingus without consent contrary to s 61I of the Crimes Act; and count 5 was attempted fellatio without consent contrary ss 61I and 344A of the Crimes Act. The applicant was found guilty of counts 3 to 5. The applicant sought leave to appeal against the convictions for counts 3 to 5 on the basis that the verdicts of counts 3 to 5 were unreasonable and could not be supported having regard to the evidence and acquittals for counts 1 and 2. Held (Ward P, Harrison and Dhanji JJ agreeing) granting leave to appeal, but dismissing the appeal: (1) Having considered the evidence that was before the jury in relation to each of the five counts and focussing on both the acquittals and the guilty verdicts, there is a rational and logical explanation for the differences in the verdicts: [135]-[136] (Ward P); [140] (Harrison J); [143], [145]-[146], [152]-[153] (Dhanji J). (2) It was open to the jury to have understood from the complainant's evidence that she had acknowledged that the applicant may have believed that she had consented to the initial sexual activity, due to her lack of physical resistance. Therefore, the jury may have had a reasonable doubt as to the applicant's knowledge of the complainant's lack of consent for counts 1 and 2: [136] (Ward P); [140] (Harrison J). (3) Any inconsistencies between the complainant's evidence and the Crown witnesses' evidence do not enliven a reasonable doubt: [137] (Ward P); [140] (Harrison J); [152] (Dhanji J).

JUDGMENT

WARD P: The applicant (Oscar Lenior) was tried before J Smith SC DCJ and a jury of twelve in the District Court in Armidale in August 2022 on five counts relating to alleged sexual offences against the complainant on 12 July 2019.
The five counts on the indictment were as follows: Count 1: Sexual touching contrary to s 61KC(a) of the Crimes Act 1900 (NSW) (Crimes Act). Count 2: Sexual intercourse (digital penetration) without consent contrary to s 61I of the Crimes Act. Count 3: Sexual intercourse (penile penetration) without consent contrary to s 61I of the Crimes Act. Count 4: Sexual intercourse (cunnilingus) without consent contrary to s 61I of the Crimes Act. Count 5: Attempted sexual intercourse (fellatio) without consent contrary to ss 61I and 344A(1) of the Crimes Act.
The applicant's account was that all that occurred on that occasion was consensual sexual touching and penile-vaginal intercourse. The applicant was acquitted on two of the five counts (counts 1 and 2) but convicted of the balance of the charged offences (counts 3 to 5), being offences of sexual intercourse without consent contrary to s 61I of the Crimes Act.
The applicant was sentenced on 9 December 2022 to an aggregate term of imprisonment for 6 years with a non-parole period of 3 years 3 months commencing on 26 August 2022 and expiring on 25 November 2025. The aggregate head sentence expires on 25 August 2028 (see remarks on sentence, p 14).
The applicant seeks leave to appeal against his conviction. The sole ground of appeal, clarified in both oral and written submissions to this Court as an inconsistent verdicts ground (at [8] and [11] of his written submissions) (AT 1.25), is as follows: Ground 1: The verdicts of guilty on counts 3, 4 and 5 are unreasonable and cannot be supported having regard to the evidence and the verdicts of acquittal returned in respect of counts 1 and 2.
As this ground of appeal does not involve a question of law alone, leave to appeal is required (s 5(1) of the Criminal Appeal Act 1912 (NSW); see Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220 at [2] per Basten JA, with whom Latham and Rothman JJ agreed; Rasic v R [2009] NSWCCA 202 at [12] per Johnson J, with whom Basten JA and RS Hulme J agreed; Mason v R (No 2) [2015] NSWCCA 325 at [5] per Johnson J, with whom Button and Fagan JJ agreed.
The applicant accepts that if he cannot establish the inconsistent verdicts ground then his appeal must fail (see AT 21.41ff). It is not necessary, in light of that concession, to separately address his alternative submission that the verdicts of guilty are otherwise unreasonable on the evidence at trial.

Background

At the outset it should be noted that s 578A of the Crimes Act prohibits the publication of any matter which is likely to lead to the identification of the complainant. Accordingly, the names of the complainant and various of the witness have been anonymised in these reasons. A schedule of the pseudonyms used in these reasons will be made available to the parties but not published with the judgment.
The complainant, then aged 18, and the applicant, then aged 19, were both visiting Armidale on the weekend of 12/13 July 2019 to attend a residential college ball at the University of New England. The complainant was visiting her friend (to whom I will refer as Ms A) and the applicant was visiting his twin brother (to whom I will refer as Mr L). Ms A and Mr L were in a relationship at that time and each had a room at a residential college on campus.
The complainant first met the applicant that night when she went to a hotel with Ms A and another friend (Ms B) and Ms E in the evening of 12 July 2019. Later in the evening, the complainant and the applicant travelled together by taxi back to the College where they went to Mr L's room. Prior to taking the taxi, they had kissed and the applicant had his hand around the complainant's waist. In the taxi, the applicant touched the complainant's breasts. The complainant's evidence is that she pushed his hand away.
The Crown case in summary was that: when the couple went to Mr L's room the applicant lay down next to the complainant and started rubbing her body; that the complainant pushed him away but that the applicant kept touching her (count 1); the applicant then took off his pants and shirt and started rubbing the complainant's body again and inserted his fingers into her vagina (count 2); the applicant pulled the complainant on top of him, grabbed her breasts and penetrated her vagina with his penis (count 3), during which time the complainant tried to push his hands away and told him to stop but he did not and at one stage the applicant had one hand around the complainant's throat and she felt she could not breathe while hitting her body with his other hand; that the complainant continued to say no; the applicant then tried to put his hands between the complainant's legs and he pulled her legs apart, put his face between her legs and licked her vagina; that the complainant kept saying "No" and "Stop" but the applicant kept licking her vagina (count 4); at this point the complainant heard male voices at the door and the applicant stood up to open the door, and that Mr L and another man (Mr M) came into the room and spoke to the applicant and they then left; after which the complainant got up off the bed but the applicant pushed her back down with both of his hands, tried to push her head towards his penis (count 5) and told her to give him "head", during which time the complainant kept turning her face away and saying no and the applicant kept pushing his penis towards her face.
The complainant then left the room and went to Ms A's room where Ms A and Ms B were present. The complainant did not make an immediate complaint to Ms A or to Ms B. However, Ms B's evidence was that the complainant was visibly upset and nodded when asked by Ms B if she had had a "bad experience with a boy". The Crown case was that the complainant did not make a complaint to Ms A because Ms A was in a relationship with Mr L. The complainant also did not make an immediate complaint to her mother, to whom she had sent text messages shortly after the incident (see below). However, the next morning, the complainant told her mother that she had been attacked (see below). The complainant disclosed to her friend (Ms D) the day after the assault that she had been raped and to another friend (Ms C) that she had "gotten with" the applicant; that she wanted it at the start but then she did not; and that it was not OK (see below).
The complainant went to the college ball the following evening but left early and was picked up by her parents at 9.30pm. The following day the complainant went to the police station (where she spoke with Detective Senior Constable (DSC) Harman) and was then taken to Inverell Hospital for an examination (by Dr McIntyre). Some months later, the complainant gave a formal statement to DSC Harman about the incident.
In terms of the timing of the relevant events, it may be noted that the complainant sent a text message to a friend at around 9.45pm on 12 July that she was going home with the applicant (Ex 4) then at 10.11pm a message that "Oscar got us lost at [the College]" (Ex 5). At 11.32pm the complainant appears to have sent or attempted to send a message to Ms A (Ex 5). The complainant sent another text message at 11.34pm, responding to a message from her mother at 11.03pm to the effect that Armidale Police had called and that her wallet had been found at "Maccas". The complainant's response to her mother was that her phone had been on "aeroplane mode" (Ex 3, p 6-7).
In the subsequent chain of messages with her mother (confirming that she had found somewhere to sleep and was in Ms A's room) the complainant sent a message at 11.57pm that included the words "semi want to come home but hopefully tomorrow is better" (Ex 3, p 12).
The messages sent by the complainant to her mother from 11.34pm must have been after the incident (since the complainant's evidence is that her phone was on aeroplane mode during the incident). At 4.07am on 13 July 2019, the complainant sent her mother a message saying that she had her wallet, they had sorted the beds and that "So I'm all happy now" (Ex 3, p 13).

Summary of evidence

Evidence was called at the trial from the complainant, her friends, her mother, and the police officer and doctor who had examined her.

Complainant's evidence

The complainant gave evidence of her arrival at the residential college at about 6.30pm on 12 July 2019; that she went straight to Ms A's room where she saw another school friend (Ms B) and met another female (Ms E); and that the group shortly after caught a bus to a hotel in town where Ms A introduced her to Ms A's boyfriend (Mr L) and the applicant (28/03/22; T 16-17). At around 9pm, after a number of drinks, the complainant suggested to her school friends that they go out to get something to eat. They declined but the applicant said that he would go with her (29/03/22; T 22-23). The two left the hotel and went to McDonald's where the complainant (and the applicant - see his evidence below) ate some food; and when they left McDonald's the applicant put his arm around the complainant's waist, pulled her into him and started kissing her (29/03/22; T 23).
The complainant said that as they were walking back to the hotel the applicant said "Let's go back to college" and she said "No. No, I just want to go back to the hotel" but the applicant started hailing a taxi and told her that her friends were going to come back in 15 minutes and she did not need to go back to the hotel. The complainant said that, as the taxi was pulling up, she said "I don't want to do anything with you. I don't want you to get the wrong idea. I'm not going back to do anything with you" (this being the first of the occasions on which the applicant says she indicated a lack of consent or lack of intention to consent to sexual activity). The complainant said that the applicant said something like "Oh, I'm paying for it. Like, it's here now, you have to get in" (29/03/22; T 24). The complainant said that the applicant got into the taxi first and she got in. (The applicant's version of events contradicts this.)
The complainant's evidence was that, in the taxi, she said she was tired and she put her head on the applicant's shoulder; that, as she did that, the applicant started grabbing her breasts "pretty violently"; and that she sat up, started pushing him off, and said "You have the wrong idea. I'm not doing anything with you" (the second indication of lack of consent or intention to consent to which the applicant points) (29/03/22; T 24.31-47). The complainant then realised that she did not have her wallet with her and said that they needed to go back for her wallet but the applicant said that she could just text one of her friends and they could get it. The complainant said that when she leant forward and started to ask the taxi driver to go back, the applicant said "No" and pointed and said "Oh, just, just keep driving. I'm paying for it" (29/03/22; T 24.47-25.2).
As noted above, at 9.45pm the complainant sent a text to one of her friends "Going home with Oscar" (Ex 4), which points to the taxi ride being sometime around then.
The complainant's evidence was that she had no idea where they were when they got out of the taxi at the College and she did not recognise anything; that the applicant seemed to have an idea; that she followed the applicant and, when he suggested "Let's go back to my car", she said "No. I'm just here to sleep, like just take me to [Ms A's] room" (the third indication of a lack of consent or intention to consent to sexual activity relied upon by the applicant (29/03/22; T 25.13-23). The complainant said that: she followed the applicant at a distance of about 40 metres; she lost sight of the applicant a couple of times; all the lights were out, except glowing exit signs; and there was no one around (29/03/22; T 25.25-38).
The complainant said that she followed the applicant into a room, which she initially assumed was Ms A's room but that she could tell from the room layout was not Ms A's room; that there was a king single bed in the room and mattresses on the floor; and that she walked in and sat on the edge of the bed (29/03/22; T 25.41-27.45). The complainant said that she was holding her phone and texting her friends, asking when they would be back; that the applicant asked her to give him her phone and when asked why said that it was "So you don't get distracted"; and that she said "Distracted from what? I'm not here to do anything with you, I'm just here to sleep" (the fourth indication of lack of consent or intention to consent to sexual activity to which the applicant points) (29/3/22; T 28.1-10). The complainant said that the applicant then turned away and that she stayed on her phone "for a bit longer, like a few more minutes, like probably ten minutes" and then said "I'm tired, I'm just, I'm just going to go to sleep". The complainant said that she put her phone on the bedside table and lay down on the bed on her stomach. It may be noted, by way of context that the complainant had travelled to Armidale following attendance at university games on the Gold Coast. The complainant said that she had not slept at all on the Thursday night and that she had not slept during the day on the Friday (see 29/03/22; T 28.15-31).
As to count 1, the complainant's evidence was that the applicant came over and lay down on the bed next to her; that the applicant was on his side facing her and that he put his hand under her left side and started touching and rubbing her body (29/03/2022; T 28.42-45). The complainant said that she "just pushed his hands off" and said "I'm just here to sleep, like, I don't want to do anything with you" (29/03/2022; T 29.1-2) (the fifth indication of lack of consent to which the applicant points) and that she said "I don't want to do anything, like can you just take me to [Ms A's] room" (29/03/2022; T 29.20-21) (the sixth indication of lack of consent to which the applicant points). The complainant said that the applicant continued to rub her body and then started to put his hand towards the waistband of her tracksuit pants; that she was then sitting up on the bed and said that she just wanted to go to Ms A's room (29/03/2022; T 29.21-24).
The complainant said that the applicant said "No, like, stay here" and that she said "I will go to Ms A's room, I just, I just want to sleep" (29/03/22; T 29.24-26). The complainant said that the applicant did not say anything; that she said to him that he did not have to get up and asked that he just tell her where to go; that the applicant did not say anything in response and she said "I don't understand, why can't you show me where [Ms A's] room is?" and "I don't understand, like, I don't understand"; that the applicant did not say anything, so she then lay back down on her stomach again; and the applicant put his hands back under her and continued to rub her body, and she continued to say "Just take me to [Ms A's] room. I don't want to do anything" (the seventh indication of lack of consent to which the applicant points - 29/3/22; T 29.28-35). The complainant said that, when the applicant was rubbing her body, she was pushing his hands off and saying "No, no, stop" (the eighth indication of lack of consent to which the applicant points - 29/3/22; T 29.38). I note that it is apparent from the transcript that the complainant, when giving evidence of pushing and the like, accompanied this oral evidence with hand gestures.
The complainant said that the applicant then got up and went across to the middle of the room and started to undress himself; that the applicant took his pants off and then came over to her and knelt beside the bed so that his body was in line with her; and that he said "Take my shirt off," and she said "No, like, I don't want to do anything with you" (the ninth indication of lack of consent to which the applicant points) (29/03/22; T30.4-16). The complainant said that the applicant got back up and went back to the middle of the room and continued to undress; that the applicant took his shirt off, and then came back to the bed and pulled her tracksuit pants down (29/03/2022; T 30.16-19).
The complainant said that the applicant was still facing her on his side and then he started rubbing her body again; and that she was still saying "I don't want to do anything with you" and "Stop", but the applicant continued (29/03/22; T 30.25-27).
As to count 2, the complainant said that (after the applicant had pulled her pants down and started rubbing her body again (29/03/2022; T 30.19-27)) she was still saying "I don't want to do anything with you" (the tenth indication of lack of consent to which the applicant points); (29/03/22; T 30.29); the applicant slid his hand down her underpants and pushed his fingers inside her vagina (29/03/2022; T 30.27-30). The complainant said she was lying on her back and the applicant continued to push his fingers in and out of her vagina; and then the applicant started trying to kiss her face and she was moving her face away from his (29/03/2022; T 30.33-40).
As to count 3, the complainant said that what happened next was that: the applicant rolled on his back, grabbed her waist and pulled her on top of him (29/03/2022; T 30.47-49); the applicant started rubbing her breasts "really aggressively and painfully" and she started pushing him off and saying "Stop" and "You're hurting me, stop" and that she "just tried, like, to fight his hands off" (29/03/2022; T 31.4-7). The complainant said that she felt his penis penetrate her vagina and at that point the applicant grabbed her throat with his right hand and pulled her neck down so it was against his chest, so he was choking her (29/03/2022; T 31.13-16). The complainant said that the applicant was hitting the right side of her buttocks with his left hand; that his hand was still around her throat choking her; and that she was saying "Stop, stop" and "No" over and over again (29/03/2022; T 31.16-24); and that he continued to hit her and choke her again.
After a short break during her evidence (presumably to allow the complainant to regain composure) the evidence resumed and the complainant said that the applicant continued to hit her and choke her and he continued to have (penile/vaginal) sex with her (29/03/2022; T 33.25-29). The complainant said that she was trying to get the applicant's hands off her throat, and that she had her right hand on her buttocks, trying to protect her buttocks; that she was not able to move the applicant's hand from around her throat; that the applicant was choking her harder and harder and that, a couple of times, she tried to use both hands but that did not do anything (29/03/2022; T 33.32-45). The complainant said that she was saying "I can't breathe" and she was still saying "No"; and that this continued for "maybe 10 minutes", and then the applicant suddenly threw her off him (29/03/2022; T 33.48-34.2).
As to count 4, the complainant said that she thought the applicant had "finished" and she went to get up off the bed, and that the applicant put his left hand over her stomach and pushed her back down on the bed and said "I'm going again"; and that she was saying, "No, no" (29/03/22; T 34.8-17). The complainant said that the applicant said "You're a fucking slut", and "You're a fucking bitch." "If you don't let me go again, I'll just get some other slut too [sic: to]. I can get anyone"; that she said "Good" and the applicant said "Fucking bitch"; and that he "came on top" of her and she had her legs together. The complainant said that the applicant was leaning over the top of her and had his hands between her knees and was trying to open her legs and saying, "You have to give me access" (29/03/2022; T 34.22-27). The complainant said that she kept saying "No" (29/03/2022; T 34.33); that then he used his weight to open her legs, that he had either arm inside her thighs and that he brought his face down and started pushing his tongue inside her vagina; that she was pushing his face and saying "No" and that he continued to lick her vagina (29/03/2022; T 34.33-38), during this time she was telling him "No" (29/03/2022; T 34.37).
The complainant said that then she heard people trying to come into the room; that she thought it was Mr L trying to get into the room saying "Let me into my room"; that the applicant was saying "Fuck off"; and that eventually the applicant let Mr L and another boy who she thought was Mr N into the room, and she pulled a sheet over herself (29/03/2022; T34.43-35.12). The complainant said that Mr L and another male came into the room and were getting things (some drinks she thought) and that she stayed under the sheet putting her underwear back on; and then after not very long they left (29/03/2022; T 35.25-46). The complainant said that she sat on the edge of the bed and looked for her phone; that the phone was not where she had left it; and that she looked up and saw the applicant standing there on a phone (29/03/2022; T 36.2-5).
As to count 5, the complainant gave evidence that: she went to get up off the bed and the applicant turned and came to her and pushed her down with both of his hands so that she was sitting on the edge of the bed; and that the applicant put his penis in front of her face (29/03/2022; T 36.5-15); that the applicant was standing in front of her holding his penis in his right hand and with his left hand he held the back of her head; and that the applicant pushed her head towards his penis and was saying "Give me head, give me head fucking slut" (29/03/2022; T 36.18-27). The complainant said that she was turning her head and saying "No" (29/03/2022; T 36.26-28); and this went on for a short period and then the applicant stopped, turned away and took a step away. The complainant said that she went to get up again and the applicant came back and pushed her down again; that the applicant was holding his penis and said "Sit down and give me head" and that she continued to say "No" and turn her head away (29/03/2022; T 36.33-38).
As to what happened next, the complainant said that the applicant stopped and sat down next to her and was on his phone. The complainant said that she stood straight up and went to the middle of the room and that she kept asking "Where's my phone?" and the applicant ignored her. The complainant said that she started looking for her phone and that she found it buried under clothes; and that she saw that her phone was on aeroplane mode, which she had not put it on (29/03/22; T 36.44-37.8).
The complainant said that she put on her tracksuit pants; that the applicant put his arms around her from behind and pulled her into his lap and she pushed him off and said "No", and he released her; and that she got back up and went to go to get her shoes. The complainant said that, as she went towards her shoes, the applicant pulled her frontwards into his lap and started grabbing her breasts; and the complainant said that she pushed him off and said "No" (29/03/22; T37.9-31).
The complainant then gave evidence (which I do not here need to recount) as to leaving the room and how someone down the hallway (Ms E) showed her to Ms A's room. The complainant said that, when she got to Ms A's room, Ms A was vomiting into a bin and Ms B was standing next to Ms A, filming her. The complainant said that Ms A said to her "Where have you been? We've all been looking for you, the police are looking for you"; and that she (the complainant) burst into tears and sat on the bed (29/03/22; T 38.35-41).
The complainant said that when she came out of the room that she had been in with the applicant, she turned her phone off aeroplane mode and saw that there were messages, and missed calls from Ms A, her mother and a number with no caller-ID (29/03/22; T 39.7-9).
The complainant said that she was crying and sitting on the bed; that Ms A sat to her left and Ms B sat to her right; that she was crying and could not really speak; that Ms B said "Was it a bad experience with a boy?" and that she nodded and continued to cry (29/03/22; T 39.14-20).
Meanwhile, it appears that the complainant's wallet had been found and the police contacted her to arrange for the wallet to be returned. Ms A and Mr L (who by this time was also in Ms A's room) went with the complainant to meet the police who returned her wallet. The complainant's evidence was that she was not "really saying anything" to the police officer who returned the wallet; that she was concerned that if she said something about what had happened Ms A and Mr L (who would have overheard) would go straight to the applicant and tell him what she said to the police; and that she did not "really feel safe" to say anything (29/03/22; T 40.4-49).
The complainant gave evidence as to the rest of that evening, including that a group of four or five boys, including the applicant, came into Ms A's room and that she pretended to be asleep; that she heard the applicant deny that he had sex with her; that someone threw an object at her head; and that she did not sleep that night (29/03/22; T 41.15-42.5).
The complainant then gave evidence as to the following day: she went with others to Ms A's netball game and, when she got back, she called her mother. The complainant said that she started crying and told her mother that the night before a boy had made her do things that she did not want to do and that her mother said that she would come down and pick her up (29/03/22; T 42.10-30).
After she finished speaking to her mother, the complainant messaged Ms C, a school friend who was living in Armidale, and said that she said to her that "Yeah, there was sort of a boy that - who sort of made me do things, do stuff"; and that Ms C told her that she would come and pick her up (29/03/22; T 43.2-17).
The complainant said that, after she spoke to Ms C, another school friend, Ms D, who had just arrived at the college telephoned her and wanted to know where to park her car. The complainant said that she went to the car park and met Ms D and they drove around looking for a spot to park; and that she said to Ms D "I was raped last night". The complainant said that Ms D asked her if she was okay, that she told Ms D that Ms C was coming to pick her up, and her parents were coming to get her that day; and that she told Ms D that the person who had raped her was Ms A's "boyfriend's brother" (29/03/22; T 43.28-44.1).
As to her disclosure to Ms C, the complainant said that she began telling Ms C what had happened and how the applicant was choking her, hitting her, and swearing at her and how she was saying "No", and trying to push his hands off, and that "he just like kept going" (29/03/22; T 44.12-21).
The complainant stayed with Ms C for "pretty much the whole day". Towards the afternoon, they went back to Ms C's house and started getting ready for the ball. The complainant said that she and Ms C had talked about whether or not she should go to the ball and that Ms C had said that she would stay with her the whole night, if she did go. The complainant said that her parents said that they would arrive soon, and Ms C took her back to the college and she went and got her bags from Ms A's room (29/03/22; T 44.25-35).
The complainant said that Ms A helped carry one of her bags and that, as they were crossing the car park, Ms A asked "so what actually happened?". The complainant said that she did not feel comfortable talking to Ms A because of her relationship with the applicant's brother (Mr L); and that she "just sort of brushed her off" and said "Oh I don't know"; that Ms A said "You can tell me" (to which the complainant did not respond) and then that "You know, a rape can get someone into a lot of trouble?". The complainant said that she did not say anything in reply, and just kept walking towards her parents, who had driven into the car park (29/3/22; T 44.35-44).
The complainant's parents drove her to a motel and asked her if she wanted to talk about what had happened. The complainant said that she said that "basically a boy … made me, like, do things when I didn't want to do anything with him"; that it was Ms A's boyfriend's brother and that he hailed a taxi, and she did not say that she wanted to go back with him. The complainant said that she was pretty sure that she told her parents that she was saying "No", and "Stop" but he was continuing to have sex with her; that she told her parents that the applicant had had sex with her but did not tell her parents everything that had happened in the room. The complainant said that she did not tell them about the applicant choking and hitting her; and that the reason she did not tell them was because she knew "it would make them really upset" (29/03/22; T 53.31-54.24). The applicant notes that in the complainant's mother's evidence there was no real detail as to what the complainant told her mother in this conversation (18/08/22; T 205).
The complainant said that she told her parents that she would go to the ball, and they took her back to the college at around 5.30pm. The complainant said that she went back to Ms A's room, and that, when she put her dress on, she saw bruises on her chest (29/03/2022; T 54.32-36). The complainant said that Ms A, Ms D and Ms B were in the room; and she did not tell anyone about the bruises (29/03/2022; T 54.41-4). (The applicant notes that no bruises were visible in the photograph taken of her before the ball (Ex 7)) The doctor who conducted the SAIK (Sexual Assault Investigation Kit) examination noted two small purple bruises on her chest (Ex 1 at 6); said that such bruises may occur any time from 1 hour to resolution (Ex 1 at 13); and that these bruises on her chest may have occurred during the alleged assaults but they may also have occurred at some stage before or after the alleged assaults (Ex 1 at [14]).
The complainant said that, when she got to the ball, she found Ms C and they walked around the ball together; that she did not really drink; and that, after a little while, she decided to leave, and she messaged her parents who came and picked her up. The complainant left the ball at about 9.30pm (29/03/22; T 55.14-22).
The next morning the complainant's parents took her to the police station. The complainant told DSC Harman: that there had been an incident on the Friday night where she had "unconsensual" sex; that at the start it was consensual but then she was not consenting; that the applicant was the person involved; that she had been saying "Stop" and "No" and that the applicant had been calling her a "fucking slut" and "bitch". The complainant's evidence was that she remembered DSC Harman asking her if the applicant hurt her and that she said "Yes" (29/03/22; T 55.26-50).
Significantly in my opinion, when asked why she told DSC Harman that the sex had started off "consensual", the complainant said that it was because she thought that: because I had stopped, like, physically resisting him, like, pushing his hands off, that that would be perceived as, like me - as me consenting. [29/03/22; T 56.4-6]
After the complainant spoke to DSC Harman, arrangements were made for her to do an SAIK examination at Inverell Hospital and for her to speak to a sexual assault counsellor. The complainant's evidence was that, at that point, she did not feel supported enough to make an official statement; that she was also worried about the backlash from Ms A and how it would affect Ms A's relationship with Mr L; and because, weeks before she went to Armidale, Ms A had been saying that she was trying to set her up to go on double dates with her and the applicant (29/03/22; T 56.8-21).
The complainant's parents then took her to lnverell Hospital where the SAIK examination was conducted (29/03/2022; T 56.30-35). The complainant could not remember what she said to them about what had happened (29/03/2022; T 56.39-44). Dr McIntyre performed the SAIK examination on the complainant (19/08/22; T 247.48-50).
Subsequently, after contact with the police in which the complainant had said she was not really sure what she wanted to do, the complainant again contacted the police and made a police statement on 6 July 2020. The complainant explained in her evidence that she decided to make a formal statement because she had started seeing a sexual assault counsellor who taught her about coercion, and that made her understand that it was not consensual because of coercion (29/03/2022; T 58.18-27)
The complainant's evidence was that at no time did she consent to the applicant sexually touching her in the room nor to any of the sexual activity the subject of the charges (29/03/2022; T 58.29-46). The complainant said that she did not call or text her parents when she got out of the room, because it was the middle of the night and they would have been really worried and there was not much they could really do from where they were (29/03/2022; T 65.32-38). When the applicant's account (see below) was put to the complainant in cross-examination, she denied that the only sexual acts that took place were the sexual touching and penile vaginal intercourse (17/08/22; T 103.9-24).

Other Crown witnesses

The Crown called seven witnesses regarding the complainant's distress and/or complaint made within the three days following the incident.

Ms B

Ms B, a school friend of both the complainant and Ms A, who had also travelled to Armidale to attend the college ball, gave evidence that on the night of 12 July 2019 when the complainant came back into Ms A's room, the complainant was "upset" and "crying", that she did not want to talk much, she wanted to go to bed (18/08/22, T 179.9-17); that, later on in the night, the complainant was talking to her and Ms A and that the complainant said that she had come back from the pub with the applicant and then they had had sex and that he was being "very rough" and was "saying rude things to her"; and that the applicant was "complaining that she didn't want to keep going" (18/08/22; T 179.27-34). Ms B said that the complainant did not say anything, specifically, about what the applicant did to her, just that he was being "very rough". Ms B said that the complainant was "sobbing and crying" when she was telling her that. Ms B said that the complainant said that she wanted the applicant to stop and told him to stop (18/08/22; T 179.36-47).
Ms B's police statement made on 14 July 2020 included the statement that Ms B thought it may have been around 10.30pm to 11pm when she left the pub with Ms A, Mr L and another man ([8] of Ms B's statement).

Complainant's mother

The complainant's mother gave evidence as to the telephone call she received on the morning of 13 July 2019 from the complainant; that she asked the complainant how everything was going and the complainant "started crying and said that she'd been attacked and that she had been taken, or had been forced into a room and that she'd been forcibly held down and hurt"; and that the complainant said that she had said "No. No, no, no" and, "Mum, that's what they told us to do when the police came to [her high school] and I - I had to let him have sex with me so that I could get out of the room. And I went to find the phone and the phone had been hidden and by the time I found my phone, I went to leave the room and he blocked the door and was swearing at me and was trying to force me to give him head. And then someone interrupted and I was able to escape from the room" (18/08/22; T 202.5-35); the complainant said that the complainant was "sort of forced into the cab; the applicant would not let the cab driver turn around so that she could get her wallet; and that once they went into the room the complainant said that the applicant shut the door and forced her onto the bed and was choking her and hurting her, and that the complainant said "Stop, stop, you're hurting me. No, no, no, no"; and that she had to let him have sex with her so she could get out of the room. The complainant's mother said that the complainant did not say to what type of sex she was referring (18/08/22; T 203.14-33).
The complainant's mother said that the complainant was crying during the conversation. The complainant's mother agreed in cross-examination that the complainant told her that she was forced into the room (18/08/22; T 218.25-26) (cf the complainant's account - see above). The complainant's parents then immediately drove from their home to Armidale (a six and a half to seven hour drive).
The applicant points out that the complainant's first account to her mother was inconsistent in a number of respects with the evidence she gave at trial about the alleged events, noting that at trial, the complainant said she got into the taxi after the applicant got into the taxi (29/03/2022; T 24.30); that she followed the applicant into the college room (29/03/2022; T 25.41-43; 17/08/2022; T 91.31-32); and that she sat on the bed in the room (29/03/2022; T 25.46-49). It is noted that the complainant did not give evidence at the trial that the applicant forced her to lie down on the bed.

Ms A

Ms A gave evidence as to the evening that: she remembered the complainant crying and Ms B being there; she did not remember specific conversations, but she just remembered the complainant crying; she thought that she said to the complainant "Are you okay? What - what's happened?" but did not really remember anything that the complainant said to her (18/08/22; T 226.29-37). Ms A said that the complainant was upset so she thought she would just try to calm her down and make her comfortable (18/08/22; T 226.36-3). Ms A said that she was still in a relationship with Mr L and did not have any contact with the complainant. Ms A "partly" agreed that her memory of the evening was heavily affected by the fact that she was significantly intoxicated (19/08/22; T 255.6-10). Ms A said that before she went to sleep, she vomited in her room in the bin (19/08/22; T 255.36-39).

Dr McIntyre

Dr Cheryl McIntyre examined the complainant at the Inverell Hospital using an SAIK on 14 July 2019 from 4.33 pm until 5.45pm (42.5 hours after the alleged assaults) (see 19/08/22; T 247.48-248.7). Dr McIntyre gave evidence (19/08/22; T 249.7-32) that she took the following history from the complainant: [The complainant] stated that she was at the Kilda Pub with friends, [Ms A]; her boyfriend [Mr L] and his brother [the applicant], from 7pm on 12 July 2019. And at approximately 9.40 they decided to get some food after having drinking together. He went with her to McDonald's next door, they brought some food and headed back to the pub. He offered to get a taxi back to [the residential] College and they both went to [Mr L's] room, were talking and started kissing. She reports saying that she was tired from before they both started talking and taking off their clothes to have sex. But once they started to have vaginal sex, he started to hit her and grope her breasts hard. She asked him to stop. She stated that he then grabbed her and hit her right buttock and both breasts and he was biting and sucking on her chest. He continued until he ejaculated. She reports again, saying that she was tired, that he put his fingers into her vagina. She tried to push him away, but he pushed her hands away. He attempted to perform cunnilingus and she closed her legs, but he pushed them apart and continued. Once she found her phone she saw it'd been put into aeroplane mode which she hadn't done. She reported that he continued to try and grab her and kiss her face and pulled her to sit on his lap. She broke away, got the door partly opened and part way through the door because as the mattress against the door. He pulled her back again, but she again broke away, got through the door and went to her friend's room in the College. She also stated that he had tried to force her to have oral sex with him by putting his penis near her face, but she refused. No condom was used. She described having soreness in the vaginal area, but no vaginal bleeding.
Dr McIntyre agreed that the complainant advised she had consumed six to eight glasses of pre-mixed vodka from approximately 7pm to 9.40pm on the evening of the assault (19/08/22; T 249.34-41). Dr McIntyre said that when the complainant was giving her the history, and during the examination, the complainant was "quite tremulous, so trembly, fidgeting, and almost in tears" (19/08/22; T 250.15-19).
Dr McIntyre conducted a thorough examination of all the complainant's body surfaces and oral cavity (19/08/22; T 250.1-3). Dr McIntyre observed four bruises (19/08/22; T 250.21-26). Her evidence was that it is quite common after sexual assault not to have any genital injuries seen on examination but that the absence of injury does not imply that no assault has taken place. Dr McIntyre also gave evidence that it is possible to have injuries after consensual sex (19/08/22; T 250.44-46).

Applicant's cousin (Ms F)

The applicant's cousin (Ms F) gave evidence of seeing the applicant and the complaint together on 12 July 2019 and observed them kissing when he was at the bar at the hotel (19/8/22; T 276.8-10) but in further cross-examination by the Crown (pursuant to leave granted for the Crown to cross-examine its own witness under s 38(1)(a) of the Evidence Act 1995 (NSW)) Ms F accepted that when she had made her police statement on 18 July 2020 she had some doubt as to whether she actually saw the two kissing (19/8/22; T 279.45-48).

Ms D

Ms D gave evidence that she spoke with the complainant on 13 July 2019 at 2pm when she arrived at Armidale and that the complainant said "she had gotten with him, that they'd slept together, and she wanted to at the start but then she - then she didn't. Then it was like, not okay, basically. And she wasn't - yeah, wasn't good, from what I can remember … she was a bit, bit not herself, not her usual bubbly self, from memory" (19/08/22; T 282.9-15). In her police statement on 15 July 2020, Ms D had said her recollection of the conversation with the complainant was that "it had been okay up to a point when they had been getting with each other that night, and then it wasn't okay" (19/08/22; T 282.23-24).

Mr L

Mr L, the applicant's fraternal twin, gave evidence and said he went into his room when the complainant was there for "probably five minutes" (19/08/22; T 289.29-30). Mr L slept the night in Ms A's room with the complainant. Mr L gave evidence that he went with the complainant and Ms A to retrieve the complainant's wallet at around 3.00-3.30 am (19/08/22; T 291.17-49).

Ms C

Ms C gave evidence that: she spoke on the phone to the complainant at about 9am on 13 July 2019 and the complainant "sounded shaken up and I just remember that she really wanted to get out of the college"; that she then picked up the complainant for breakfast and she was "Not like her usual self" and was "jumpy and quite upset" (22/08/22; T 358.37-359.37); and that the complainant then told her what happened that night: I remember [the complainant] telling me that she had met [the applicant] that night at the Kilda and that she - they were talking and she went back to his room just with no intentions to do anything. And he started kissing her and she said that she wasn't in the mood and I remember her saying a lot about - a few times that he had hurt her and hit her and pushed her up against the wall while he had sex with her. And - and I remember her saying that the only thing she could think about was to keep on saying no so that she knew that she hadn't of - that she had said no a lot of times to [the applicant] while he was having sex with her… She said "Stop" and she said "This really hurts," when he pushed her up against the wall. [22/8/22; T 359.45-360.7]
Ms C said that the complainant told her that "he [the applicant] had been slapping her really, really hard and that's when she told him to stop, like, because it hurts" (22/8/22; T 360.36-37). The complainant told her that she tried asking the applicant for her phone after he threw it across the room to hide it from her and he said "No"; that the complainant told her that "before she had time to put any clothes on, she found the moment to try and run to the door but there was a mattress in front of it, and [the applicant] slammed the door in front of her and pushed her back and pushed her head down onto his penis and made her give him oral sex" (22/8/22; T 360.26-31).
After having refreshed her memory, Ms C said that the complainant had told her that the applicant had tried to force his penis into her mouth (22/8/22; T 368.30-44). In cross-examination, Ms C said that the complainant had told her that the applicant had made her give him oral sex (and confirmed that this was what the complainant had actually said to her) (22/8/22; T 370.31-38).
Ms C said that the complainant was not sure whether to report the incident or not because she did not want to upset or embarrass the applicant and that "people were quite judgmental towards girls that did report rapes" (22/8/22; T 360.9-15). Ms C gave evidence that she went to the college ball with the complainant and she was "being extremely quiet, and shy, and was hanging around me. And I remember we went to the bathroom, and she just started sobbing because she just was finding it hard to be there … Her parents picked her up not long after we got there" (22/8/22; T 361.43-48).
In cross-examination the complainant did not remember saying to Ms C that the applicant had hit her and pushed her up against the wall (17/08/22; T 137.7-9); said that the applicant did not hit her or push her up against the wall (17/08/22; T 137.11-13); could not remember telling Ms C that the applicant had pulled her hair (17/08/22; T 137.15-17); and, when asked if the applicant pulled her hair said "Not that I can remember" (17/08/22; T 137.19-20). The complainant's account of the penile/vaginal intercourse was that she was on top of the applicant (29/03/22; T 30.47-49).

Ms E

Ms E, a friend of Ms A at the residential college, gave evidence that she went to bed at 10.30pm and did not see the complainant when she was back at the college (22/08/22; T 377.23-31).

Mr M

Mr M, a university friend of the applicant, gave evidence that he drove to Armidale with the applicant; that he was in Mr L's room at the time the complainant and applicant came back to the room from the hotel and that he (Mr M) then left; that, later, he went to Mr L's room with Mr L and the applicant yelled out to them to "fuck off" (22/08/22; T 390.9-25) and that the applicant then opened the door wrapped in a towel or sheet and Mr M saw the complainant in the bed. He said Mr L went to the fridge and got some beer (22/08/22; T 390.33-36). Mr M said that the applicant told him the next morning that the complainant was upset that he would not stay in the room with her (22/08/22; T 392.38-41). In cross examination, he said that the complainant "didn't look upset or anything like that" (22/08/22; T 407.40-41).

Detective Senior Constable Harman

Detective Senior Constable Leah Harman gave evidence that she first spoke to the complainant on 14 July 2019, when the complainant attended the Armidale Police Station with her parents. DSC Harman gave evidence that she spoke to the complainant, alone, in an interview room and made some notes of what the complainant told her; and that she used the notes to make a Computerised Operational Policing System (COPS) event record on the system (22/08/22; T 422.26-42). DSC Harman's recollection of what the complainant told her was: So, she stated - stated that she'd been down at the St Kilda Hotel with her friend. So, she had been staying with her friend and her friend's boyfriend's brother was [the applicant]. They were all together at the St Kilda Hotel prior to the night out, to the next night. And then they went to McDonalds. They were both drinking, weren't overly - she didn't say anything about them being overly intoxicated. And they went back - she went to the McDonald's and then when they were coming back - then they were going to come back then they ended up in a taxi and going back to [the residential] College. … So from, I've got notes that I took on the day, which I just sort of did - jotted down notes - basically saying that they'd been at the St Kilda, went to get food, went back to the taxi, in a taxi, went to [the applicant's] brother's room. They were kissing. She said she had consensual sex with him at that time, and things got very rough and she wanted to stop, and then she was - he tried other sexual acts, and he was getting aggressive, and then she couldn't get out at the time. She couldn't find her phone. Eventually she got out and went - and founder [sic: found] her way to her friend's room. She hadn't been therefore [sic: there before]. She didn't really know where she was. [22/08/22; T 423.6-31]
In relation to the "consensual sex", DSC Harman said that the complainant said she was referring to "penile-vaginal sex". When asked about anything else that she noted that the complainant told her at that time, DSC Harman said (22/08/22; T 423.48-424.7): So she said they had penile-vaginal sex with no condom. During that time, [the applicant] became very rough. She told him to stop and tried to push him away. He continued to have sex with her, being penile-vaginal sex, and he was rough and hurting her. She continued to tell him to stop and push him away. He attempted to get up and get dressed and find her phone. He kept grabbing her and pulling her back to the bed. As he stood in front of her, he told her to give him oral sex, and he pushed his penis in her face is basically what she said. He would go and get someone else to do it if she didn't. And she said she continually told him to stop and push him away, and he continued to try and instigate more sexual activities to which she said, "No".
DSC Harman did not clarify with the complainant what other sexual activities the applicant had tried to instigate (22/08/22; T 433.1-5). DSC Harman agreed in cross-examination that the complainant said nothing to her about the applicant putting his fingers in her vagina or performing cunnilingus on her (22/08/22; T 433.6-12).
DSC Harman said that this was just a "brief version" from the complainant of what had happened as she was very unsure about what she wanted to do in relation to these things happening to her (22/08/22; T 424.9-14). DSC Harman said that the complainant was "very concerned about the repercussions of the friendship group, being that it [referring to Ms A] was her best friend and being that [the applicant] was her best friend's boyfriend's brother" (22/08/22; T 424.18-20).
DSC Harman later took a formal statement from the complainant on 6 July 2020. DSC Harman said that on that occasion the complainant said that initially (on 14 July 2019 when the initial complaint was made) the complainant believed that she had consensual sex because she gave into the demands of the applicant and that the complainant believed that because she gave in and was accepting of having sex then it was consensual (22/8/22; T 426.28-33). (In her evidence at trial the complainant said that none of it was consensual - 17/08/22; T 148.30-31.)

Police constable's statement

A statement was tendered of the police officer who delivered the complainant's wallet to her in the morning of 13 July 2019 (Ex 15).

Defence case

The defence case was that the sexual touching and penile vaginal intercourse (the subject of counts 1 and 3) was consensual and that the other three alleged sexual acts (digital penetration, cunnilingus and attempted fellatio; counts 2, 4 and 5) did not occur.

Applicant's evidence

The applicant denied the allegations of digital penetration, cunnilingus and attempted fellatio (3/8/22; T 445.8-17).
The applicant gave evidence that he left Sydney with Mr M on Friday morning to attend the College ball, that on Friday he went to the St Kilda hotel and was introduced by Ms A and his brother to the complainant; that he spoke with the complainant at the hotel, and they left the pub to get McDonalds; that he initiated holding hands with the complainant when walking to McDonalds (23/08/22; T 449.19-23); that they ate at McDonalds and then when they walked back, he put his arm around the complainant and then kissed the complainant and she kissed him back (23/08/22; T 450.4-6). The applicant said that he said he wanted to go back to the pub and that the complainant said "I don't want to go back, I want to go back to the college. Come back with me. I've just come off a big week at uni games"; that he eventually agreed to go back to the college with her; they got into a taxi (she first) and they "kissed each other quite passionately in the taxi" and she leaned her head on his right shoulder, and he had his arm around her and his hand on her breasts; and that the taxi stopped and the complainant said something about not having her wallet (23/08/22; T 450.24-452.15). The applicant said that they went to his brother's room and Mr M was there and Mr M then left (23/08/22; T 454.34-455.16).
The applicant's evidence was that: he and the complainant were both sitting on the bed; after he finished texting his friends, he put his phone in his pocket; and after the complainant finished what she was doing, she turned and lay down next to him (23/8/22; T 455.34-456.4). The applicant said that they started kissing and rubbing each other's bodies; that his right hand was underneath the complainant's "trackies" but on top of her undies, rubbing her vagina, and that she was rubbing his penis on the outside of his jeans, and his chest. The applicant said that they were rubbing each other's bodies for maybe five minutes or less; that they did not say anything to each other during that time and they were kissing each other. The applicant said that the complainant did not say anything to him about what she wanted or did not want to happen (23/8/22; T 456.10-40).
The applicant said that, after about five minutes, he and the complainant then each removed their own clothing and were naked; that he lay on his back, and the complainant then sat on top of him, with a leg on either side of his body; (23/8/22; T 456.42-457.7) that he said to the complainant "Are you sure?" and that he then asked, "You're not too tired?" and that the complainant said "Yes, everything's fine" (23/08/22; T 457.10-11). The applicant said that he asked the complainant if she was sure because he wanted to check if she wanted to have sex with him (23/08/22; T 457.13-17). The applicant said he had his hands on the complainant's breasts and she reached down and guided his penis into her vagina (23/08/22; T 457.30-32); that they had sex with her on top of him for about 5 minutes (23/08/22, T 457.37-42); that he had his hands on her breasts and also her buttocks, squeezing her buttocks at times; that they continued to have sex and then while his penis was still inside her they rolled over so she was on the bottom and he was on top (23/08/22; T 458.1-32). The applicant said that the complainant was "moaning a bit" which indicated to him that "she was enjoying it" (23/08/22; T 458.39-42).
The applicant gave evidence that the complainant started moaning "I want you to come in me, I want you to come in me", five or six times. The applicant said that, when she started saying that, it was "a bit of [a] red flag" in his head and "it was a bit weird". The applicant said that they were not using a condom and it was the opposite of what he thought someone would say because there was a risk of pregnancy (23/8/22; T 459.2-11). The applicant said that he faked an orgasm and then they finished having sex and he was lying back and she was cuddling him on his left side (23/8/22; T 459.18-19).
In cross-examination, the Crown case was put to the applicant (23/08/22; T 483-489). The applicant was questioned on: his account that he asked the complainant "Are you sure?" and "You're not too tired" (23/08/22; T 490.36-491.36); his account that the complainant said five or six times "I want you to come in me" during sexual intercourse without a condom (23/08/22; T 493.12-32) and that he had faked an orgasm (23/08/22; T 493.34-494.11); which he said he did by thrusting his hips and pretending to ejaculate. The applicant did not recall saying anything but said there might have been sound; he could not remember. The applicant denied that he knew that night that the applicant had been upset (23/8/22; T 496.38-40).

Character evidence

The applicant called evidence of his good character from his girlfriend and his mother.

Crown's closing address

In closing, the Crown prosecutor submitted to the jury that "In relation to the counts on the indictment, if you have a reasonable doubt about one count on the indictment, it is, of course, open to you, in accordance with directions given to you, to find the accused guilty of other counts, if you [are] satisfied beyond reasonable doubt of the other counts' elements. And also, if it's a rational thing to do" (24/08/22; T 529.49-530.3).
The Crown relied on a number of aspects of the applicant's account that undermined the credibility of his account (24/08/22; T 531.14-49): The first part of his account that would cause you concern is that he says that after [the complainant] got on top of him naked with her legs on either side of him, and this is his account. She does not accept that that that [sic] happened. It was not actually put to her that she got astride him, but she was asked about whether she was on top of him, and that's part of her account but not in the way he described. He says that after she got on top of him naked with her legs on either side of him he felt it necessary - and she's naked at this point - he felt [that it was] necessary to ask her two questions. He's very particular, two questions, "Are you sure?" and "You're not too tired?" In the Crown's submission, that just doesn't ring true. Asking before you get naked, yes. Asking if someone seems hesitant or an enthusiastic [sic: unenthusiastic], yes. But asking not once but twice after someone has climbed astride you naked, it's not credible in the Crown's submission. The second part of his account is that [the complainant] said five or six times, "I want you to come in me," during sexual intercourse without a condom. Think about [the complainant] when she was being questioned about the sexual acts with the accused. In his evidence to yesterday, the accused is not suggesting that [the complainant] was reluctantly consenting or passively consenting. In the Crown's submission the effect of his evidence is that she took the initiative by getting astride him and demonstrated her enthusiasm by asking him numerous times to come inside him. Remember when [the complainant] was asked if she said that in cross examination? Her response in the Crown submission was a mixture of fury and distress, "No way." The third matter about his evidence that I'd like to take you to is the fake orgasm, possibly the silent fake orgasm. In the Crown's submission, the accused['s] evidence that he faked an ejaculation, which is what he said he did, is not credible. It's so not credible in the Crown's submission that it would cause you to have a real doubt about all of his evidence and to put it aside. The accused was unable at first to explain how he faked an orgasm, and that in itself is telling in the Crown's submission. If it did happen, you'd be able to answer that question fairly readily. He was pressed and eventually said, "I pretended that I finished and came". [Emphasis as per Crown submissions]
Defence counsel submitted that the trial judge ought to give a full Markuleski direction (derived from R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 (Markuleski)) (i.e., a direction in which the jury is directed that a reasonable doubt about the complainant's evidence on any count ought to be taken into account in the jury's assessment of the complainant's credibility generally) prior to the commencement of his closing in order to remedy the submission made by the Crown to which he had objected (see above at [90]) (24/08/22; T 529.49-530.3) (24/08/22; T 534.8-29). Defence counsel submitted that the Crown prosecutor's address could only be repaired by giving a direction prior to his address starting (24/08/22; T 534.27-29). His Honour ruled against giving a direction prior to defence counsel's address (24/08/22; T 535.42-44).

Directions

There is no complaint as to the directions that the jury was given on onus and standard of proof and how to consider the accused's evidence in the context of the onus and standard of proof (SU 2-4, 9-11). The jury was told that it was entirely a matter for the jury as to what evidence was accepted and what evidence was rejected (SU 2, 5); that the jury was not obliged to accept the whole evidence of any one witness and that it was open to accept part of the witness' evidence and reject another part if there is a reason for it (SU 5).
The jury was directed that the complainant was a "very important witness" in the Crown case and that the jury "should look carefully at her evidence and the issues of credibility and reliability that have been raised and you should consider whether there are any weaknesses or deficiencies in her evidence and whether they might support a reasonable doubt about the charges brought against the accused" (SU 20).
The jury was directed to consider each charge separately and that there was no legal requirement that the verdicts must all be the same (SU 20); that the jury was entitled to bring verdicts of guilty on some counts and not guilty on other counts if there was a logical reason for doing so (SU 20-21). The jury was then directed (at SU 21): However, if you were to find [the applicant] not guilty on any count and particularly if that was because you had doubts about the honesty and reliability of [the complainant's] evidence, you would have to consider how that conclusion affected your consideration of the remaining counts. In other words, you would take that doubt about [the complainant's] credibility or reliability into account when assessing the overall credibility of [the complainant] and her evidence in relation to the other counts.
The trial judge then directed the jury on the elements of the charged counts and provided written directions (MFI 21). The jury was directed that the jury had to be satisfied beyond reasonable doubt either that the applicant actually knew that the complainant was not consenting, that he was reckless as to whether the complainant consented because he realised there was a possibility that she did not, or he was reckless as to whether the complainant consented because he did not even think about whether she consented or not and went ahead not caring or considering it was irrelevant (SU 24). There is no complaint as to the directions in relation to the element of knowledge.

Legal principles

There was no dispute as to the applicable principles on an "inconsistency of verdicts" ground of appeal (see Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56) (Jones) (although Senior Counsel for the applicant emphasised that, although the focus is a consideration of the acquittals, the question is ultimately whether they can be reconciled with the guilty verdicts (see AT 1.28-34).
The test for determining whether a verdict is unreasonable as a result of inconsistency with verdicts of acquittal is one of logic and reasonableness. What must be shown is that the verdicts cannot stand together; that is, that "no reasonable jury who applied their mind properly to the facts in the case could have arrived at the conclusion" (MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 (MacKenzie) at 366 per Gaudron, Gummow and Kirby JJ). If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury properly performed their functions, that conclusion will generally be accepted (MacKenzie at 367 per Gaudron, Gummow and Kirby JJ). One must consider the significance of the verdicts of not guilty in light of the circumstances of the particular case (MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (MFA) at [34] per Gleeson CJ, Hayne and Callinan JJ), including the directions given to the jury for example as to the need to give separate consideration to each count, directions on accepting and/or rejecting the evidence of witnesses in part or in whole, and any such direction in accordance with Markuleski (MFA at [34] per Gleeson CJ, Hayne and Callinan JJ).
A verdict of not guilty may not necessarily imply that the complainant has been disbelieved and there may be legitimate reasons as to why the jury returned a verdict of not guilty on some counts and not others (see MFA at [34] per Gleeson CJ, Hayne and Callinan JJ). The applicant notes that these include (see MFA at [34]): where there is no objective evidence of sexual offences, the jury may require some supporting evidence before they are satisfied of the complainant's evidence beyond reasonable doubt; and that the jury may perceive 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 (MFA at [34]).
Reference is made by the applicant to Jones, where the jury's finding of not guilty damaged the complainant's credibility with respect to all counts on the indictment. In Jones the Court observed that implicit in the acquittal on the second count was a rejection of the complainant's account in respect of count 2 and it was "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" given that "[t]here [was] 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" (Jones at 453 per Gaudron, McHugh and Gummow JJ).
In TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128], Simpson J (as her Honour then was) (with whom McClellan CJ at CL and Latham J agreed), after a review of the various authorities, emphasised that "[i]n determining whether convictions are unreasonable, in these circumstances, the focus of the 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". Her Honour also said at [130] (emphasis in original): 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 a complainant's credibility.
As adverted to above, the applicant argues that, under MacKenzie, Jones and MFA, the approach is not so confined (i.e., not confined to a consideration of whether there exists any explanation for the acquittals), noting that in MacKenzie (at 365) the plurality said that, when an appellate court is confronted with a diversity of verdicts, the Court must consider whether the verdicts can logically stand together. Thus the applicant argues that the enquiry is not limited to finding an explanation for the acquittals but extends to consideration of the reasons behind the guilty verdicts; and that in order for the convictions to stand, the verdicts of acquittal and guilty must be reconciled with each other (MacKenzie at 367, see also 368 per Gleeson CJ, Hayne and Callinan JJ). Similarly, the applicant contends that the analysis conducted by the plurality in Jones at 453 and 455 and the plurality in MFA at [36] also shows that the enquiry involves an examination of the reasons for acquittal and the verdicts of guilty.
Insofar as an unreasonable verdict ground (not based on inconsistency) was foreshadowed (though not ultimately pressed) it is relevant to note the applicable principles identified by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and reiterated in Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 (Dansie); and that this Court must determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of the offences for which he has been convicted (Dansie at [7] per the Court).

Applicant's submissions

The applicant submits that the verdicts of guilty on counts 3, 4 and 5 are unreasonable and inconsistent with the verdicts of acquittal in respect of counts 1 and 2. The applicant maintains that there is no logical basis for reconciling the verdicts of acquittal with the verdicts of guilty and that the doubt held by the jury in respect of the complainant's account on counts 1 and 2 ought to have applied to counts 3, 4 and 5 given the state of the evidence before the jury.
The applicant emphasises that, on the complainant's evidence, there were nine or ten occasions on which, prior to the alleged conduct the subject of counts 1 and 2, on which the complainant clearly expressed her lack of consent to sexual activity with him (see below). The applicant argues that there was no ambiguity in this regard in relation to counts 1 and 2 and nothing to suggest that the distinction in the verdicts for counts 3 to 5 is referable to ambiguity in the complaint's account in relation to counts 1 and 2 (see AT 4).
The applicant notes that the complainant's evidence was that all five offences occurred during a short period of time while she and the applicant were in Mr L's room. The applicant says that the complainant's account was in effect that there was a single course of conduct and that there was nothing in her account that relevantly distinguished the offences in a way that might explain the verdicts. It is noted that the complainant's account at trial was that at all times she verbally expressed her lack of consent to the applicant. The applicant says that there was nothing in the complainant's evidence at trial that suggested that her recollection with respect to counts 3 to 5 was of a better quality than her recollection with respect to counts 1 and 2 (i.e., that it was not the case that her evidence in respect of count 3, 4 or 5 was stronger than her evidence on count 1 or 2 in that there were inconsistencies or inherent weaknesses in the accounts of the allegations the subject of counts 1 and 2 as opposed to the counts on which convictions were obtained).
The applicant submits that the verdicts were not explicable on the basis that the complainant's evidence at trial raised a question about a lack of consent or whether the applicant held the requisite state of mind for the offences on the indictment.
The applicant says that it is clear from the acquittals on counts 1 and 2 that the jury was not prepared to act on the complainant's evidence at trial concerning the course of events and did not accept her evidence that the sexual touching and digital penetration occurred and/or was not consensual. It is submitted that the doubt that the jury had concerning the complainant's evidence at trial in respect of counts 1 and 2 should also have extended to her evidence concerning counts 3, 4 and 5.
In particular, the applicant says that it is apparent from the acquittal on count 2 that the jury did not consider the account given to Dr McIntyre as sufficient corroboration for the complainant's account at trial; and argues that the other complaint evidence (from Ms B, the complainant's mother, Ms C, Ms D and DSC Harman) does not explain the verdicts reached. While the fact that the complainant did not mention digital penetration to any of these people might be said to explain the acquittal on count 2, the applicant says that this does not explain why he was convicted of count 4 (cunnilingus) given that the complainant did not mention this to these people either.
The applicant maintains that a further difficulty in attempting to reconcile the verdicts by relying on the evidence of complaint was that the accounts given to Ms B, Ms C, Ms D, her mother, DSC Harman and Dr McIntyre were different to the account she ultimately gave of the course of events at trial. The applicant in his submissions has prepared a table of the inconsistencies identified in the complaint evidence, to which I have had careful regard. It is not necessary here to set that out.
The applicant further argues that the jury's verdicts cannot necessarily be explained on the basis of a partial acceptance of the applicant's evidence. It is said that the acquittals were consistent with his evidence in that his evidence was that the sexual touching was consensual and the digital penetration did not occur; but the verdicts of guilty entailed a rejection of his evidence that the penile vaginal intercourse was consensual and that the cunnilingus and attempted fellatio did not occur. The applicant says that, properly analysed, there is no rational basis to explain the verdicts of acquittal on counts 1 and 2 and the verdicts of guilty on counts 3, 4 and 5.
In addition, the applicant says that doubt as to his guilt on counts 3, 4 and 5 is raised by the following matters: that the complainant accepted in cross-examination that she had the opportunity to leave the room when the applicant's brother came into the room but she chose to stay in the bedroom (17/08/22; T 107.5-108.16); that another man (Mr M) saw the complainant when the applicant's brother went into the room and the door was open (before the alleged attempted fellatio count) (22/08/22; T 406.15-29) and he gave evidence that he saw the complainant in bed with the sheet over her and everything appeared fine and she did not look upset (22/08/22; T 407.30-41); that the complainant attended the college ball the next evening knowing that the applicant would also be attending (17/08/22; T 140.31-38); that Ms B gave evidence that prior to attending the ball when the complainant was getting ready she was happy and they were just listening to some music and doing their makeup (18/08/22; T 228.50-229.2); the evidence of the applicant's good character including his character in a relationship (23/08/22; T 506-507, T510); that the complainant told Dr McIntyre that the applicant ejaculated (the submission being that it is unlikely that the applicant would have engaged in cunnilingus after having ejaculated in that area and unlikely that he would have been able to become erect shortly thereafter to force her to give him fellatio); and that text messages sent by the complainant before and after the events in question do not suggest non-consensual intercourse or violence (Ex 4, 5 and 8). As noted, Senior Counsel for the applicant in oral submissions did not press the unreasonable ground on the basis of those matters.
The applicant says that this is not a case where doubt experienced by the appellate court can be resolved by reference to the jury's advantage in seeing and hearing the evidence in circumstances where the jury did have a doubt about the reliability and credibility of the complainant in respect of her evidence on counts 1 and 2.
In substance, the applicant's position is that the acquittals are not reconcilable on the basis that there is no logical explanation for the acceptance (implicit in the guilty verdicts) of the complainant's evidence on counts 3 to 5 but the rejection of her evidence on counts 1 and 2. Senior Counsel for the applicant accepts that there is a "crude" or superficial logic to the verdicts (see, for example, at AT 4) (in that the absence of consent was more forcefully expressed by words and conduct in relation to counts 3 to 5) but says that this does not provide a rational explanation for the verdicts since the complainant was equally emphatic in her evidence at trial of lack of consent in relation to each of the counts. As noted above, Senior Counsel for the applicant argues that there was no ambiguity in the expression of lack of consent for the first two counts that would explain the different verdicts in respect of the later counts. It is accepted the complaint evidence supports the complainant's credibility but the applicant argues that it does not do so in a way that enables the verdicts to be distinguished (noting that the Crown eschews reliance on the complaint evidence as a way of reconciling the verdicts).
Senior Counsel for the applicant says that the trial judge sentenced on the basis that the vaginal sex was consensual at the start but then consent was withdrawn but that this was not in accordance with the complainant's account of the sequence of events; and that such reasoning is about the complainant's consent not the applicant's belief as to her consent. It is submitted that an explanation for the verdicts cannot be found on the basis of the applicant's state of mind (as the Crown argues) because the evidence of the complainant was equally emphatic in relation to all counts that there was no consent; and that the reason for the change in the complainant's account that the sex was consensual at the start does not provide a rational explanation because it damages her credibility. In particular, Senior Counsel for the applicant says that it is not an adequate explanation to say that there are bigger issues with the complainant's credibility on counts 1 and 2 than on the remaining counts.

Crown's submissions

The Crown submits that the verdicts challenged by the applicant are neither inconsistent nor otherwise unreasonable.
The Crown notes that there is no general rule that in cases where several offences depend upon the evidence of a single complainant; acquittal on one or more counts necessarily reflects a view that the complainant was untruthful or unreliable, or that the complainant's credibility was undermined in respect of the counts upon which they have returned guilty verdicts (MFA at [34]-[35] per Gleeson CJ, Hayne and Callinan JJ and at [89] per McHugh, Gummow and Kirby JJ); and that there is a "relatively high bar" before a conviction will be set aside (Smith v R [2023] NSWCCA 118 at [62] per Beech-Jones CJ at CL, Button and McNaughton JJ); and this task must be considered in the context of the system within which juries function as the trier of fact, and of the jury's role in that system (MFA at [34] per Gleeson CJ, with whom Hayne and Callinan JJ agreed). Further, the Crown notes that in assessing the evidence, the Court should properly be conscious of the advantage of a jury over an appellate court in that there would be aspects of the case that would not be reflected adequately in the written record (MFA at [23] per Gleeson CJ, Hayne and Callinan JJ; ML v R [2015] NSWCCA 27 at [46] per Hoeben CJ at CL, with whom Johnson and Davies JJ agreed).
It is noted that the trial judge instructed the jury to consider each count separately and with regard to the evidence relevant to that particular count; and that if the jury had a reasonable doubt as to the honesty or reliability of the complainant in relation to a particular count, the jury should take that into account in assessing the credibility and/or reliability of her account in relation to other counts about which she gave evidence. The Crown says that those directions provide important context for the consideration of the applicant's single ground of appeal.
The Crown says that, while proof of all of the counts depended on the jury accepting the complainant, the acquittals on counts 1 and 2 are explicable by reason of the jury experiencing a reasonable doubt as to proof of the mental element on the applicant's part of those two offences. The Crown says that although the complainant's lack of consent to the five offences was plain from her account of the evening, the applicant's knowledge of her lack of consent may have only been plain to the jury, taking a "cautious approach to the discharge of a heavy responsibility" (MFA [34] per Gleeson CJ, Hayne and Callinan JJ), in respect of counts 3 to 5. In that context, it is submitted that the mixed verdicts do not demonstrate any "want of confidence" on the jury's part in the evidence of the complainant (MFA [34] per Gleeson CJ, Hayne and Callinan JJ).
The Crown argues that the jury may have found that the complainant had not communicated her lack of consent to the sexual touching or digital penetration to such an extent that the applicant did not know that the complainant was not consenting, particularly in the context of the combination of events that had preceded those counts; whereas, in contrast, the complainant's evidence in relation to counts 3 to 5 established that she gave greater physical resistance in relation to those counts, and she also gave evidence to the effect that she more strongly said "no" as the applicant's force increased.
The Crown has summarised, in relation to each count, the complainant's evidence on the issue of consent. It is not necessary here to set that out.
The Crown maintains that the complainant's account does relevantly distinguish the offences in a way that might explain the verdicts. It is submitted that the complainant's verbal and non-verbal communication for her lack of consent was made more forcefully (as the violence escalated) at the time of counts 3 to 5. The Crown points to the Crown's closing address which highlighted what happened once count 3 occurred: But once they started having vaginal sex, he started to hit her, and grope her breasts hard. She asked him to stop. She stated that he then grabbed her, and hit her right buttock, and both breasts, and that he was biting and sucking on her chest, that he continued until he ejaculated. She reported again saying that she was tired, that he put his fingers into her vagina, that she tried to push him away, that he pushed her hands away. She said that he attempted to perform cunnilingus and she closed her legs, but he pushed them apart and continued. [24/08/22; T 523.37]
In that context, the Crown argues that the acquittals can be explained on the basis of the jury not being satisfied that the applicant held the relevant state of mind for counts 1 and 2.
It is submitted that the jury may also have taken into account events preceding the sexual activity in considering whether the Crown had proved knowledge of lack of consent in relation to counts 1 and 2, including that: the complainant went with the applicant in a taxi, she followed the applicant into the bedroom (even if she followed him because she assumed it was Ms A's room), she was lying down on a bed with him, and she had kissed him earlier and let him put his arm around her. The Crown contrasts this with the complainant's communication of her lack of consent at the time of counts 3 to 5, which was clear and direct. It is submitted that the complainant's physical resistance to the force being used rebutted any suggestion that the applicant may have believed, on reasonable grounds, that she was consenting.
In written submissions, the Crown's position was that it does not rely on the complaint evidence to explain the verdicts reached; rather, the Crown says that the complaints made shortly after the event provided significant support for the evidence of the complainant. The Crown submits that the complaint evidence (including, the complainant telling DSC Harman that initially there was "consensual sex") must be assessed in light of the complainant's evidence (accepted by the jury as credible) that she only decided to make a formal statement after she started seeing a sexual assault counsellor who taught her about coercion, which made her understand that it was not consensual because of coercion.
The Crown argues that the verdicts of acquittal on counts 1 and 2 do not undermine or cast doubt on the complainant's credibility or the reliability of her evidence. The Crown says that the jury must be taken to have accepted the complainant's account as both truthful and reliable but had a reasonable doubt as to whether the applicant knew she was not consenting in relation to those counts. It is submitted that such an approach is consistent with the jury having "adopted a cautious approach to the discharge of a heavy responsibility" and having carefully followed the trial judge's direction for the jury separately to consider each count; and as to the need for proof at a "high standard" and for the jury "carefully [to] consider" the complainant's evidence.
The Crown says that the "relevant inconsistencies" as submitted in the applicant's submissions (at [49]) are not relied on by the Crown to "reconcile the verdicts". The Crown says that the applicant relied on the inconsistences in the complaint evidence and the "inconsistencies were clearly spelled out for the jury for its consideration", noting that the trial judge referred to them in his Honour's summing up; and that his Honour also gave a direction under s 293A of the Criminal Procedure Act 1986 (NSW). The Crown says that it was open to the jury to take account of these factors when determining the complainant's evidence as a whole and that the jury was entitled to come to the view that any discrepancies did not undermine the complainant's core account of the allegation.
As to the seven matters (set out in the applicant's submissions at [52]) which the applicant contends are such as to render the verdicts on counts 3 to 5 unreasonable, the Crown notes that each of those matters was before the jury. The Crown responded in submissions on each of those matters. It is not necessary here to recount the Crown's submissions on those issues.
Suffice it to note that the Crown argues (and I accept) that none of the seven matters listed in the applicant's submissions at [52], either alone or in combination, is of such a character to undermine the reliability and credibility of the complainant's evidence; and that these arguments were raised before the jury which was best placed to assess the reliability and credibility of the complainant's evidence, having enjoyed the advantage of observing her give evidence.
The Crown maintains that its case was strong in respect of counts 3 to 5; that the complainant's evidence was compelling; there was immediate and recent complaint; there was also reporting to police and hospital within two days of the events; and the Crown also relied on the evidence of the complainant's demeanour which it says was consistent with her allegations.
The Crown also points to the evidence of the seven complaint witnesses (Ms B, Ms A, the complainant's mother, Ms C, Ms D, DSC Harman and Dr McIntyre) relied on to prove the complainant's allegations and to support her credibility (see above), those witnesses giving evidence of complaint made within 42.5 hours of the alleged sexual assaults. The Crown says that complaint evidence was largely unchallenged and uncontradicted.
The Crown cavils with the proposition by the applicant that this is not a case where doubt experienced by the appellate court can be resolved by reference to the jury's advantage in seeing and hearing the evidence in circumstances where the jury did have a doubt about the reliability and credibility of the complaint in respect of her evidence on counts 1 and 2. The Crown maintains that the advantage enjoyed by the jury of seeing and hearing the evidence must be assessed by reference to the nature of the present case, being a case where the principal evidence against an accused person is given by a complainant.
The Crown says that issues of credibility were very much matters for the jury and the verdicts show that the jury accepted the complainant as a credible and reliable witness. It is submitted that, upon a consideration of the whole of the evidence in the trial, including the evidence relied upon by the applicant, and recognising the advantage the jury had of seeing and hearing the evidence given in the atmosphere of the trial, no doubt should be experienced of the applicant's guilt on each of the counts in the indictment. The Crown says that the jury was entitled to accept the evidence of the complainant; that the jury had had the opportunity of seeing and hearing her give evidence and it is plain from the jury's verdicts that they accepted the complainant as a credible and reliable witness; and that none of the matters relied upon by the applicant (at [52] of his submissions) was such as to have caused the jury to have reasonable doubt about his guilt nor are they of such significance as to cause this Court to entertain a doubt that the jury ought to have had.
The Crown argues that the verdicts show that the jury did not believe the applicant's denials of the acts which constituted the offences. The Crown maintains that it was open to the jury to reject the applicant's denials and to accept the complainant's evidence.

Determination

As adverted to above, Senior Counsel for the applicant argues that there must be a focus not only on the acquittals but also on the counts on which there were convictions (relying, inter alia, on MacKenzie), arguing that if there were only to be a focus on the former then there might be an explanation in the present case for the inconsistent verdicts but that the verdicts are difficult to reconcile with each other when all matters are taken into account (and that they cannot be reconciled by reference to an assumption that the jury accepted the complainant) (see the oral submissions at AT 1-2). In that regard, I have considered the evidence that was before the jury in relation to each of the counts, focusing both on the acquittals and the guilty verdicts.
I have concluded that there is indeed a rational and logical explanation for the differences in the verdicts, and that the explanation is to be found in the complainant's evidence as to the reason that she initially told DSC Harman and Dr McIntyre that the sex was consensual at the start (see above) whereas at the trial she was emphatic that there was no consent. That explanation was understood by the Crown (see the Crown's closing address) to be that the complainant did not appreciate the legal concept of consent. However, I consider that it was open to the jury to have understood from the complainant's evidence that she was there (quite fairly) acknowledging that the applicant might have perceived (from the fact that she had stopped physically resisting) that she was consenting to the initial sexual activity. That makes it understandable that the jury may have had a reasonable doubt as to the applicant's knowledge (be that actual or based on advertent or inadvertent recklessness) of lack of consent so as to ground the acquittal verdicts; whereas there was no such basis or a doubt as to the issue of consent on counts 3 to 5 if the jury accepted the complainant's evidence as to her physical resistance to the sexual conduct during the penile/vaginal sexual activity and afterwards.
Having carefully reviewed the evidence I am not left with a reasonable doubt as to the applicant's guilt on counts 3 to 5 of the indictment. It is quite properly conceded by the applicant that the complainant's credibility was supported by the complaint evidence. The inconsistencies in that evidence (for example that Dr McIntyre's record of the sequence of complaint given by the complainant is that the violence came before the penile/vaginal sex and there was a different sequence in the acts - the digital penetration coming after the penile vaginal sex contrary to the complainant's account at trial, which the applicant accepts is not crucial - see AT 8), do not cause me to have such a doubt.
Accordingly, I have concluded that the appeal should be dismissed.

Orders

For the above reasons, the applicant's application for leave to appeal should be granted but the appeal dismissed.
HARRISON J: I agree with Ward P.
DHANJI J: In this matter, I have had the considerable advantage of reading the reasons of Ward P in draft. I agree the appeal must be dismissed.
The applicant accepted that there was, what he described as, a "crude" logic to the verdicts. I would substitute "crude" for "obvious", at least in the first instance. As Ward P has explained, whether a verdict of guilty is unreasonable within the first limb of s 6 of the Criminal Appeal Act 1912 (NSW) on the basis of asserted inconsistency with a verdict or verdicts of acquittal on different counts on the indictment, is to be determined in accordance with MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35. As her Honour points out, the test is one of logic and reasonableness.
As noted above, there is clearly, as is accepted by the applicant, a logic to the verdicts. There was, in my view, a very strong case that the complainant was sexually assaulted by the applicant, given the combination of opportunity, the evidence of the complainant's otherwise unexplained distress, and her immediate complaint. The case was not equally strong, as reflected by the verdicts of the jury, with respect to each of the sexual acts alleged in the various counts on the indictment. As has been set out by Ward P, the initial complaint was the complainant's nodding acquiescence to the question of whether it was a "bad experience with a boy". Subsequent complaints were, while consistent with the complainant having been sexually assaulted, not all consistent with her lack of consent to each of the sexual acts she said occurred.
On the evidence of the complainant, the sexual acts the subject of each count occurred in the order in which they appeared on the indictment. In a complaint made to DSC Harman, the complainant said the sexual intercourse was consensual at the start. On this version, the complainant said that the intercourse became non-consensual during the course of penile vaginal intercourse, when the applicant became aggressive. In her complaint to Dr McIntyre, the complainant also said that intercourse was initially consensual but became non-consensual during penile vaginal intercourse. While the complainant told Dr McIntyre that digital penetration occurred after consent was withdrawn, given that her evidence was this act occurred prior to penile vaginal intercourse, the jury were entitled to doubt this act did in fact occur after penile vaginal intercourse.
The above is sufficient to demonstrate that there was a clear logic to the verdicts based on the accounts given to DSC Harman and Dr McIntyre. That logic is to be understood in the context that the jury were given the usual directions as to the need to consider each count separately, that they could accept some parts, but not other parts, of what a witness said, and further, that any doubt they had with respect to any one count, was to be taken into account in determining whether they were satisfied beyond reasonable doubt as to any other count in the indictment.
Despite the above, the applicant maintains that the verdicts of guilty cannot stand with the acquittals on counts 1 and 2. In essence, as I understand the submission, but putting it in the terms used in MacKenzie v The Queen, while the verdicts may be logical, they are not reasonable. The applicant contends that a doubt as to the occurrence of counts 1 and 2, based on the complaints to DSC Harman and Dr McIntyre, reflected a doubt as to the complainant's narrative and, thus, should have manifested in acquittals on all counts. I do not accept the submission.
Prior to the decision of a five judge bench of this Court in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, a view had been taken, in a number of decisions of this Court, that the effect of the High Court's decision in Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 was that where, in a sexual case involving multiple counts, the only direct evidence of the commission of the offences is that of the complainant, and a jury is, for any reason, not satisfied beyond reasonable doubt that the complainant was telling the truth in relation to one count, it is not open to the jury to convict the accused on any count on the indictment: see, particularly, R v RAT [2000] NSWCCA 77; (2000) 111 A Crim R 360 at [46] (per Dunford J). In R v Markuleski, the Court did not accept that Jones v The Queen was authority for such a proposition. Spigelman CJ said (at [31]) that "[n]othing in Jones casts any doubt on the appropriateness of a jury accepting the witness' evidence in one respect, whilst retaining a reasonable doubt about the commission of events about which that same witness is the only substantive witness". Wood CJ at CL reached the same conclusion at [205] (and see more generally at [233]-[240]). Grove J at [271], Simpson J at [324] (although her Honour reached a different result on the application of those principles), and Carruthers AJ at [344], agreed with Spigelman CJ.
Spigelman CJ, in coming to the above view, conducted a detailed analysis of Jones v The Queen and the law in this area more generally. His Honour (at [79]) acknowledged that "[d]ifficult issues arise when a reason for differentiating between the verdicts does exist but that reason relates to the credibility - whether in terms of veracity or reliability - of an uncorroborated complainant". His Honour (at [99]) said it was "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".
The Chief Justice concluded (at [125]): "… 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. …"
Having regard to his conclusions, his Honour observed that the traditional direction given as to considering each count separately should be supplemented in "word against word" cases by making some reference to how a finding on one count that the jury could not accept the complainant beyond reasonable doubt, should be taken into account with respect to other counts. His Honour (at [188]-[191]) suggested a number of directions apposite to different circumstances, of which one was in terms functionally similar to that given here and which has come to be known as a "Markuleski" direction. It is noted that other potential directions adverted to by Spigelman CJ, which might be appropriate in a particular case, such as a direction to the jury to the effect that, in the event they have a doubt as to the complainant's evidence in relation to one count it might be difficult to see how they would not have a doubt as to the other counts, were not sought here.
Subsequent to the decision of this Court in R v Markuleski, the issue of inconsistent verdicts was again before the High Court in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53. There, an argument that this Court misunderstood or misapplied Jones v The Queen was expressly rejected by Gleeson CJ, Hayne and Callinan JJ at [32] (see also at [35], and to similar effect per McHugh, Gummow and Kirby JJ at [89]). Gleeson CJ, Hayne and Callinan JJ referred to various matters which might be properly regarded as justifying a jury differentiating between different counts charged with respect to a single complainant. Included amongst the various considerations that might legitimately justify findings of guilt with respect to some counts but acquittals with respect to others, their Honours included the situation where the complainant has been shown to be "more reliable about some parts of his or her evidence than about others": at [34]. That observation is apposite to the present case.
The present was not a case where the jury's doubt as to the commission of counts 1 and 2 necessarily so damaged the complainant's credibility with respect to the remaining counts that it was not open to the jury to convict on those counts. Indeed, accepting the logic discussed above, it was the complaints to DSC Harman and Dr McIntyre that led to the acquittals on counts 1 and 2. It would, in the circumstances of this case, be a rather odd result if these complaints, which added to the strength of the case on counts 3 to 5 somehow required the applicant to be acquitted on those counts. This is particularly so in the context of what was, as I have indicated above, in my view, a very strong case that the complainant was sexually assaulted by the applicant.
This is far from a case where "no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion": MacKenzie v The Queen at 366 (per Gaudron, Gummow and Kirby JJ). The appeal should be dismissed.

Amendments 18 October 2023 - Addition of counsel on coversheet 22 November 2023 - [152] 'convicted' to 'acquitted' DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2023

Crimes Act 1900(NSW)ss 61I, 61KC(a), 344A(1)

Evidence Act 1995(NSW)s 38(1)(a)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (29 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (20)

Cited By (1)