[2015] NSWCCA 288
AS v R [2022] NSWCCA 291
Barca v The Queen (1975) 133 CLR 82
[1975] HCA 42
Bolton v R [2023] NSWCCA 211
Coughlan v The Queen (2020) 267 CLR 654
[2020] HCA 15
Dansie v The Queen (2022) 274 CLR 651
Source
Original judgment source is linked above.
Catchwords
[2022] NSWCCA 136
Aravena v R (2015) 91 NSWLR 258[2015] NSWCCA 288
AS v R [2022] NSWCCA 291
Barca v The Queen (1975) 133 CLR 82[1975] HCA 42
Bolton v R [2023] NSWCCA 211
Coughlan v The Queen (2020) 267 CLR 654[2020] HCA 15
Dansie v The Queen (2022) 274 CLR 651[2022] HCA 25
Dhanhoa v The Queen (2003) 217 CLR 1[2003] HCA 40
Edwards v The Queen (2021) 273 CLR 585[2021] HCA 28
Gardiner v Regina [2006] NSWCCA 190[2021] HCA 36
Houshyar v R [2022] NSWCCA 245
JL v R [2023] NSWCCA 99
Lane v R [2013] NSWCCA 317(2013) 241 A Crim R 321
Latu v R [2023] NSWCCA 19
Lee v R [2023] NSWCCA 203
M v The Queen (1994) 181 CLR 487[1994] HCA 63
MFA v The Queen (2002) 213 CLR 606[2002] HCA 53
Peacock v The King (1911) 13 CLR 619[1911] HCA 66
Pell v The Queen (2020) 268 CLR 123[2020] HCA 12
Plomp v The Queen (1963) 110 CLR 234[1963] HCA 44
The Queen v Baden-Clay (2016) 258 CLR 308[2016] HCA 35
The Queen v Hillier (2007) 228 CLR 618
[2011] HCA 13
Trudgett v R (2008) 70 NSWLR 696
Judgment (27 paragraphs)
[1]
Z v R [2022] NSWCCA 8
Zhou v R [2021] NSWCCA 278
Category: Principal judgment
Parties: Nicholas Marco (Applicant)
Rex (Respondent)
Representation: Counsel:
[2]
MW Smith (Applicant)
E Nicholson (Respondent)
[3]
Solicitors:
McGirr & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2020/000249518
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication or broadcast of the name of, or any matter which could identify the complainant is prohibited.
Decision under appeal Court or tribunal: Parramatta District Court
Jurisdiction: Criminal
Date of Decision: 14 November 2022
Before: Payne DCJ
File Number(s): 2020/000249518
[4]
[This headnote is not to be read as part of the judgment]
The applicant was convicted in November 2022 following a jury trial in the District Court on two counts of sexual intercourse without consent (contrary to s 61I of the Crimes Act 1900 (NSW)) and one count of attempted sexual intercourse without consent (also contrary to s 61I). In April 2023, the applicant was sentenced to an aggregate sentence of 4 years 4 months with a non-parole period of 2 years 9 months. The applicant was on bail pending the hearing of the appeal.
The events in question occurred at the house of a friend of the applicant (Ben Nies). The complainant and Ben Nies were in a casual sexual relationship at the time, and the offending was alleged to have occurred while the complainant was in Ben Nies' bedroom, while Ben Nies had briefly left the bedroom.
The applicant ultimately pressed two grounds of appeal: ground 1: that the identification direction given to the jury was erroneous, on the basis that a direction as to "recognition evidence" should have been given (rather than one solely as to "identification evidence"); and ground 3: that the verdict of guilty on each count was unreasonable, on the basis that the complainant's evidence was contradicted by the evidence of Ben Nies, and Ben Nies' mother (Mrs Nies), and that the jury could not exclude the reasonable possibility that it was another person who had sexual intercourse with the complainant.
Held (Ward P, Walton and Fagan JJ each agreeing) refusing leave to appeal in respect of ground 1, granting leave to appeal in respect of ground 3, and dismissing the appeal in respect of ground 3:
1. As to ground 1: The complainant's evidence was properly characterised as "identification evidence", and the trial judge's direction was therefore adequate (Ward P at [62], Walton J at [127], Fagan J at [130]). Even if the evidence was properly characterised as recognition evidence, the failure to give an additional direction did not give rise to a real risk of a miscarriage of justice (Ward P at [63], Walton J at [127]). The absence of a "recognition direction" had no tendency to affect the verdicts (Ward P at [64], Walton J at [127], Fagan J at [134]).
Trudgett v R (2008) 70 NSWLR 696; [2008] NSWCCA 62; Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36; Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 applied.
1. As to ground 3: Even full acceptance of the evidence of Mrs Nies would not require the jury to have doubt as to the applicant's guilt, as her evidence was not inconsistent with that of the complainant (Ward P at [118], Walton J at [127]). The conflicts between the evidence of the complainant and that of Ben Nies were presented to the jury, which was invited to form their own conclusions as to the reliability and credibility of each witness (Ward P at [121], Walton J at [127], Fagan J at [136]). Any doubt the jury might have had is not one that could not be resolved by reference to the jury's acceptance of the complainant's credibility assessed by reference to the evidence of the other witnesses (Ward P at [123], Walton J at [127], Fagan J at [136]).
2. Once the jury had excluded Ben Nies as the person with whom the intercourse occurred, there was no plausible explanation for anyone other than the applicant to have been the male involved (Ward P at [122], Walton J at [127]). The Court was not left with reasonable doubt as to the applicant's guilt (Ward P at [123], Walton J at [127], Fagan J at [137]).
M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 applied.
The applicant's sentence was varied to an aggregate sentence of 4 years 4 months imprisonment (with a non-parole period of 2 years 9 months) to commence on 6 December 2023 and expiring on 5 April 2028. The applicant will be eligible for release on parole on 5 September 2026.
[5]
JUDGMENT
WARD P: The applicant was convicted on 14 November 2022, following a jury trial before Payne DCJ in the District Court of New South Wales at Parramatta, on two counts of sexual intercourse without consent (s 61I of the Crimes Act 1900 (NSW) (Crimes Act) and one count of attempted sexual intercourse without consent (s 61I of the Crimes Act)). The indictment had specified an alternative count (count 4) of intentional sexual touching (contrary to section 61KC(a) of the Crimes Act) in relation to the third count on the indictment but in light of the conviction on the third count no verdict was returned on the alternative count.
On 26 April 2023, the trial judge sentenced the applicant to an aggregate sentence of 4 years 4 months imprisonment, with a non-parole period of 2 years 9 months, commencing on 26 April 2023. There is no challenge to the sentence imposed on the applicant. The applicant has not served any time in custody in relation to these offences, having been first granted bail before sentence and then being granted bail by the sentencing judge on 26 April 2023.
The applicant filed a notice of appeal on 17 August 2023, raising three grounds of appeal but ultimately pressed only the following two grounds of appeal:
Ground 1: The identification direction given to the Jury was erroneous.
…
Ground 3: The verdict of guilty on each count was unreasonable.
The applicant accepts that leave to appeal is required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act), as neither of those grounds involves a question of law alone. Further, leave is required in respect of ground 1 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) since there was no request at trial for the direction now said to have been required (a "recognition" direction).
For the reasons that follow, leave should be refused in relation to ground 1 but granted in relation to ground 3; and the appeal should be dismissed.
[6]
Evidence
As there is an unreasonable verdict ground of appeal, it is necessary to consider the evidence at trial in some detail. However, by way of summary, the offending occurred following an event described as a "gathering" or "get-together" at the home of a mutual friend of the applicant and the complainant (Mr Benjamin Nies) on 2 May 2020. Two other friends were present during the evening, as were Ben Nies' parents (Chris and Narelle). Luke Nies (Ben Nies' older brother) was out during the evening but returned to the house between 12am and 1am with his girlfriend.
After the event finished, the complainant and Ben Nies went to his bedroom; the applicant was on a couch in the family room. Late on 2 May 2020 or in the early hours of 3 May 2020, after some sexual activity with Ben Nies, the extent of which was disputed, Ben Nies left his bedroom for a short period of time. The Crown case was that, during the time that Ben Nies was out of his bedroom, the applicant entered the bedroom (which was completely dark at the time), got into the bed and engaged in sexual intercourse (digital penetration - count 1; and oral intercourse - count 2) with the complainant; and that the applicant then attempted to have penile-vaginal intercourse with the complainant (count 3 and the alternative count 4) (see 7/11/2023; T 2.13-32).
The Crown case was that the complainant did not consent to any act of intercourse; that initially the complainant thought that the person in the room with her was Ben Nies but that, at a time between counts 2 and 3, the complainant came to believe that the person in the room with her was the applicant (based on feeling the applicant's hair and arms) (7/11/2023; T 2.25-29). The complainant was distressed and physically resisted the person who was in the room with her, who then left the bedroom (7/11/2023; T 2.32-35).
The defence case was that the applicant was not the person who had been in the bedroom with the complainant (7/11/22; T 6.43-45). The applicant denied that he had ever had sexual intercourse with the complainant and denied that he had entered the room (9/11/22; T.267.36-268.40). The defence case was that the Crown could not exclude the possibility that the offender was one of the other males in the house at the time (i.e., Ben Nies, his father Chris Nies or his brother Luke Nies) (10/11/22; T.27-28).
[7]
Complainant's evidence
The complainant's evidence was that she had known Ben Nies while she was at primary school and then high school; and the complainant described her relationship with Ben Nies as that of close friends (7/11/23; T 9.4-27). The complainant's evidence was that at the time of the incident she had been in an ongoing casual sexual relationship with Ben Nies (since New Years' Eve 2019) but she denied that on the evening in question she had had sex with Ben Nies (8/11/22; T 61.31-49; 8/11/22; T 87.21-23). The complainant had also known the applicant at high school but said that they were not very close friends (7/11/22; T 10.9-10).
The complainant had been drinking alcohol during the evening and there was an issue at the trial as to her level of intoxication (7/11/22; T 12.43-50) (as to which see further below). The complainant acknowledged that at some point in the evening she had vomited (7/11/22; T 13.17-18).
The complainant's evidence was that the applicant had been flirting with her during the evening and that when she was on the lounge in a common area of the house (after she had vomited) the applicant approached her and tried to lie on the lounge next to her (7/11/22; T 14.30-50; 15.33-40). The complainant's evidence was that the applicant was making sexual advances to her, including touching her, but she had communicated that she was not interested (7/11/22; T 15.2-20). In cross-examination the complainant said that the applicant was trying to touch her on the leg, but she could not recall where else (8/11/22; T 106.2-13). The applicant denied the events on the lounge occurring, and the acts alleged by the complainant were not seen by either Ben Nies or his mother (Mrs Nies), who had a medical condition that meant that she had not slept much or at all during the night and whose evidence was that she was walking around the house during the course of the night (9/11/22; T 254.20-33; T 195.37-47; T 213.39-42).
In relation to her level of intoxication on the night, the complainant said that she had "about two alcoholic drinks" that she said were pre-mixed (7/11/22; T 12.46-13.9). The complainant said that she had not eaten at all, and that after consuming the two drinks she felt unwell to the point where she vomited and went to lie down on a lounge in the loungeroom (7/11/22; T 12.11-24). In cross-examination, the complainant's evidence was that the alcohol she was drinking was pre-mixed in a cup as opposed to a pre-mixed can with a fixed quantity of alcohol (8/11/22; T 64.49-65.7).
[8]
Complainant's sister
The complainant's sister gave complaint evidence regarding the disclosure that the complainant had made to her about the events at the party. The complainant told her sister that there was a point when she was passed out for an hour (8/11/22; T 137.26-34).
The complainant did not recall saying to her sister that there was a point in the night where she was "passed out on the bed". Nor could she remember a point in the night where she was in fact passed out on Ben Nies' bed (8/11/23; T 73.6-114.40).
[9]
Complainant's stepmother
The complainant's stepmother also gave complaint evidence regarding the disclosure that the complainant had made to her about the events at the party.
The complainant reported to her stepmother that her level of intoxication was "quite tipsy" (8/11/22; T 146.21-27).
[10]
Ben Nies
Ben Nies gave evidence about the gathering or get together that occurred on 2 May 2020, including as to who was present and the events at the house on that evening.
Ben Nies gave evidence that over the course of the evening he had had sexual intercourse with the complainant twice in his bedroom; once before leaving to go to the bathroom and once after returning (9/11/22; T 177.40-47; T 198.48-199.5; T 199.21-22). Ben Nies said that he had had both digital and oral intercourse with the complainant (9/11/22; T 199.17-19; T 199.24-25). His evidence was that at the time that he and the complainant first went to the bedroom he saw the applicant lying on the couch (9/11/22; T 177.15-29). Ben Nies' evidence was that he did not see anyone when he went to the bathroom (9/11/22; T 179.46-50).
Ben Nies' evidence was that the complainant did not seem "extremely intoxicated" to him (9/11/22; T 174. T 202.18-21).
[11]
Narelle Nies
Ben Nies mother, Mrs Narelle Nies, also gave evidence as to the events at the house on the evening of 2 May 2020.
Mrs Nies gave evidence that she was suffering from a medical condition on the night of the alleged assault, as a consequence of which she was walking round the house for much of the night and did not get any sleep at all (9/11/22; T 205.3-4; T 205.34-46; T 206.37-45). Relevantly, Mrs Nies gave evidence that she had been awake throughout the period from 12am to 6am, in pain due to her gallbladder, and moving around between her own bedroom, the toilet and the lounge/dining area (9/11/22; T 210.14-22). Mrs Nies' evidence was that this included periods when she was in the toilet with the door closed (9/11/22; T 207.8-9).
Mrs Nies said that she did not hear anything except talking during the night and heard nothing in the nature of the screaming that was alleged by the complainant (9/11/22; T 208. 6-13; T 213.44-214.20). Mrs Nies made a number of observations of the applicant sleeping on the lounge during the relevant period of the night (9/11/22; T 205.49-50; T 209.9-23; T 209.44-45).
Mrs Nies saw the applicant asleep on a few occasions through an arched window looking into the lounge room (9/11/22; T 209.19-45). The first time she saw him was at about 1am (i.e., at a time that appears to have been after the episode in the bedroom) (9/11/22; T 206.2-4).
Mrs Nies' evidence that she did not see anyone when she was walking about included her evidence that she did not see Ben Nies leaving his bedroom - either to go to the bathroom (according to his own evidence) or to go outside for a cigarette (on the complainant's evidence) (9/11/22; T 208.23-26).
[12]
Evidence from another friend
A witness who did not attend the get together gave evidence as to a video call with the complainant on a social media application called "Houseparty" (described by the witness as "kind of like Facetime" - see 8/11/22; T 154.34-36) and as to her observations of the complainant at that time.
This witness gave evidence that she spoke to the complainant via telephone at about 10.30 or 11pm on the night of the allegations and the complainant appeared mildly intoxicated in that she was "slurring her words a little bit" (8/11/22; T 154.24-36; T 155.1-3). The witness was sufficiently concerned to tell the complainant that she should wait to get an Uber home because of her level of intoxication (8/11/22; T 155.33-34).
The complainant could not recall being told by this friend during a phone call on the night that she should wait until she had "sober[ed] up" before she caught an Uber home (8/11/22; T 70.30-31). Indeed, the complainant told the police that the person she spoke to on the phone was in fact at the party (8/11/23; T 56.39-45). The complainant did concede that she had a "very hazy memory" for some parts of the night but said she had no difficulty recalling events in the bedroom (8/11/22; T 70.39-41). As noted, in examination in chief, the complainant said that by the time of the events on the lounge (in terms of her intoxication) she "felt a bit better" and "was aware of everything I was doing and what was going on" (7/11/22; T 15.28-31).
[13]
Plain Clothes Senior Constable Tiegan Yung
Plain Clothes Senior Constable Yung, the police officer in charge of the investigation, gave evidence about the investigation generally. It is not necessary here to recount that evidence.
[14]
Documentary evidence
The Crown tendered a diagram of Ben Nies' room (Ex A), Uber records establishing the time the complainant arrived and left the Nies home (Ex C), and a recording of body worn video that depicted the complainant's first account given to police (Ex B).
The applicant tendered a diagram of the Nies home (Ex 1), photographs of the lounge room and outdoor area at the Nies home (Exs 2 to 4) and a photograph depicting the applicant's haircut taken on 2 May 2020 (Ex 5).
[15]
Applicant's evidence
The applicant gave evidence at the trial. He denied engaging in any sexual conduct or behaviour with the complainant (9/11/22; T 255.25-47; T 267.36-268.40); denied flirting or making advances toward the complainant (9/11/22; T 254.20-22; T 260.9-19); denied touching the complainant in any way on the lounge (9/11/22; T 254.24-33; T 263.47-264.16); and denied that he found the complainant attractive (9/11/22; T 258.39-46). The applicant's evidence was that the complainant and Ben Nies had gone to the bedroom; that he (the applicant) had gone to sleep and not woken up again until the morning; and that there was never a point where he was in Ben Nies' bedroom with the complainant and that at all relevant times he was asleep on the lounge (9/11/22; T 254.4-7; T 255.45-50). The applicant gave evidence that there was a point in the night where the complainant was slurring her words and stumbled on one occasion (9/11/22; T 250.45-47).
[16]
Character evidence
The applicant called evidence of his good character from a female witness to the effect that she had never seen him force himself on anyone or show signs of aggression; and that he was respectful and a good person to be around (9/11/22; T 301.20-25; T 301.36-39).
[17]
Directions
The trial judge gave the jury a direction about the identification evidence (as required by s 116 of the Evidence Act 1995 (NSW) (Evidence Act)). That direction included an instruction as to the need for special caution before accepting evidence of identification, and the reasons that such evidence might be unreliable (10/11/22; T 25-26). The trial judge directed the jury that special caution was needed because of the possibility that an honest witness might be mistaken in their identification of a person. The direction also addressed the circumstances in which the complainant made her observations of the person in the bedroom and the potential impact on reliability (10/11/22; T 26).
After the identification direction was given to the jury, defence counsel sought a redirection in order to include a reference to the complainant's intoxication being a factor affecting the reliability of identification evidence and also a reference to the presence of two other male persons in the house (10/11/22; T 27). The trial judge gave the redirection that was sought (10/11/22; T 28). No request was made for a direction (or redirection) as to "recognition evidence".
[18]
Applicant's submissions
As indicated above, the applicant accepts that leave is necessary to raise this ground given that no direction was sought as to the dangers which attend "recognition evidence" (referring to r 4 of the Criminal Appeal Rules).
Emphasising in his submissions that directions on identification evidence were critical in a case resting on the identity of the person who engaged in intercourse with the complainant, the nub of the applicant's argument on ground 1 is the distinction between "identification evidence" and "recognition evidence". The direction that the applicant argues the jury should have been given is as follows (set out at [10] of his written submissions dated 17 August 2023):
In this case the evidence of the Complainant is that she recognised the Accused. It is perhaps easier to understand the possibility of error when the evidence is given by someone who has not previously known the other person, but errors may also occur even when the witness has previously known the other person - in this case the Accused. Mistakes have been known to be made by friends and even by relatives of a person who thought that it was their friend or relative whom they had identified. This is something you should bear in mind. Just because a witness claims to have known the person, there remains a possibility of mistake.
The applicant argues that in the absence of a "recognition direction" there remains the real possibility that one or more members of the jury failed to give proper effect to the balance of the identification evidence direction that they were given (on the basis that the complainant was familiar with both the applicant and Ben Nies). The applicant says that it was critical that the jury were made aware that mistakes in identification are not confined to people who do not know each other or who are only passingly familiar with each other. It is submitted that the risk that the jury did not give full effect to the direction gives rise to the real risk that there has been a miscarriage of justice.
[19]
Crown's submissions
The Crown argues that the complainant's evidence about the person in the bedroom was not "recognition evidence"; rather, the relevant evidence (which the Crown accepts was "identification evidence") fell into two categories: first, the complainant's description of particular physical characteristics that she felt or perceived and, second, the complainant's opinion that in some respects (his hair and arms) the applicant resembled those characteristics that she felt or perceived.
The Crown says that the only "recognition evidence" that the complainant gave was the evidence that she knew and recognised the applicant at the get together on the relevant evening; and that fact was not in dispute in the trial. The Crown says that as there was no dispute about the reliability of the complainant's "recognition evidence" regarding the presence of the applicant at the "get together", this did not require a direction to the jury (citing Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 (Dhanhoa) at [18]-[22] (Gleeson CJ and Hayne J)). The Crown points out that the complainant gave no evidence that she recognised the applicant in the bedroom at the time of the assault; rather, she initially assumed that the person was Ben Nies; and that even once she began trying physically to resist the assailant, she still was not able to see the person at all as it remained dark in the bedroom.
The Crown maintains that the descriptive evidence as to the assailant's physical characteristics as to the assailant's hair and arms was neither identification nor recognition evidence. The Crown says that the complainant's evidence that the texture and length of the hair "matched" the applicant's hair and that the applicant had "skinnier" arms than Ben Nies fell within the definition of "identification evidence" as contained in the Dictionary to the Evidence Act because it was an assertion that the applicant resembled a person present at a place where an offence was committed at or about the time at which the offence was committed; but that it was not "recognition evidence".
The Crown points out that the absence of any positive recognition or identification by the complainant of the applicant as the person in the bedroom was emphasised by defence counsel in closing address at trial; and argues that any direction which suggested that the complainant had given evidence that she recognised the applicant in the bedroom would have been inapposite and likely to confuse or mislead the jury.
[20]
Determination
As noted by the Crown, the definition of "identification evidence" in the Evidence Act extends to recognition evidence (see Trudgett v R (2008) 70 NSWLR 696; [2008] NSWCCA 62 at [23]-[31] (Spigelman CJ, Hulme and Latham JJ agreeing); Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [68]-[69] (McClellan CJ at CL, James and Simpson JJ agreeing)) and there is a requirement to warn the jury regarding identification evidence that operates where the reliability of the identification evidence is disputed (Dhanhoa at [18]-[22] (Gleeson CJ and Hayne J)) though no particular form of words is necessary (see s 116(2) of the Evidence Act).
In the present case, whether the complainant's evidence amounted to "recognition evidence", as such, is a moot point. As the Crown argues, this was not a case where the complainant saw her assailant and gave evidence that she recognised him; it was a case where the complainant felt the assailant's hair and arms and formed the opinion that the applicant was the assailant because what she felt resembled the applicant (in comparison with Ben Nies). It was in that sense properly to be characterised as identification evidence, and the identification direction was more than adequate to satisfy the statutory obligation under s 116 of the Evidence Act.
However, even if characterised as recognition evidence, I am not persuaded that the failure to give the direction that the applicant now maintains was required constituted or gave rise to a real risk of miscarriage of justice. In that regard, the fact that defence counsel did not seek such a direction (though seeking other aspects of the identification direction to be the subject of redirection) strongly points to there being no miscarriage in relation to the identification direction. The process of reasoning by which the complainant had concluded that her assailant was the applicant was not restricted to the physical resemblance (in terms of hair and arms) that the assailant bore to the applicant; it included her perception that the applicant had been flirting and making sexual advances earlier in the evening; her awareness that (other than Ben Nies and his father and brother) the applicant was the only other male in the house when she went to bed; and her observation of the applicant when she went out to the lounge to confront him after the assault.
I do not consider that a recognition direction was necessary in the terms now suggested by the applicant but in any event I do not consider that its absence "was prejudicial in the sense that it had the meaningful potential or tendency to have affected the result" of the trial (see Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [41], [47] (Kiefel CJ, Keane and Gleeson JJ); Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74] (Edelman and Steward JJ); Saunders v R [2022] NSWCCA 273 at [92]-[93] (Simpson AJA, Hamill and Ierace JJ); Zhou v R [2021] NSWCCA 278 at [22] (Beech-Jones CJ at CL, as his Honour then was, Davies and Wilson JJ agreeing)).
[21]
Applicant's submissions
The applicant submits that the jury ought to have entertained a reasonable doubt as to whether he was the person who had sexual intercourse with the complainant; and argues that the Crown could not exclude the reasonable possibility that Ben Nies was that person. (Indeed, at trial it was submitted that Ben Nies' father or brother could also have been the assailant.)
The applicant challenges each of the propositions on which the complainant's evidence that he was the person who had sexual intercourse with her rested, namely: that he had made sexual advances to her earlier in the night including touching her on the lounge; that he was the only other person in the house; and that the complainant recognised him from the feel of his hair and arms.
As to the first, the applicant points to his denial of any such conduct earlier in the evening; and that neither Ben Nies nor his mother observed any such conduct.
As to the second, the applicant says that any reliance the complainant placed on him being the only other person in the house was misconceived since at the time of the incident both Ben Nies' father and his brother were in the house. The applicant says that there is no suggestion that either of those persons was ever spoken to by investigators. The applicant also points out that Ben Nies himself was plainly present in the house.
As to the third, the applicant points to the evidence of Ben Nies that he had both digital and oral intercourse with the complainant that night (in this regard, Ben Nies' evidence as to there being intercourse both before and after leaving the room related to the intercourse more generally; and was not specific as to the timing of the digital and oral intercourse he claimed to have had with the complainant); the evidence of Ben Nies that he saw the applicant lying on the couch when he and the complainant first went into the bedroom; and the evidence of Mrs Nies, that she was walking around the house that night, did not hear any screaming, and saw the applicant on the lounge during the relevant period of the night. The applicant also points to the evidence as to the complainant's intoxication (referred to above) and the inconsistencies in her account (such as whether the friend with whom she had a video call conversation had been at the house that night) or between her account and others (such as whether she had passed out that night).
[22]
Crown's submissions
The Crown submits (at [110] of the Crown's written submissions dated 26 October 2023) that none of the matters relied upon by the applicant is (individually or collectively) such as to have caused the jury to entertain a reasonable doubt about his guilt (nor are they of such significance as to cause this Court, on its independent assessment of the evidence, to entertain a doubt that the jury ought to have had).
The Crown says that the prosecution case against the applicant involved both direct and circumstantial evidence: the complainant's direct evidence about the events in the bedroom and her observations about the physical characteristics of the person who assaulted her; and circumstantial evidence relied upon to prove that the applicant was the person who had entered the bedroom.
The Crown accepts that in a circumstantial case the ultimate inference of guilt will not be available if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open on the evidence in the trial (referring to Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ); Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (Dansie) at [12], [37] (Gageler, Keane, Gordon, Steward and Gleeson JJ); Barca v The Queen (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ); [1975] HCA 42 (Barca) citing Peacock v The King (1911) 13 CLR 619 at 634 (Griffith CJ); [1911] HCA 66 (Peacock) and Plomp v The Queen (1963) 110 CLR 234 at 252 (Menzies J); [1963] HCA 44).
In that context, the Crown notes that, in considering whether the only rational inference available on the evidence is the guilt of the applicant, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence; the evidence is not to be looked at in a piecemeal fashion, at trial or on appeal (citing The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden-Clay) at [46]-[48] (French CJ, Kiefel, Bell, Keane and Gordon JJ); The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46] (Gummow, Hayne and Crennan JJ, Gleeson CJ agreeing)). It is noted that, in order for such an inference to be reasonable, it must rest upon something more than mere conjecture, and the "bare possibility" of innocence is not sufficient if the inference of guilt is the only inference reasonably open on the evidence (Baden-Clay at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Peacock at 661 (O'Connor J); Barca at 104 (Gibbs, Stephen and Mason JJ)).
[23]
Determination
The Crown has pointed to the following principles applicable in determining an unreasonable verdict ground. First, that the question to be addressed by the appellate court is "whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (see Dansie at [8] (Gageler, Keane, Gordon, Steward and Gleeson JJ); Baden-Clay at [66] (French CJ, Kiefel, Bell, Keane and Gordon JJ); M v The Queen at 494-495 (Mason CJ, Deane, Dawson and Toohey JJ)).
Second, that the question is one of fact, which the appellate court decides by making its own independent assessment of the whole of the evidence, both as to its sufficiency and its quality, to determine whether any of the verdicts of guilty are unreasonable, or cannot be supported, having regard to the evidence (Dansie at [8] (Gageler, Keane, Gordon, Steward and Gleeson JJ); SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14] (French CJ, Gummow and Kiefel JJ); M v The Queen at 492 (Mason CJ, Deane, Dawson and Toohey JJ)).
Third, that in answering the question whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, this Court must not disregard or discount the consideration that the jury was entrusted with the primary responsibility of determining guilt, and must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses (and in particular, the complainant) give their evidence (Dansie at [9] (Gageler, Keane, Gordon, Steward and Gleeson JJ); M v The Queen at 493-495 (Mason CJ, Deane, Dawson and Toohey JJ); Pell at [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); Baden-Clay at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ)).
Fourth, that this Court proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable (Pell at [38]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)) and examines the record of the trial to see whether, notwithstanding that assessment, the jury acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt either by reason of inconsistencies, discrepancies or other inadequacy; or in the light of other evidence (Pell at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)).
[24]
Conclusion
Therefore, I consider that the following orders should be made:
1. Pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, leave to appeal is refused in respect of ground 1.
2. Leave to appeal is granted in respect of ground 3.
3. The appeal is dismissed.
4. Vary the sentence of imprisonment of 4 years and 4 months imprisonment imposed by Payne DCJ on 26 April 2023, commencing on 26 April 2023 and expiring on 25 August 2027, with a non-parole period of 2 years 9 months expiring on 25 January 2026, to an aggregate sentence of 4 years and 4 months imprisonment commencing on 6 December 2023 and expiring on 5 April 2028, with a non-parole period of 2 years and 9 months, commencing on 6 December 2023 and expiring on 5 September 2026.
5. The applicant will be eligible for release on parole on 5 September 2026.
WALTON J: I agree with the orders proposed by Ward P in the disposition of the application for leave to appeal and, so far as it arises, the appeal in this matter.
Having reviewed the evidence and, giving due deference to the advantage enjoyed by the jury in assessing the evidence of witnesses, I agree with her Honour's reasons for the making of those orders.
FAGAN J: I have had the advantage of reading the judgment of Ward P in draft and I gratefully adopt her Honour's summary of the evidence at trial and the arguments on the application for leave to appeal. I agree with the orders proposed by her Honour.
[25]
Ground 1 - warning concerning identification
The direction that the applicant submits should have been given to the jury, quoted by Ward P at [53], was unnecessary. It would have been inappropriate and misleading. It has been framed, for the purposes of the argument on appeal, on the premise that the complainant gave evidence that she recognised the person who sexually assaulted her in the darkened bedroom as the applicant. But she did not give such evidence. The complainant's evidence concerned two physical characteristics of her assailant, which contributed to a circumstantial case by which the Crown established that that person was the applicant.
There was a sound evidentiary basis for the jury to conclude that the only males in the house were Ben Nies, Ben's father, his brother and the applicant. It was also open to them to accept that the father and brother were in their respective bedrooms with their own female partners. There was no evidence that either of them had shown, or was likely to have held, a sexual interest in the complainant - the girlfriend of their son and brother, respectively - or was aware that she was in Ben Nies' bedroom. The jury could infer that the person who carried out the sexual acts complained of was either the applicant or Ben Nies. The complainant's evidence about the hair and arms had a dual significance in the circumstantial proof that the person who entered the darkened bedroom was the applicant. It tended to show, first, that those features of the assailant were consistent with the applicant and, secondly, that they were not consistent with Ben Nies, with whom she had been in an intimate relationship for several months and with whose physical characteristics in these respects she could be expected to be familiar.
The Dictionary of the Evidence Act defines "identification evidence" to include the following:
(a) an assertion by a person to the effect that a defendant … resembles (visually, aurally or otherwise) a person who was, present at … a place where -
(i) the offence for which the defendant is being prosecuted was committed, or
(ii) an act connected to that offence was done,
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time,
The complainant's evidence concerning the hair and arms of her assailant may be said to fall within that definition, in that she asserted the applicant "resembles" the assailant in those two physical respects. Accepting that to be so, the judge considered that s 116 of the Evidence Act was engaged and that she was required to warn the jury of a special need for caution on their part before accepting identification evidence and to explain to the jury the reasons for caution, both generally and in the circumstances of the case. Her Honour did that in the following terms:
Judges have an experience with the law that members of the community generally do not have. Judges know that identification evidence may be unreliable and there are a variety of reasons why this is so. Evidence that the accused has been identified by a witness must be approached by you with special caution before you can accept it as reliable. These directions relate only to the reliability of the identification evidence given not to the honesty of the witness. … So here even if you thought [the complainant] was entirely honest in the evidence she gave you must still approach the task of assessing the reliability of her evidence with special caution. So, special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. [Her Honour made reference to the experience of the courts with respect to mistaken identification]. You must carefully consider the circumstances in which [the complainant] made her observation of the person. The circumstances in which the witness made her observation of the person can affect the reliability of identification evidence.
Matters raised in this case are that it was dark, there was no light in the room, the person who went into the room did not speak so she had no opportunity to actually observe him. The two features she relied upon [were] his hair and the difference in that hair to Ben's and the skinny arms as opposed to Ben. What I've done is to tell you about the need for special caution in coming to your decision about whether you accept the identification evidence. There is this need for special caution because of the potential unreliability of the evidence and I've told you the reasons why that may be so.
[26]
Ground 3 - unreasonable verdict
In order to determine the unreasonable verdict ground, I have considered the whole trial record. It leaves me with no sense of any reasonable doubt about the verdicts and no concern that an innocent man may have been convicted.
The complainant said that it was about midnight when she and Ben Nies went to his bedroom and lay on the bed. Her evidence was that they had kissed and cuddled for approximately 20 minutes when "he stopped in the middle of it", said he was going to smoke a cigarette and left the room. The complainant said that they had not had penetrative sexual intercourse while they lay together. She said the perpetrator entered "a couple of minutes" after Ben departed and that the sexual assaults then occurred in a rushed manner, against the complainant's protests and resistance, as earlier described. The complainant's evidence was that she was very upset and locked the door after her assailant had left. She remained alone in the room until Ben knocked and was admitted by her, which was about 20 minutes later. The complainant did not tell Ben all that had occurred but said, "Nico [the applicant] was in the room". Ben purported to refute that, saying, "Nico was asleep on the lounge".
Ben Nies gave evidence that he had full penetrative sexual intercourse with the complainant while they were lying on the bed after first entering his bedroom. He said that he only left for "between a minute and two minutes" to go to the bathroom, after which he returned to the complainant who was lying awake on his bed. He said, "We then continued to have sexual intercourse again". Ben Nies said that they then slept together until his alarm woke them at 6:00 am. The Crown was granted leave to cross-examine. The prosecutor put to Ben Nies the complainant's account of him leaving the room for a cigarette and finding the complainant very upset upon his return some time later. It was put to him that the complainant then alleged that the applicant had been in the room. Ben Nies denied all of that.
Defence counsel cross-examined Ben Nies to elicit that, when he came back from the bathroom as he claimed, the sexual acts he engaged in with the complainant included digital penetration and cunnilingus. That questioning was directed to raising a reasonable possibility that the acts described by the complainant and attributed by her to an assailant had in fact been carried out by Ben Nies himself, consensually. That putative possibility could not be reconciled with a number of aspects of the complainant's evidence: the thicker hair and thinner arms of the perpetrator, his haste, his lack of response to her objections and to her hitting him, the departure of the assailant without ever having spoken, the complainant's emotional reaction, her locking the bedroom door and her subsequent distressed assertion to Ben Nies that the applicant had been in the room.
[27]
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: 08 December 2023
The complainant accepted that the two alcoholic drinks she had consumed may have been enough to result in her slurring her words and being unsteady on her feet (8/11/22; T 66.2-18). The complainant said that it had been enough alcohol to make her vomit (8/11/22; T 66.20-21). In cross-examination, the complainant conceded she had indicated in her police statement that she was "very slightly intoxicated" but said that she was aware of her "choices and decisions" at the time that she went into the bedroom (8/11/22; T 66.41-67.4; T 68.7-19). The complainant had told the police officer on initial complaint that she was "drunk" but not to the point where she did not know what she was doing (8/11/22; T 71.15-16).
After the "gathering", the two other friends left the premises and only the Nies family members, the complainant and the applicant remained at the home (9/11/22; T 205.23-30).
The complainant's evidence was that she and Ben Nies went to bed at about midnight and that for about twenty minutes they were kissing and cuddling (7/11/22; T 17.4-19; T 21.18-35). The complainant denied that they had sexual intercourse on this occasion (8/11/22; T 87.21-23).
The complainant said that, at one stage, Ben Nies left the bedroom, telling her he was going outside to have a cigarette, and that a couple of minutes later, she heard the door open and someone entered the bedroom (7/11/22; T 21.50-22.14; T 23.45-50; T 27.18-38).
The complainant said that there were no lights on in the bedroom; that there was no light shining into the bedroom because both the door and blinds were shut (7/11/22; T 22.44-23.6); and it was dark inside the bedroom. The complainant was not able to see the person that entered the room at that time; she could hear the person enter but could not make out who the person was (7/11/22; T 27.30-34). As adverted to above, the complainant's evidence was that she initially assumed the person was Ben Nies (7/11/22; T 27.45-46). (The Crown case was that it was the appellant.)
The complainant's evidence was that the person who entered the bedroom got into the bed and began engaging in sexual activity with her; she said that he immediately pulled down her tracksuit pants and that "everything felt very rushed" (7/11/22; T 28.3-15). The complainant told the person (who she thought was Ben Nies) to stop but the person digitally penetrated her vagina, which hurt (7/11/22; T 28.20-29.12). The person then engaged in oral intercourse, putting his mouth on her vagina (7/11/22; 29.14-29). The complainant's evidence was that prior to the act of oral intercourse she screamed "Ben, stop" (7/11/22; 29.34-39; 30.3-7); and that after the oral intercourse commenced she put her hand to the person's head (7/11/22; 30.15-22).
The complainant said that she could feel that the hair "didn't' match" Ben Nies' hair (7/11/23; 30.28-29). The complainant said that "Ben, he had, like, a shaved head but it wasn't completely shaved, but it was shaved …" whereas the hair that she could feel was "longer hair - a longer, thicker type of hair" (7/11/22; 30.31-40). The complainant said that "there were just different textures and they just weren't the same" (7/11/22; T 31.8-10). The complainant gave evidence that, at about the same time, she was "feeling around the arms … and it just wasn't the same"; and that she believed that the person had "skinnier" arms than Ben Nies (7/11/22; T 30.43-31.1).
In cross-examination, the complainant accepted that there was a point where her pants were down, the person's face was pressed against her vagina and his mouth was on it; and that there was another point where she and the person were "pretty much face to face" (8/11/22; 93.31-94.40). While the complainant did accept that she had told the police officer that their heads were "pretty much face to face" (see T 94.35-37), she disputed that they were face to face (see T 94.39-43, where she said it was "not face to face"). The applicant emphasises that at no point during her description of events did the complainant ever describe feeling any type of beard on the person who had engaged in oral intercourse with her (the applicant notes that he had significant facial hair at that time whereas Ben Nies did not) (8/11/22; T 95.13-25; T 96.6-16).
The complainant felt the person's erect penis against her vagina, attempting penile-vaginal intercourse (7/11/22; 31.37-32.18). The complainant was waving her arms around and screaming "stop", and she made contact with the person's face (7/11/22; T 32.20-41). The person stopped and left the room (7/11/22; T 32.43-48).
As noted above, the complainant's evidence was that the room was dark and she said she was not able to see the person who had come into the bedroom. The complainant formed the opinion that it was the applicant in the bedroom because his hair and arms "matched" what she had felt, and he had been in the house at the time (7/11/22; T 33.6-19).
When asked whether (by the time the person left the room) she saw or knew who the person in the room was, the complainant's evidence was that "I had a feeling I knew who it was"; and that it was the applicant, saying that "[h]e was the only person still there at the party" (7/11/22; T 33.6-11). When asked why she thought it was the applicant, the complainant said "[b]ecause of the hair - it matched his hair - the texture of his hair. The length and just his arms…were just skinnier" (7/11/22; T 33.12-19). The complainant said that Mr Nies' hair was shaved (7/11/22; T 30.31-34; 8/11/22; T 60.9-14); and denied knowing that the applicant's hair was shaved at the sides. (Exhibit 5 was a photograph taken on 2 May 2020 which showed the applicant's hair shaved at the sides.)
The complainant's evidence was that she locked the bedroom door and was alone in the bedroom crying for a time after the applicant left the room (7/11/22; T 34.4-18). Ben Nies some time later knocked on the door and the complainant let him in (7/11/22; T 34.20-30). The complainant was upset (she said that she was hysterical) and told him that the applicant had come into the bedroom (7/11/22; T 34.32-34; T 35.2-3). The complainant said that Ben Nies said "it's okay" (7/11/22; T 34.45-47). (The complainant's evidence implies that this was said as a general way of comforting her, rather than as a response to hearing that the applicant was in the room; i.e., that Ben Nies was not suggesting to her that it was "okay" for the applicant to be in the room.) The complainant did not disclose the intercourse at that stage (saying that she did not "fully tell him what happened" and that all she said was that "Nico was in the room") (7/11/22; T 34.49-35.5). In cross-examination, the complainant said that when Ben Nies entered the room she said to him "Nico came in and I thought it was you" and that Ben Nies said "Nico was asleep on the lounge" (8/11/22; T 104.41-45).
In cross-examination, the complainant said that, after Ben Nies re-entered the room following the sexual intercourse, she left the room to go and find the applicant "because I knew it was him" (8/11/22; T 98.46-49); and that, after finding the applicant lying on the lounge, she shook and pushed him in an attempt to wake him up as she believed that he was pretending to be asleep, stating that she could tell he was awake because his eyes were moving (8/11/22; T 101.2-102.6). The complainant agreed with the proposition that the applicant "appeared to be asleep" (8/11/22; T 101.24-25). The complainant returned to the bedroom with Ben Nies, continued crying and fell asleep; she returned home the following morning (8/11/22; T 110.27-29). Ben Nies denied seeing the complainant acting in that way and Mrs Nies gave no evidence of seeing anything to that effect (8/11/22; T 199.35-200.8; T 213.44-49).
It was the complainant's evidence that when she woke in the morning she saw that the applicant was still in the house on the lounge (7/11/22; T 35.26-30).
When asked in chief where the applicant was when she and Ben Nies went to his bedroom, the complainant said "[h]e was supposedly asleep on the lounge" (7/11/22; T 23.21-22). The complainant's evidence was that she did not think she saw the applicant on the lounge (7/11/22; T 23.31-39).
The complainant disclosed the incident to a friend on 9 May 2020, and also to her sister the same day (7/11/22; T 36.1-10; T 37.4-12). The complainant told her stepmother about the incident a few days after that (7/11/22; 38.34-45). The complainant reported the incident to police on 18 May 2020 (7/11/22; 39.31-39).
In any event, even if the applicant's characterisation of the evidence as recognition evidence were to be accepted, the Crown argues that the applicant has not established that the absence of a recognition direction occasioned a miscarriage of justice in the particular circumstances of this case, having regard to the directions that were provided to the jury. The Crown argues that the absence of a specific reference to "recognition" by persons known to each other did not fundamentally alter the nature of the warning given by the trial judge as to identification evidence and says that the jury would have well understood that there was a need for special caution in determining whether to accept the complainant's evidence relevant to identification, and if it was accepted, in determining the weight which was to be given to it.
The Crown argues that defence counsel (having sought a redirection as to the identification direction) was clearly alert to the relevance of the identification direction to the specific issues in the trial, and had turned his mind to the content of the direction that should be given. It is submitted that the fact that there was no objection taken by defence counsel to the form of the direction on identification evidence (as it was ultimately given) is cogent evidence that in the atmosphere of the trial defence counsel saw no injustice in what was done (citing Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121] (Beazley P, Hall and Wilson JJ); Greenhalgh v R [2017] NSWCCA 94 at [42] (Basten JA, Button and N Adams JJ agreeing); and see also Latu v R [2023] NSWCCA 19 at [76]-[77] (Davies J, Bell CJ and Fagan J agreeing)).
Pursuant to r 4.15 of the Criminal Appeal Rules, I would therefore refuse leave to appeal in respect of ground 1.
The applicant submits (see at [40] of his written submissions dated 17 August 2023) that, after giving full effect to the caution (including the contended for recognition direction) with which it was necessary to assess the identification evidence, it was not open to the jury to be satisfied beyond reasonable doubt about the identity of the person who had sexual intercourse with the complainant.
In that regard, the applicant emphasises that the room was completely dark and says that the recognition was based on some feeling of the person's hair and arms in circumstances where no evidence was led about what each person was wearing on the night (and therefore no evidence as to whether the complainant's sensation of feeling arms was through clothing or not); no evidence that the complainant had previously touched the applicant's hair or arms; and a paucity of evidence as to the degree or frequency of previous sexual contact between the complainant and Ben Nies (with whom the comparison was being made). The applicant points to Ex 5 as showing that the applicant's hair was shaved on the side, and notes that the evidence was that Mr Nies had shaved hair.
The applicant submits that the complainant's evidence went no higher than that she had the "feeling" that it was the applicant, based at least in part on her assumption that the applicant was the only person remaining in the house. The applicant emphasises (as relevant to the assessment of the reliability of the complainant's evidence that she felt the person had longer hair than Ben Nies) the evidence of the complainant's intoxication that night (including: her own evidence that she vomited over the course of the evening; the evidence of the witness to the video call conversation that the complainant was slurring her words and that she was concerned about the complainant catching an Uber home given her level of intoxication; the applicant's own observations of the complainant being intoxicated; the complainant's various descriptions of how intoxicated she was (ranging from "very slightly" to "drunk"); and the complainant's concession as to her "patchy" memory) (see at [42] of the applicant's written submissions dated 17 August 2023). (Pausing here, the complainant did not use the word "patchy" to describe her memory; the closest the complainant gets on this is to accept that she had a "very hazy memory" or "some part" of the night - see 8/11/22; T 70.39-41.)
The applicant says that the identification evidence also falls to be assessed in light of the following matters: Ben Nies' evidence that it was he who had sexual intercourse on multiple occasions with the complainant that night; the complainant's evidence was that on concluding it was not Bem Nies, she screamed out "stop" but gave no evidence about how long she was touching the person's hair and whether it was sufficient to draw the conclusion that she drew; Mrs Nies' evidence that she was up all night, saw the applicant on multiple occasions sleeping on the lounge and heard nothing in the nature of the screaming suggested by the complainant; the response (attributed to Ben Nies in the complainant's 26 May 2020 police interview) that, after he re-entered the bedroom, the applicant "was asleep on the lounge"; the applicant's evidence that he was on the lounge at all relevant times (which the applicant says is to be assessed against the good character evidence); and the fact that "multiple" other males were in the house at the time of the sexual acts in the bedroom.
The applicant maintains that his version was supported by both Ben Nies (who said it was he who had sex with the complainant) and Mrs Nies, who saw the applicant on the lounge on multiple occasions and heard nothing exceptional during the course of the night. The applicant argues that the identification evidence (having regard to the complainant's intoxication) was of insufficient quality to remove as a reasonable possibility the applicant's version of events.
Thus, the applicant argues that it was not open to the jury to exclude the applicant's version of events as a reasonable possibility; relevantly, that it was not open to the jury to be satisfied beyond reasonable doubt that it was the applicant who had sexual intercourse with the complainant.
The applicant (at [44] of his written submissions dated 17 August 2023) says that this was not a case where the advantage that the jury had in seeing and hearing the witnesses give evidence was capable of resolving a doubt that he contends this Court should have; given that the complainant might be quite convinced that her asserted identification is accurate yet could be entirely wrong. Thus the applicant argues that any observations made by the jury add nothing to the qualitative assessment of the complainant's evidence (which he submits was of insufficient quality to sustain the verdicts of guilty).
In the present case, the Crown maintains (at [81] of the Crown's written submissions dated 26 October 2023) that the alternative hypotheses relied upon by the applicant as consistent with his innocence (i.e., that it may have been someone other than the applicant who had sexual intercourse with the complainant in the bedroom) do not rise above the level of mere conjecture or bare possibility.
The Crown points out that the only male persons in the house at the time were Ben Nies, his father and (depending on the time he returned to the house), his brother. The Crown says that (assuming that the complainant's evidence was accepted beyond reasonable doubt), Ben Nies was excluded as the person who was the assailant in the bedroom (noting, among other things, the complainant's evidence that the person in the bedroom had different physical characteristics to Ben Nies, namely, hair on top of his head, whereas Ben Nies had a shaved head; and skinnier arms). The Crown argues that the hypothesis that either Luke Nies (Ben's brother) or Chris Nies (Ben's father) could have been the assailant in the bedroom was not a reasonable inference from a consideration on the whole of the evidence.
In that regard, the Crown points to the following evidence as to the movements of the persons in the household that night: the complainant's evidence that she and Ben Nies went into the bedroom around midnight, and that Ben left the room to have a cigarette about twenty minutes later; the evidence that by the time the complainant went into Ben Nies' bedroom, his parents were in their own bedroom (noting the applicant's evidence that the rest of the family were sleeping by the time the group moved in from outside); and the evidence that Luke Nies arrived home sometime between midnight and 1am together with his girlfriend, and the pair went "straight to bed" in Luke's bedroom. The Crown notes that Mrs Nies gave evidence that she heard a door (which she assumed to be the sliding door between the meals/kitchen area and hallway) close at about 1am; and that she did not see any person (which the Crown says presumably included her husband and her son Luke) in the hallways during the times she was walking between her bedroom, the bathroom and the lounge/dining area. The Crown points to the floor plan of the home (Ex 1) which depicted the room layout and notes that, to walk from the family room (where the applicant was located) into Ben Nies' bedroom, would not require the applicant to have passed Mrs Nies' bedroom, bathroom or the lounge room door.
Emphasising the distinction between drawing an inference from facts disclosed in evidence and engaging in speculation (see Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321 at [109]-[110] (Bathurst CJ, Simpson and Adamson JJ)), the Crown says that the whole of the evidence in the trial does not allow for a rational inference that either Luke Nies or Chris Nies left his own bedroom, without being observed by any person (including in each case, his partner with whom he was sharing a bedroom) and then entered Ben Nies' bedroom for an unknown purpose and then, finding the complainant (alone) in the bedroom decided to engage in various forms of sexual intercourse with her.
In this regard, the Crown points out that there was no evidence in the trial from which an inference could be drawn that either Chris Nies or Luke Nies knew that the complainant was sleeping over in Ben Nies' bedroom, noting that it had not been a pre-arranged plan for that to occur.
Insofar as the applicant submits that the verdict is unreasonable because it was not open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt by reference to: the applicant's denials; the support for the applicant's account in some respects by Ben Nies and Mrs Nies; the complainant's intoxication (casting doubt on the identification evidence); and the fact that the complainant gave no evidence that the person in the bedroom had facial hair, the Crown argues as follows (at [84]-[104] of the Crown's written submissions dated 26 October 2023).
First, to the extent that the applicant suggests that his own testimony denying the conduct required the jury to entertain a reasonable doubt about his guilt, the Crown says that this "overstates the force of contradictory testimony in an appeal [on the basis of unreasonable verdict]", noting that a jury is not required to have a doubt because the evidence of a principal witness is contradicted by the applicant's evidence (here referring to Lee v R [2023] NSWCCA 203 (Lee) at [28] (Kirk JA, Lonergan J agreeing); and Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [53] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)). The Crown says that the applicant's version only remained a reasonable possibility if it was not negated beyond reasonable doubt by all the other evidence including the complainant's evidence (referring in this context to M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (M v The Queen) and Baden-Clay at [66] (French CJ, Kiefel, Bell, Keane and Gordon JJ)).
The Crown emphasises that juries are well able to evaluate evidentiary conflicts and the resolution of such matters is their quintessential role (citing RA v R [2020] NSWCCA 356 at [15] (McCallum JA, Button and Ierace JJ agreeing); Bolton v R [2023] NSWCCA 211 (Bolton) at [46] (Harrison J, Wilson and N Adams JJ agreeing); MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (MFA v The Queen) at [96] (McHugh, Gummow and Kirby JJ)).
In the present case, the Crown says that the jury was well placed to assess the complainant's evidence and to determine whether all or part of it should be accepted to the criminal standard, in a consideration of the whole of the evidence; and that it was open to the jury to reject the applicant's denials and to accept the complainant's evidence on the central allegations (referring by way of example to Ward v R [2022] NSWCCA 271 at [125] (Adamson J, Campbell and McNaughton JJ agreeing); Hamzeh v R [2022] NSWCCA 232 at [78]-[80] (Price J); AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 at [102]-[104] (Beech-Jones CJ at CL, Harrison J agreeing); Houshyar v R [2022] NSWCCA 245 at [136]-[142] (Garling J, Adamson and N Adams JJ agreeing); Lee at [28]-[29] (Kirk JA, Lonergan J agreeing)).
Second, as to the evidence of Ben Nies and Mrs Nies, the Crown identifies the flaw in this submission as being the presumption that the jury was required to accept the evidence of those witnesses. The Crown points to the orthodox directions given to the jury that the decision about what evidence was accepted or rejected was a matter entirely for the jury; and that the jury could accept the evidence of a witness in part and reject another part of it.
The Crown notes that on critical issues the evidence of Ben Nies was directly in conflict with the evidence of the complainant (such as whether they had had sexual intercourse in the bedroom); and that in closing submissions the solicitor advocate for the Crown invited the jury to reject the evidence of Ben Nies on the basis that he was giving untruthful evidence (10/11/22; T 313-314).
The Crown points to certain aspects of Ben Nies' evidence that it submits were not persuasive. First, the Crown points to his evidence in cross-examination that he did not speak to the complainant again after the night in question (apparently despite having been friends with her since high school and having had a sexual relationship with her for some months at that time) and, when put to him that he had spoken to the complainant after that date in which she had disclosed that the applicant had sexually assaulted her during the period that he was out of the room, his answer was that he was unable to recall. Second, when it was put to him that he had said that he did not believe the complainant, and she had then blocked him on all social media, Ben Nies' evidence was that he could not recall whether or not that had happened. The Crown says that these answers were unpersuasive and implausible and that the jury was entitled to assess the credibility of Ben Nies as a witness in that context.
As to the evidence of Mrs Nies, the Crown submits that this did not require the jury to have a doubt about the complainant's evidence. The Crown says that in some respects Mrs Nies was not a reliable witness, noting that her evidence was that the complainant was drinking a pre-mix Cruiser, whereas it is said that it was undisputed evidence that the complainant was mixing her own drinks of vodka and orange juice; and that Mrs Nies gave evidence that she heard the complainant leave the premises around 7am, which is not consistent with the objective evidence in Ex C. The Crown says that it was for the jury to assess the accuracy of her evidence regarding the weight to be given to her evidence and the accuracy of her memory.
The Crown further says that, even if accepted by the jury, Mrs Nies' evidence did not require rejection of the complainant's evidence.
As to Mrs Nies' evidence that she did not see anyone during the night, the Crown notes that on her own evidence she had spent periods when she was in the toilet with the door closed; that she did not purport to have been watching the applicant constantly throughout the night, and simply saw him asleep on a few occasions through the arched window; and that the first time she saw him was at about 1am (which the Crown says was after the episode in the bedroom).
The Crown places weight on the fact that Mrs Nies gave evidence that she did not see Ben Nies leaving his bedroom (whether to go to the bathroom, as he said he did, or to go outside for a cigarette, as the complainant said he told her he was going to do). The Crown points out that it was not in dispute in the trial that Ben Nies had left the bedroom for a period of time and returned; and notes that the evidence of Ben Nies was that when he left the bedroom he did not see or hear anyone, and he did not hear anyone moving around the house. The Crown says that the cumulative effect of this evidence is that it suggests that at the time that the offence occurred (when Ben Nies left his bedroom) it must have been at a time when Mrs Nies was not walking in the hallway or close by to Ben's room.
As to Mrs Nies' evidence that she did not hear anyone scream, the Crown notes that she did give evidence that at one stage she heard the complainant talking in the family room, and that later on she also heard the complainant and Ben Nies talking in Ben's bedroom; and that Mrs Nies accepted in cross-examination that there was a closed door between her and the family room.
The Crown says that the absence of evidence from Ben Nies or Mrs Nies that they saw the applicant making sexual advances towards the complainant is not significant. The Crown points out that the jury was not required to accept the evidence of these witnesses on this issue but in any event says that their evidence was not inconsistent with such advances having occurred but not having been observed by them. The Crown says that the nature of such an interaction is that it is likely to be a moment that occurs privately; and says that both witnesses were engaged in other social interactions (either with people at the premises or on a Zoom call) and it is not unexpected that either witness may not have observed the flirtation or advances of the applicant toward the complainant. It is noted that there is no requirement that a complainant's account be corroborated.
The Crown says that the acceptance or rejection of the evidence of these witnesses, the weight to be given to their testimony and whether it impacted on the acceptance of the complainant's evidence beyond reasonable doubt, were matters for the jury; and that their evidence did not require the jury to have a doubt about the applicant's guilt.
Third, as to the evidence about the complainant's intoxication, the Crown says that the evidence from all witnesses (other than the applicant) was that she was somewhat intoxicated, but not significantly so and knew what was going on around her. The Crown says that, in any event, the potential impact of any intoxication on her evidence and her identification evidence was a matter for the assessment of the jury; noting that this was a matter about which submissions had been made in closing address and about which the jury was directed by the trial judge (10/11/22; T 25-26).
Fourth, as to the applicant's facial hair, the Crown says that the jury was not precluded from being satisfied beyond reasonable doubt on all the evidence in the case merely because the complainant did not make any observations of feeling a beard on her vagina during the oral intercourse. The Crown notes that the complainant gave evidence that she did not feel a beard, but that it had not been what she was focused on at the time; and that the complainant said that when she was feeling the person's hair and arms she was scared and focusing on her realisation that "I knew it wasn't Ben" (8/11/22; T 128.33). The Crown points out that it is not uncommon for witnesses to remember specific details about the assaults but not tangential details (referring to JL v R [2023] NSWCCA 99 (JL v R) at [96] (Adamson JA, Ierace and Sweeney JJ agreeing); Reed v Regina [2006] NSWCCA 314 at [64] (Spigelman CJ, McClellan CJ at CL and Sully J agreeing)). Further, the Crown says that Ex 5 depicts the applicant's facial hair as being relatively short.
Similarly, the Crown submits that it was not particularly significant that the applicant's hair was shaved on the sides, pointing out that the complainant had felt on the top of the person's head, not the sides of his head; and that it was at the top of the person's head that she had felt longer hair with a different texture to Ben Nies' hair.
The Crown notes that these matters were drawn to the attention of the jury in closing addresses and included in the summing up of the trial judge; and submits that the jury was entitled to determine what significance to give to these aspects of the evidence assessing whether it was satisfied of the applicant's guilt beyond reasonable doubt. The Crown says that this evidence does not raise a doubt about whether the complainant was credible and reliable on the elements beyond reasonable doubt.
As to the applicant's contention that the jury had no advantage in this matter, the Crown cavils with this and says that this was a matter where issues of credibility starkly arose. In this regard, the Crown submits that the reliability and credibility of the complainant's direct evidence about critical issues was central to the circumstantial case that the person in the bedroom was the applicant, including the complainant's account of earlier advances that the applicant had made to her during the evening and his attempt at physically touching her, as well as her communication to him that she was not interested in that contact; the complainant's evidence about the degree of any sexual contact between her and Ben Nies in the bedroom; and the complainant's evidence regarding the applicant pretending to be asleep while she was shaking him shortly after the episode in the bedroom had occurred.
It is noted that the Crown's case was that Ben Nies was not giving truthful evidence because of his loyalty to the applicant, and the jury was invited to reject his evidence. The Crown notes that his evidence directly conflicted with the evidence of the complainant; and that the jury saw and heard each of these witnesses give evidence before them.
The Crown also notes that the applicant gave evidence in the trial. The Crown says that the jury was required to reject his account as not reasonably possible before convicting him of the offence; and says that it is plain from the jury's verdicts that the jury rejected the applicant's denials and accepted the complainant as credible and reliable. The Crown says that the jury's advantage in having seen and heard him give his evidence cannot be ignored.
Further, the Crown points to the jury's advantage in having seen both the applicant and Ben Nies give their evidence in the witness box; and having had the opportunity to make observations of each of them and their respective sizes and hair. The Crown says that there was no suggestion in the evidence that either Ben Nies or the applicant had changed his body size in any significant way since the date of the alleged offence; and that there was evidence from Ben Nies that his hair at the time of the offence was a similar length to at the date of trial. The Crown says that the jury's ability to make a visual assessment of each of them and in particular the comparative build of their arms was relevant to the evidence about the complainant's explanation that she realised the arms of the person in the bed were "skinnier" than Ben Nies; and that since there is no photograph of Ben Nies in the record of trial, this was a matter falling within a category of case where the jury did have a distinct advantage in seeing and hearing the complainant and other witnesses give their evidence (referring to Dansie at [14]-[17] (Gageler, Keane, Gordon, Steward and Gleeson JJ)). The Crown says that in that circumstance the scope of the advantage it enjoyed was relatively wide (referring to Wentworth v R [2023] NSWCCA 143 at [48] (Beech-Jones CJ at CL, as his Honour then was, McNaughton J and RA Hulme AJ agreeing)).
Finally, that the extent to which this Court is entitled to disbelieve a witness whose evidence a jury must have accepted, at least insofar as it established the elements of the offence/s of which the applicant has been convicted, is consequentially restrained (Z v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing); JL v R at [94] - [95] (Adamson JA, Ierace and Sweeney JJ agreeing); AS v R [2022] NSWCCA 291 at [107] (Adamson J, Hamill J agreeing); Bolton at [26] (Harrison J, Wilson and N Adams JJ agreeing).
The applicant does not demur from those principles.
The principles applicable when an appellant invokes an unreasonable verdict ground (the first limb of s 6(1) of the Criminal Appeal Act) are well-known (see MFA v The Queen at [34], [36] (Gleeson CJ, Hayne and Callinan JJ); [44]-[51] (McHugh, Gummow and Kirby JJ)). The relevant question is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, that question being one of fact on which the appellate court must make its own independent assessment of the evidence (as noted in the authorities referred to above; and see also the recent analysis in this Court in Hanna v R [2023] NSWCCA 182 at [18]-[26] (Leeming JA, Yehia and Weinstein JJ agreeing); which analysis was adopted in Russell v R [2023] NSWCCA 196 at [82]-[90] by Button J (with whom Wilson and Sweeney JJ agreed)).
In M v The Queen the High Court made clear (and it has reiterated this in Dansie) that an appellate 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 (M v The Queen at 492 (Mason CJ, Deane, Dawson and Toohey JJ); Dansie at [7] (Gageler, Keane, Gordon, Steward and Gleeson JJ)).
I have reviewed all of the evidence (bearing in mind that I do not have the benefit of having observed and heard the witnesses, an advantage enjoyed by the jury).
I am not convinced that, even accepting the evidence of Mrs Nies, this would require the jury to have doubt as to the applicant's guilt. Notwithstanding the issues with the reliability of Mrs Nies' evidence, as pointed out in the Crown's submissions, the essence of her testimony was that she was moving throughout the house between 12am and 6am; and was frequently in her bedroom or in the bathroom with the door closed. Further, even on her nocturnal wanderings, it seems that there would at all times have been at least one closed door separating her from the lounge room or from Ben Nies' bedroom. The first time Mrs Nies saw the applicant asleep on the lounge was around 1am (at a time after the episode in the bedroom). Mrs Nies also gave evidence that she heard the complainant talking in the family room; and that she heard the complainant and Ben Nies talking in his bedroom. That evidence, even if fully accepted by the jury, did not require the jury to have doubt as to the complainant's evidence, and was not inconsistent with a verdict of guilty.
More troubling is the evidence of Ben Nies, which was directly in conflict with that of the complainant in a number of respects. Their accounts differed not only as to what had occurred prior to him leaving the bedroom but also as to why he had left the bedroom (or what reason he had given for so doing) and they differed also regarding the circumstances of his return to the bedroom after he had been absent for the time in which the alleged offending occurred (including whether the door was locked when he returned, whether they had sexual intercourse, whether the complainant made a complaint to him that caused him to comfort her, and whether she was visibly upset) and whether the complainant then went out and attempted to confront the applicant on the lounge.
In considering whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty, this Court must proceed upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable (Pell at [38]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)); such an assessment did no doubt occur in this case given the critical nature of the complainant's evidence to the prosecution case. Given the direct conflicts between the evidence of the complainant and that of other witnesses (particularly Ben Nies), it is also particularly important to have regard to the jury's advantage in seeing and hearing witnesses give their evidence (Dansie at [9] (Gageler, Keane, Gordon, Steward and Gleeson JJ); M v The Queen at 493-495 (Mason CJ, Deane, Dawson and Toohey JJ); Pell at [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)).
In closing submissions, the solicitor advocate pointed to elements of Ben Nies' evidence that were not persuasive (which were re-emphasised by the Crown on appeal) and invited the jury to conclude that he was an untruthful witness, attempting to protect his friend. These conflicts were therefore explicitly presented to the jury, who were invited to form their own conclusions as to the reliability of each witness. The jury's role in assessing the credibility of each witness and forming their own views as to what evidence to accept as truthful was emphasised throughout both the solicitor advocate's closing submissions and the primary judge's summing up. The jury had a distinct advantage over this Court in that regard.
As to the requirement in a circumstantial case that the Crown exclude any inference consistent with innocence that was reasonably open on evidence in the trial, in the present case once the jury excluded Ben Nies as the person with whom the intercourse occurred, there simply was no plausible explanation for anyone other than the applicant to have been the male involved. It is fanciful to think that either of the other two males in the house (each of whom was with his own partner), without any evidence of his prior awareness of the opportunity presented by Ben Nies' absence from the bedroom would have suddenly chosen to enter Ben Nies' room and in the complete dark, on discovering his absence, immediately commence to have intercourse with the complainant (nor is it plausible that this could have occurred without the respective men's partners having heard them leaving their own bedroom to do so or at least this is the case for Ben Nies' father, whose wife was apparently awake for most of the night). Some random intruder is also not a plausible explanation (not least because of the absence of any break-in at the premises) and indeed this was not suggested by the applicant as a possible explanation.
Therefore, I am not left with a reasonable doubt as to the applicant's guilt. Any doubt that the jury might have had is not one that could not be resolved by reference to the jury's acceptance of the complainant's credibility assessed by reference to the evidence of the other witnesses (particularly, Ben Nies and his mother). The reliance placed by the applicant on inconsistencies in the complainant's evidence (as set out earlier in these reasons) does not persuade me that the verdicts of guilty were unreasonable. In my opinion, it was open on the evidence before the jury for it to be satisfied beyond a reasonable doubt that the applicant was guilty.
Ground 3 should be dismissed. The indicative sentences for the respective counts are as stated by Payne DCJ. The aggregate sentence imposed and the aggregate non-parole period as set by Payne DCJ should each be adjusted having regard to the fact that the applicant has been on bail pending this appeal.
The Crown case critically depended upon the jury accepting the truthfulness and accuracy of the complainant's evidence, both as to the fact of the sexual assault and as to the circumstances from which the jury was invited to infer that the applicant was the perpetrator. Some of those circumstances have already been mentioned but it is useful to collect them in one place:
1. The applicant had shown sexual interest in the complainant during the evening by flirting with her and by his touching behaviour towards her while she was laying on her back on a lounge late in the evening. The complainant said that the applicant tried to lie beside her and touched her leg but she "stopped it" and said she "wasn't interested".
2. Of the four males in the house at the relevant time, Ben Nies' father and brother were unlikely candidates because they were in their own bedrooms with their own female partners and there was no evidence that either of them had an interest in the complainant or knew that she was in Ben's bedroom. Their familial relationship with Ben Nies was a circumstance tending against the possibility that either of them would have sneaked into his bedroom in darkness to assault his girlfriend sexually while he was in the house.
3. With the field of possible perpetrators narrowed to two, the physical features sensed by the complainant were consistent with the perpetrator having been the applicant and inconsistent with that person having been Ben Nies.
4. The assailant removed the complainant's track pants and underpants and proceeded with the sexual assaults in a hurried manner. He did not desist when the complainant told him repeatedly to stop or when she tried to push him away. The assailant did not speak in response to her rejection. He only stopped when the complainant hit him in the face and he did not speak even then. That behaviour was inconsistent with the person having been her familiar intimate partner, Ben Nies, with whom she had been kissing and cuddling for 20 minutes only shortly before.
When viewed in the context of this circumstantial case, the trial judge's direction concerning the need for caution with respect to the complainant's evidence of identification in "the two respects she relied upon" was ample. It was a direction favourable to the applicant, concerning just one of the circumstances that were available to support the inference that the applicant was the perpetrator of the sexual acts. The direction propounded on the appeal in support of ground 1 was not required and in any event was not sought at trial. In my view its absence had no tendency to affect the verdicts. Like Ward P, I would refuse leave to appeal in respect of this ground.
The defence submissions to the jury commenced with the proposition that they should feel a reasonable doubt about whether the complainant was sexually assaulted in the bedroom without her consent, by anyone. Counsel referred to Ben Nies' evidence that he had been in bed with the complainant for the whole of the relevant period, apart from one or two minutes for a bathroom visit, and that no such assault, in the face of objection or resistance, had taken place. The suggestion was made that the complainant's allegations comprised a "false memory" in which she had "reconstructed her evidence" and was "filling in gaps because of her level of intoxication". It was open to the jury to accept the complainant as accurate and truthful, beyond reasonable doubt, and to reject Ben Nies' evidence. The conflict between the two witnesses was capable of being resolved by the jury, with their advantage of seeing and hearing both of them. Clearly they accepted beyond reasonable doubt the complainant's description of being sexually assaulted by someone after Ben Nies left the room.
The jury were not bound to regard the evidence of Narelle Nies, Ben's mother, as giving rise to reasonable doubt concerning the veracity of the complainant's evidence. If they found the complainant credible, as evidently they did, it was open to them to conclude that Ms Nies may not have been within the hearing of her son's bedroom when the complainant was loudly protesting the sexual assaults being committed against her or when she was crying after the event. On the evidence, the bedroom door was closed for most of the time during which sounds of distress were being made within.
If the jury accepted that non-consensual assaults of a sexual nature were committed against the complainant while Ben Nies was out of the room then the issue was as to the identity of the perpetrator. A substantial part of defence counsel's closing address was directed to reasons why the jury should feel a reasonable doubt that that person was the applicant. For reasons that have already been mentioned and that are more fully considered in the judgment of Ward P, it was open to the jury to dismiss, as not reasonably possible, that her assailant was either Ben's father or brother. That left only the applicant, whom the jury could find was implicated beyond reasonable doubt by inference from all the circumstances. The jury had the advantage of seeing and hearing the applicant when he gave evidence disputing that he had flirted with or made physical advances to the complainant during the evening and denying that he entered the bedroom or sexually assaulted the complainant. It was open to the jury, in finding the complainant's evidence truthful and accurate, to conclude that the applicant's denials in critical respects were not a reasonably possible version of events.
The jury may have considered that if the complainant's evidence was to be accepted then, by reason of Ben Nies' presence in the house and his proximity to the sexual assault, he must have known what occurred and must have acquiesced in it at the time. Further, he must have perjured himself at the trial to protect his friend. The jury were not bound to treat those concomitants of the complainant's narrative as so unlikely that the jury should have a reasonable doubt with respect to it. In this appeal, where verdicts are said to have been unreasonable, the judges who constitute the bench are required to consider whether they have a reasonable doubt concerning the applicant's guilt. I do not. In so far as it may follow from acceptance of the complainant's account that Ben Nies must have known at the time what the applicant was doing and that he must have raised no objection, I do not find that markedly improbable on the whole of the evidence; quite the contrary.
I would grant leave in respect of ground 3 but dismiss it. I would dismiss the appeal.