Marco v R

Z v R [2022] NSWCCA 8 Zhou v R [2021] NSWCCA 278 Category: Principal judgment Parties: Nicholas Marco (Applicant) Rex (Respondent) Representation: Counsel:

MW Smith (Applicant) E Nicholson (Respondent)

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

[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.

JUDGMENT

1. 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.
2. 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.
3. 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.
4. 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).
5. 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.

Evidence

1. 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.
2. 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).
3. 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).
4. 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).

Complainant's evidence

1. 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).
2. 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).
3. 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).
4. 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).

Complainant's sister

1. 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).
2. 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).

Complainant's stepmother

1. The complainant's stepmother also gave complaint evidence regarding the disclosure that the complainant had made to her about the events at the party.
2. The complainant reported to her stepmother that her level of intoxication was "quite tipsy" (8/11/22; T 146.21-27).

Ben Nies

1. 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.
2. 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).
3. Ben Nies' evidence was that the complainant did not seem "extremely intoxicated" to him (9/11/22; T 174. T 202.18-21).

Narelle Nies

1. Ben Nies mother, Mrs Narelle Nies, also gave evidence as to the events at the house on the evening of 2 May 2020.
2. 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).
3. 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).
4. 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).
5. 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).

Evidence from another friend

1. 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.
2. 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).
3. 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).

Plain Clothes Senior Constable Tiegan Yung

1. 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.

Documentary evidence

1. 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).
2. 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).

Applicant's evidence

1. 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).

Character evidence

1. 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).

Directions

1. 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).
2. 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".

Applicant's submissions

1. 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).
2. 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.
3. 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.

Crown's submissions

1. 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.
2. 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.
3. 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".
4. 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.

Determination

1. 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).
2. 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.
3. 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.
4. 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)).

Applicant's submissions

1. 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.)
2. 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.
3. 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.
4. 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.
5. 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).

Crown's submissions

1. 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).
2. 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.
3. 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).
4. 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)).

Determination

1. 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)).
2. 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)).
3. 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)).
4. 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)).

Conclusion

1. 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.
2. 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.
3. 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.
4. 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.

Ground 1 - warning concerning identification

1. 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.
2. 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.
3. 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,
4. 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.

Ground 3 - unreasonable verdict

1. 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.
2. 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".
3. 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.
4. 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.

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