McCosker v R

JUDGMENT

1. WARD P and PRICE J: In this matter, the applicant seeks leave to appeal his conviction on one count of sexual assault, contrary to s 61I of the Crimes Act 1900 (NSW) (Crimes Act), following a trial in the District Court at Armidale in May 2022 before Coleman SC DCJ and a jury.
2. The applicant was charged with 3 counts of sexual intercourse without consent in relation to the complainant (publication of whose name is restricted), those offences relating to separate acts in the early hours of 27 December 2020: digital-vaginal intercourse (count 1), penile-vaginal intercourse (count 2) and penile-anal intercourse (count 3). The Crown alleged at trial that each of the separate acts of intercourse occurred with the applicant knowing that the complainant was not consenting, or being reckless, as to consent (17/5/22; T 1.25-38). The applicant pleaded not guilty to all charges. The applicant's case was that he had engaged in consensual penile-vaginal intercourse with the complainant but he denied that the other forms of intercourse occurred (17/5/22; T 7.47-8.3).
3. The applicant was found not guilty in respect of counts 1 and 2 (the digital and vaginal intercourse counts) but guilty in respect of count 3 (the anal intercourse count).
4. On 11 August 2022, the applicant was sentenced by Coleman SC DCJ to 12 months imprisonment, with a non-parole period of 7 months, dating from 25 May 2022. There is no appeal against sentence. By the time of the hearing in this Court, the applicant was on parole.
5. The sole ground of appeal against conviction is that a miscarriage of justice resulted from the trial judge leaving a basis for conviction in circumstances where the applicant believed there was consent to sexual intercourse. In support of that application the applicant was given leave (over objection by the Crown on the ground of relevance) to read an affidavit affirmed 1 May 2023 by counsel who had appeared for the defence at the trial (Mark Gunning). The affidavit was read subject to relevance. Its relevance was said to be as going to the question raised ultimately by r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) as to whether or not there was a miscarriage of justice, in the consideration of which a relevant matter that can be taken into account is the absence of objection at the trial to the direction or lack of direction as to which complaint was made; and hence the issue as to whether a conscious decision had been made at trial not to object to the directions that are here impugned (see discussion at AT 2.7ff). In effect, Mr Gunning deposed that he did not appreciate at the trial that the trial judge had left the third alternative basis for finding the necessary guilty mind to the jury, namely that there were no reasonable grounds for a belief as to consent; and as to the objection that he would have made had he appreciated this.
6. For the reasons below, this ground of appeal is not made good. Leave to appeal should be granted but the appeal dismissed.

Background

1. As noted above, the alleged offences occurred on 27 December 2020.

Complainant's evidence

1. The applicant had returned to his sister (Montana)'s apartment after a night out with persons including the complainant and the applicant's other sister (Georgia). The complainant was very intoxicated after drinking alcohol and consuming cannabis (never having previously ingested cannabis in any form) (see 17/5/22; T 14.42ff). The applicant was also intoxicated. After Georgia went to bed, the applicant invited the complainant to sit with him on the lounge; and she did so. The complainant's evidence was that she sat with the applicant because she thought it would be better to be near someone if she was sick (17/5/22; T 17.24). There was evidence at the trial that the complainant had vomited immediately prior to leaving in a taxi for Montana's apartment at around 2.30am on 27 December 2020 (19/5/23; T 197.29-31).
2. The complainant testified at trial that she was sitting on the lounge with the applicant, squashed between the armrest and partially on his lap (17/5/22; T 17.30); that he put his arm around her (17/5/22; T 17.40), touched her breasts (17/5/22; T 18.3) and then put his hands down her pants underneath her underwear and started touching her vagina (17/5/22; T 18 13) and then put his fingers inside her vagina (17/05/22; T 18.24). The complainant said that she felt instant pain (T 18.27); and that she tried to move her hips "so he wouldn't be able to get access to my vagina" but it "didn't work" (17/5/22; T 18.30). The complainant's evidence was that she felt the applicant's fingers in her vagina "multiple times" (17/5/22; T 18.38).
3. The complainant's evidence was that the applicant stopped after she collapsed onto the side of the lounge and moved away from his lap; that the applicant attempted to grab her and pull her upright; and that the applicant said something to her about "having sex" (17/5/22; T 21.31). The complainant said that she "couldn't talk" but she "shook" her head "to try and say no and she kept going 'nuh-uh', 'mm-mm' like just trying to convey that I was saying no" (17/5/22; T 21.29-34). The complainant said that the applicant kept saying "No, come on, come on, let's have sex" (17/5/22; T 21.44-45). The complainant testified that she did not want to have sexual intercourse and told the applicant he had to "tarp up" (i.e., wear a condom), an expression she had heard from Georgia, thinking that the applicant would realise that he did not have a condom and would stop attempting to have sex with her (17/5/22; T 22.32). The complainant said that the applicant said, and repeated, that "I'll only be in for a minute".
4. The complainant said that she was scared because she believed that the applicant would have sex with her regardless of her response and that she reached for her bag on the floor, where she had placed two condoms given to her earlier by Georgia (17/5/22; T 22.40-45). The complainant accepted in cross-examination that she consciously and deliberately reached for her bag to grab a condom and removed her pants. However, she denied ever responding "yes" to the applicant's requests to have sexual intercourse (18/5/22; T 81; T 104.33-34). The complainant thought that she had got two condoms from her bag (17/5/22; T 22.48-50) and assumed that the applicant grabbed one.
5. The complainant took off her jean shorts and underwear and collapsed back onto the lounge where she said she fell asleep (17/5/22; T 23.11-17). In cross-examination the complainant agreed that the applicant removed his shorts and underwear at the same time (18/5/22; T 84.2).
6. The complainant woke lying on her side on the lounge. The complainant said that the applicant grabbed her by the legs and rolled her over on her back then pushed her legs up towards her shoulders and inserted his penis in her vagina (17/5/22; T 23.28-35). The complainant was unaware whether the applicant was wearing a condom. The complainant felt immediate pain when the applicant inserted his penis in her vagina. The complainant could not estimate how long the penile-vaginal sexual intercourse lasted, as she drifted in and out of consciousness while it happened. In cross-examination the complainant denied that the penile-vaginal intercourse lasted no longer than two or three minutes and denied that the applicant stopped and told her he was unable to finish (18/5/22; T 118.46-50).
7. The complainant's evidence was that the applicant then stopped the penile-vaginal intercourse with her, pulled her up next to him and said something about anal intercourse, to which she was able to respond clearly "No" (17/5/22; T 24.10-17). The complainant attempted to get up and move away from the lounge but was unable to stand and collapsed back on the lounge, after which she said the applicant continued to have penile-vaginal intercourse with her (17/5/22; T 24.16-24).
8. The applicant stopped and moved from the lounge to the floor and the complainant rolled over to her side and attempted to fall asleep. The applicant then returned to the lounge and laid down next to the complainant. The applicant grabbed the complainant's hand trying to have her touch his penis with her hand to masturbate him (17/5/22; T 24.45). The complainant pretended to be asleep.
9. The complainant said that the applicant became frustrated and said "fuck this", grabbed her legs and moved her on to her back, pushed her legs towards her shoulders and inserted his penis into her anus (17/5/22; T 25.2-10). The complainant's evidence was that she felt excruciating pain and that she "sat up instantly" (17/5/22; T 25.13) and that the applicant stopped (17/5/22; T 25.18). The complainant got up, put her pants back on and went to an armchair and went to sleep (17/5/22; T 25.24).
10. At around 8am on 27 December 2020 the complainant woke in the same armchair. The applicant was asleep on the lounge (17/5/22; T 25.30-33). The complainant immediately went upstairs and used the bathroom; and became concerned after noticing blood in the toilet bowl. The complainant felt pain in the side of her stomach, her vagina and her anus (17/5/22; T 25.49-50). In cross-examination, the complainant accepted that she had had a bowel motion while using the bathroom and agreed that it was possible that the bowel motion could have caused the blood in the toilet bowl. The complainant also observed a little bit of blood on her legs (18/5/22; T 87-88).
11. The complainant testified that she did not consent to any of the acts of sexual intercourse (17/5/22; T 42).

Complaint evidence

1. There was complaint evidence from three witnesses (Jordan Cox, Nicole Gately and the applicant's sister, Georgia), as well as evidence from a doctor (Dr Tracy Maxwell) who examined the complainant on 27 December 2020.

Ms Cox

1. At 8.37am on 27 December 2020, the complainant sent a Snapchat message to Ms Cox (Exhibit 2): I was technically raped last night and there's a lot of blood and I don't know what to do. I know I shouldn't put this on you but you are the only sober person I can think of to help me that I trust.
2. In her evidence, the complainant said that her reference to being "technically raped" was an attempt to distance herself from the incident with the applicant (17/5/22; T 27.40-44).
3. Ms Cox picked the complainant up from outside Montana's apartment; and the complainant recounted what had happened with the applicant (17/5/22; T 27.29-35). The complainant recalled telling Ms Cox that the applicant had inserted his fingers in her vagina and performed penile-vaginal and penile-anal intercourse on her (17/5/22; T 28.3-6).
4. Ms Cox gave evidence at the trial on 18 May 2022. Relevantly, Ms Cox recalled that the complainant told her that "I knew - I knew that I wanted something, but at this point I knew that it wasn't right, I shouldn't be doing this and it's wrong. I couldn't talk. I couldn't give him an answer. I couldn't say anything...If it's going to happen I wanted it to happen in a way that I knew I was safe...I reached to my bag and grabbed a condom to know that at least if it was going to happen, I would be protected" (18/5/22; T 136.38-45). Ms Cox also recalled that the complainant told her that the applicant "tried to put it in her bum" and she said "no" and put her hand back in a motion to say no (18/5/22; T 137.18-20). Ms Cox said that the complainant had told her she had observed blood down her legs following the incident with the applicant (18/5/22; T 137.41-42). In cross-examination, Ms Cox said that the complainant had not said whether she had had a bowel motion on the morning of 27 December 2020, but that she had used the bathroom to clean up the blood on her legs (18/5/22; T 141.1-8).

Ms Gately

1. As to the complaint made to Ms Gately, the evidence was that Ms Cox picked up her boyfriend and they drove to another house to collect the complainant's car; and Ms Cox's boyfriend then drove the complainant's car to Ms Gately's home because the complainant did not want to go home (17/5/22; T 28.31-24). Outside Ms Gately's home, the complainant sat in her car by herself and broke down crying. Ms Gately came outside and got into the complainant's car. The complainant told Ms Gately that the applicant had raped her. The complainant said that she did not go into much detail because Ms Gately was a close friend of the applicant (17/5/22; T 28 44). The complainant decided to attend hospital to have her injuries checked and Ms Gately drove the complainant to the hospital in Inverell (17/5/22; T 29.25-35), where the complainant was advised she would need to attend the hospital in Armidale.
2. Ms Gately gave evidence on 19 May 2022. Ms Gately's evidence was that she saw the complainant sitting in her car on the morning of 27 December 2020 and that she went and sat in the front passenger seat and asked the complainant about the events of the previous night. During this conversation, Ms Gately said the complainant disclosed to her that she had had sexual intercourse with the applicant; and that the complainant told her "it was technically rape" and then began crying (19/5/22; T 157-158).
3. Ms Gately recalled the complainant told her the applicant had asked whether she [the complainant] wanted to have sex and she had responded "yes", following which she retrieved a condom from her bag and gave it to the applicant. Ms Gately also recalled the complainant told her that the sexual intercourse with the applicant had only last five minutes (19/5/22; T 158).
4. Ms Gately also gave evidence that during the trip to the hospital in Armidale she asked the complainant about what had happened with the applicant a second time; and that the complainant had further disclosed to her on that occasion that she had had penile-anal intercourse with the applicant. Ms Gately said she asked the complainant whether "she had wanted that", to which she recalled the complainant responded "she didn't say no" (19/5/22; T 162).
5. The Crown was granted leave to cross-examine Ms Gately on the grounds that she had given unfavourable evidence (s 38(1)(a) of the Evidence Act 1995 (NSW)). In cross-examination, the Crown took Ms Gately to her police statement and the evidence she had given about what the complainant had told her in relation to having penile-anal intercourse with the applicant (19/5/22; T 177.16ff): Q. I'm just going to ask you a number of questions about your statement, Ms Gately. Do you recall making that statement on 13 June 2021? A. Yes. Q. You agree that that's at least six months after the events you were asked to recount? A. Yes. Q. It's certainly earlier in time than today. Is that correct? A. Correct. Q. You gave some evidence today about what [the complainant] told you about the sexual activity with Mr McCosker, and you gave evidence that she had mentioned that after they had sex, there had also been anal sex. A. Yes, she did mention that. Q. Between [the complainant] telling you that there had been reference to the anal sex, before that, it's the case, isn't it, that [the complainant] also said to you that she was feeling a bit "out of it''? A. She did make that reference, yes. Q. It's the case, isn't it, that when you asked her in relation to the anal sex, "Did you want that to happen?" [the complainant] said, "I did not say yes or no. It just happened"? A. Yep, Correct. Q. Earlier in your evidence today, you gave evidence that [the complainant] said, "I didn't say no," and that's not what [the complainant] said, is it? A. Correct. Yes. Well, she didn't say no, but in my statement, I record - she didn't say - she said to me that she didn't say yes or no. Q. "It just happened." A. Yes.
6. Ms Gately denied that her ongoing friendship with Georgia had affected her evidence (19/5/22; T 178).

Georgia McCosker

1. While the complainant was at the hospital in Inverell, Georgia attended the hospital. The complainant did not immediately disclose to Georgia the reason she had attended hospital (17/5/22; T 29.38-46).
2. At around 1pm, Ms Gately drove the complainant and Georgia to McDonald's for lunch before they planned to drive to Armidale. During the journey, the complainant told Georgia why she was attending hospital. The complainant said that "Last night, [the applicant] and I had sex ... Well technically, I was raped ... That's why I was at hospital, that's why I'm going to Armidale and I just want to make sure I'm okay". The complainant told Georgia that she was not going to report the incident to police (17/5/22; T 31.4-7)
3. Georgia gave evidence on 19 May 2022. Georgia recalled the complainant disclosed to her in Ms Gately's car on 27 December 2020 that "Well, [the applicant] and I had sex last night and I was, like, really out of it, so technically it's rape". Georgia said that she thought those were the complainant's exact words (19/5/22; T 201).

Medical examination

1. At the hospital in Armidale, the complainant was medically examined by Dr Maxwell (who gave evidence at the trial). An anal tear was located at the side of the anus closest to the vagina. No active bleeding was noted (18/5/22; T 128.13-14). Dr Maxwell's opinion was that the complainant's anal tear could have been caused by blunt force trauma associated with penile-anal penetration; but that the tear could also have been the result of the passage of faeces, particular if it involved a large hard bowel motion (18/5/22; T 129.8-18).

ERISP

1. The applicant did not testify but participated in an ERISP on 22 March 2021 (about three months after the incident) (the transcript of which was marked during the trial as MFI 19).
2. The applicant's account in his ERISP was that: the complainant "sat in my lap" (Q/A 30); he had "asked her if she wanted to", probably three or four times (Q/A 32); the complainant agreed by saying yes (Q/A 145-155, 333); the complainant "grabbed the condom out of her bag and she gave it to me" (Q/A 32; 153); the complainant "took her pants and undies off" (Q/A 161) and he did at the same time; they engaged in penile/vaginal sex for "like a minute or two" (Q/A 163) and "no more than 2 minutes" (Q/A 188) because he was exhausted and unable to perform; and he then fell asleep on the lounge and the complainant remained on the lounge (Q/A 33-35; 162-183).
3. The applicant denied touching the complainant's breasts (Q/A 322); could not recall using his fingers for digital penetration of the complainant's vagina (Q/A 329) and denied any discussion about penile-anal intercourse (Q/A 377-382). The applicant also denied that he used the complainant's hand to masturbate his penis (Q/A 390-391).
4. The applicant variously denied engaging in penile/anal intercourse (Q/A 399; A 526-531) and said that he did not recall anal sex (Q/A 381). The applicant said that after the penile/vaginal intercourse (Q/A 189) "I can't really remember after that" (Q/A 190). The applicant described himself as "just out of it" (Q/A 34). The applicant stated that "all I can recall is just falling asleep after we had [vaginal] intercourse" (Q/A 543).
5. The applicant conceded the possibility that anal intercourse had occurred even though he did not remember it (Q/A 526-28), saying that "You can probably put by accident... when you're like I was, intoxicated ... I could've placed it [in her anus] I can't remember". The applicant did not recall "doing anal" (Q/A 542; 557) and said that, with respect to anal intercourse, he was "not a fan of that" (Q/A 379) and "I don't like it … I don't like anything about it" (Q/A 556-557). The applicant said that he had never engaged in anal intercourse (Q/A 555; 560) and that he was against the idea of non-consensual intercourse (Q/A 481).
6. Pausing here, the Crown points out that the account given by the applicant in his ERISP was of consensual sexual activity resulting in penile-vaginal intercourse, which ended as a result of his intoxication; and that the applicant denied any digital-vaginal or penile-anal penetration, although he accepted the possibility of brief but accidental penetration of the complainant's anus during penile-vaginal intercourse. The Crown says that the applicant's account did not include a belief as to consent in respect of any act of penile-anal intercourse (the applicant's counsel on appeal submitted that the applicant was implicitly asking the complainant if she wanted to engage in sexual activity- see AT 8.25-30; 11.42-46). The Crown says that the only belief the applicant exhibited as to penile-anal penetration was to conjecture that such penetration might have occurred by accident as he participated in consensual penile-vaginal intercourse with the applicant.

Trial

1. The Crown opened the trial on the basis that the Crown had to prove either actual knowledge or recklessness (17/5/22; T 6.50); similarly, defence counsel opened on the basis that the Crown had to prove either actual knowledge or recklessness (17/5/22; T 7.45).
2. During the trial, the jury asked for a definition of "consent" (18/5/22; T 107). The trial judge provided the parties with a draft elements document (MFI 7) which directed the jury that the prosecution must prove that "the accused knew that [the complainant] was not consenting" or "the accused was reckless as to whether [the complainant] was consenting". Prior to final addresses the trial judge indicated to the parties that MFI 7 was intended to be provided to the jury during the summing up (20/5/22; T 241.5).
3. In closing address, the Crown submitted that the jury would find that the applicant was reckless about consent in respect of counts 1 and 2 (23/5/22; T 255.38-257.50) and that he knew there was no consent in respect of count 3 (T 258.8). In relation to all counts, it was submitted that the jury would be "satisfied beyond reasonable doubt that the accused either knew or was reckless as to whether or not she was consenting" (23/5/22; T 269.9).
4. In closing address, defence counsel submitted that "the Crown cannot establish beyond reasonable doubt that Ethan knew that [the complainant] was not consenting, if that is the case, or that he was reckless as to whether [the complainant] was consenting or not to sexual intercourse" (23/5/22; T 281.42).

Summing up

1. In the summing up, the trial judge gave the jury MFI 26 (SU 22.9), which directed the jury that the prosecution "must prove" that "the accused knew that [the complainant] was not consenting" or "the accused was reckless as to whether [the complainant] was consenting". The trial judge directed the jury in oral directions (at SU 23.6) in accordance with MFI 26 and later repeated this (at SU 24.8). The trial judge then gave directions regarding knowledge and recklessness (SU 24.8-25.5). Further directions about actual knowledge were later given (at SU 27.6-28.5).
2. Relevantly, the trial judge gave the following directions (at SU 28-29): On the other hand, you may decide on the basis of the evidence led in the trial and on the basis of the version given by the accused in his interview with the police that he might have believed that the complainant was consenting to the act of penile-vaginal intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and if so whether the Crown has proved beyond reasonable doubt that there were no reasonable grounds for him to believe that the complainant was consenting. Therefore, the Crown must prove beyond reasonable doubt one of two facts before you can find the accused guilty. Either (1) that the accused did not honestly believe that the complainant was consenting or (2) even if he did have an honest belief in consent, there were no reasonable grounds for him believing that she had consented to the sexual intercourse. It is for the Crown to prove that the accused had a guilty mind. It must eliminate any reasonable possibility that the accused did honestly believe on reasonable grounds that the complainant was consenting. Unless you find beyond reasonable doubt that the Crown has eliminated any such reasonable possibility then you would have to find that this element of the offences has not been made out and you would return a verdict of not guilty to that respective count. [The applicant emphasises the statements that are italicised above] In determining whether the Crown has proved the accused knew that the complainant was not consenting to intercourse, you must take into account what steps were actually taken by him to ascertain whether or not the complainant was consenting. I've already indicated to you that the Crown can prove the accused had a guilty mind in one of two ways. Either that the accused actually knew the complainant was not consenting or even if the accused believed at the time the complainant consented that he had no reasonable grounds for believing that she was consenting to the sexual intercourse. The Crown can also prove the accused's guilty state of mind if it proves that he was reckless as to whether the complainant consented to the sexual intercourse. If the accused was reckless, it is the law that the accused will be taken to know that the complainant did not consent to sexual intercourse.
3. The Crown accepts that the above direction that was given orally included proof of knowledge through s 61HE(3)(c) of the Crimes Act, as it then was, and that this direction did not appear in the written directions (MFI 26) (the written directions reflecting the way the Crown had opened its case as to knowledge and recklessness). However, the Crown argues (see below) that the impugned direction related only to the act of penile-vaginal intercourse (not to the act of penile-anal intercourse).
4. It is also relevant here to note that defence counsel (at 23/5/22; T 281.32-35) had submitted at trial that: there is significant and persuasive evidence that [the complainant] did consent to penile vaginal intercourse and that [the applicant] had reasonable grounds for honestly and genuinely believing that [the complainant] was consenting.
5. After the impugned direction, the trial judge then gave further directions about actual knowledge and recklessness (SU 29.3-30.2).
6. The applicant here complains that the trial judge did not seek to explain the apparent conflict between MFI 26 (which directed the jury that the prosecution "must prove" either actual knowledge or recklessness as to consent) and the direction that a "guilty mind" could exist even where the accused "believed that the complainant was consenting". Moreover, the applicant argues that the impugned direction was one that applied to all counts.
7. Neither the Crown nor defence counsel (see SU 31) raised any concerns about the trial judge's directions to the jury regarding the third basis on which "knowledge" may be proved pursuant to the (now repealed) s 61HE(3)(c) of the Crimes Act (namely, that there were "no reasonable grounds for believing that the alleged victim consents to the sexual activity"); the first two bases for establishing the necessary "knowledge" of absence of "consent" being actual knowledge (s 61HE(3)(a)) and recklessness (s 61HE(3)(b)).

A miscarriage of justice resulted from the trial judge leaving a basis for conviction in circumstances where the appellant believed there was consent to sexual intercourse.

1. Section 61HE(3) of the Crimes Act, as it was at the time of the trial, provided: (3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if - (a) the person knows that the alleged victim does not consent to the sexual activity, or (b) the person is reckless as to whether the alleged victim consents to the sexual activity, or (c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.
2. The applicant says that at no stage during the trial, until the summing up to the jury, was any reference made to the third basis for establishing "knowledge". That submission must, however, be understood in the context that there was a defence summary document that was provided to the trial judge at some point on 23 May 2022 (MFI 23) in which there was reference (in the context of the count relating to penile-vaginal intercourse) to the applicant having reasonable grounds honestly to believe that there was consent (which accords with the oral submission extracted above that was made at T 281). This would appear to be the genesis for the impugned direction (and would suggest that the trial judge was there focusing on the count relating to penile-vaginal intercourse).

Applicant's submissions

1. The applicant accepts that to rely on a ground of appeal that the impugned directions resulted in a miscarriage of justice, leave is required pursuant to r 4.15 of the Criminal Appeal Rules. It is submitted that leave should be granted on the basis that the directions resulted in a miscarriage of justice.
2. The applicant relies on the proposition that a trial judge should not, in general, leave a basis for conviction that is not relied upon by the prosecution. It is submitted that the directions denied the parties the opportunity either to disavow, or to meet the argument (R v Solomon [1980] 1 NSWLR 321 (Solomon) at 335-336 per Moffitt P; R v Meher [2004] NSWCCA 355 (Meher) at [88] per Wood CJ at CL; Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 (Robinson) at [142], [145] per Johnson J; Sahartor v R [2018] NSWCCA 236 (Sahartor) at [40] per Hamill J). The applicant notes that placing an accused person in the position that the person is unable to meet an argument concerning the basis of criminal liability, because it is raised for the first time in the summing up, can amount to "a most significant area of prejudice" (citing Robinson at [146] there citing R v RTB [2002] NSWCCA 104 at [55]-[61] per Spigelman CJ, Wood CJ at CL and Kirby J, as his Honour then was; Meher at [113]-[116], [130]; Carr v The Queen [2000] TASSC 183; 117 A Crim R 272 at [49]; Sahartor at [40]).
3. Further, the applicant submits that, even assuming that it was appropriate to leave the matter on this alternative basis, it was necessary to provide further instructions to the jury and that the directions given by the trial judge were inadequate. It is submitted that the jury should have been told that neither party had advanced that basis of liability and that the jury "may determine [that it was] inappropriate to further consider" it (Sahartor per Hamill J at [42]). It is submitted that the circumstances required a strong warning, explaining that it would be unfair to proceed on that basis because the accused had no opportunity to meet that case (Saharlor per Hamill J at [42]).
4. As to the directions whether "there were no reasonable grounds for him to believe that the complainant was consenting", the applicant submits that (while strictly correct) they were inadequate. It is submitted that the jury would have required assistance on what could be taken into account in determining whether the applicant had no such reasonable grounds. It is submitted that the trial judge should have explained that the focus must be on what the applicant believed and, if he did believe that there was consent to (anal) intercourse, the question was whether the grounds on which he relied for that belief were reasonable. The applicant argues that it would be not appropriate for the jury to consider the question of reasonable grounds divorced from their conclusion as to what the accused subjectively believed.
5. The applicant accepts that the complainant testified that the applicant "said something about anal intercourse, to which [the complainant] was able to say a clear no" (17/5/22; T 24.15) and that there was also evidence that she told Dr Maxwell on 27 December 2020 about the applicant "saying something about anal" that "I said no, but he did it anyway" (18/5/22; T 126.44).
6. However, the applicant says that there was other evidence which raised the possibility that the complainant did not say "no" or that, even if she did, the applicant nonetheless believed that there was consent to anal intercourse, that being the following evidence.
7. First, that the complainant accepted that she was significantly intoxicated as a result of consumption of a "hash brownie" and alcohol (17/5/22; T 23, 33.46). Second, that the complainant testified that she had told Georgia that she had "tried to say no" (17/5/22; T 36.44). Third, that on 27 December 2020, the complainant sent a text message to a friend (Ms Cox) that she "was technically raped" (Ex 2) and subsequently told another friend (Ms Gately) that "It was technically rape" (18/5/22; T 157.9). The applicant argues that both messages raised a question as to whether the applicant knew that there was an absence of consent.
8. Fourth, that the Crown adduced the following evidence from Ms Gately regarding what the complainant told her on 27 December 2020: Q. It's the case, isn't it, that when you asked her in relation to the anal sex, "Did you want that to happen?" The complainant said "I did not say yes or no. It just happened"? A. Yep. Correct. and that Ms Cox testified that the complainant said to her (18/5/22; T 137.20): Ethan tried to put it her bum. She said; "I said "No" and I put my hand back in a motion to say no, and he stopped".
9. The applicant argues that this last evidence raised the possibility that the complainant said "no" when the penile/anal intercourse occurred and the applicant immediately stopped.
10. Finally, that on the complainant's own testimony, after she said the clear "no", the applicant engaged in penile/vaginal sex (17/5/22; T 24.24), then grabbed her hand trying to touch his penis with her hand (17/5/22; T 24.45) before engaging in penile/anal intercourse. It is submitted that if the applicant believed the penile/vaginal intercourse and the other conduct was done with the consent of the complainant, he may have thought she had changed her mind about anal intercourse.
11. Accordingly, the applicant submits that this was not a case where the jury would inevitably have been satisfied beyond reasonable doubt that the complainant said "no" to anal intercourse before it occurred and that, as a result, the applicant must have known that she would not consent to anal intercourse.
12. The applicant points to the following in his ERISP as indicating that he believed he had the complainant's consent to sexual intercourse: that he stated that "I'd asked her if she wanted to ... probably three or four times" (Q/A 32), she "agreed ... grabbed the condom out of her bag and she gave it to me" (Q/A 32, 153) and "she took her pants and undies off' (Q/A 161). The applicant denied (Q/A 379) that the complainant said "no" to anal sex; and denied (Q/A 399) saying "Fuck this" or rolling the complainant onto her back. It is noted that the applicant conceded the possibility that anal intercourse had occurred even though he did not remember it (Q/A 530), in circumstances where he said that, after the penile/vaginal intercourse "I can't really remember after that" (Q/A 190). The applicant stated "all I can recall is just falling asleep after we had [vaginal] intercourse" (Q/A 543).
13. It is noted that the applicant said (Q/A 112-116, 277-279) that he was significantly intoxicated as a result of consumption of a "hash brownie" and alcohol; and described himself as "just out of if' (Q/A 34); and that the complainant in her evidence (18/5/22; T 74.10) described the applicant as intoxicated. The applicant says that this evidence raised the possibility that the applicant did have anal intercourse, believing that he had the complainant's consent, even though he did not remember the anal intercourse when he was interviewed three months after the incident on 21 March 2021.
14. Defence counsel in final address referred to the applicant's ERISP statement that "if his penis did go into [the complainant]'s anus it may have occurred by accident" (23/5/22; T 302.3) and then referred to the applicant's denial (see Q/A 399) of saying "Fuck this" or rolling her onto her back (23/5/22; T 302.7). Defence counsel also submitted that the complainant's account was "wildly inconsistent... with any notion of 'technical rape' which seems to have been a word that [the complainant] herself used the morning after the alleged assault" (23/5/22; T 302.12).
15. The applicant submits that there were at least two scenarios raised by the account given by the applicant in the ERISP. First, his concession that it was possible that anal intercourse had occurred by "accident" ("You can probably put by accident") raised the scenario that he believed he was engaging in penile/vaginal intercourse and that he had consent for that. It is submitted that if he believed that it was penile/vaginal intercourse and that he had consent for that, then he believed that he had consent for the sexual intercourse he mistakenly believed he was engaging in.
16. Second, it is said that his implicit claim that, while he did not remember engaging in penile/anal intercourse (Q/A 381, 533, 542, 557) and it was possible that it occurred, he believed that he had the consent of the complainant to "sexual intercourse" (which it is submitted would include penile/anal intercourse).
17. In those circumstances, it is said that the question for the jury if the jury considered the first scenario a reasonable possibility would be whether the applicant had any reasonable grounds for believing that he was engaging in penile/vaginal intercourse; and that the question for the jury if the jury considered the second scenario a reasonable possibility was whether the applicant had any reasonable grounds for believing that he had the consent of the complainant to "sexual intercourse", including anal intercourse.
18. For these reasons, the applicant submits that a miscarriage of justice resulted from the trial judge leaving the basis for conviction in circumstances where the applicant believed there was consent to sexual intercourse, either because that basis should not have been left to the jury at all or because the directions that were given to the jury were inadequate.

Crown submissions

1. As noted above, the Crown contends that the impugned direction was relevant to count 2 only, as it referred to the accused's belief as to consent with respect to the act of penile-vaginal sexual intercourse (on which count the applicant was acquitted), and had nothing to say about a pathway to guilt on count 3. Hence it is submitted that its inclusion in the summing up caused no unfairness to the applicant so far as count 3 was concerned and made no appreciable difference to the applicant's prospects of acquittal on that count.
2. Further, the Crown submits that even if the impugned direction could be taken to apply to count 3 there was no evidence from the applicant of a belief as to the complainant's consent in respect of penile-anal intercourse and no basis to conclude that the applicant held a belief as to consent with respect to any act of penile-anal intercourse. Thus, it is again submitted that the impugned direction could have no effect on any consideration of the applicant's guilt on count 3.
3. The Crown also submits that insofar as the applicant seeks to advance a case whereby the complainant did not express her lack of consent as clearly as she described in her evidence (referring to the applicant's written submissions at [12]), this would have been able to be addressed by reliance by the Crown on s 61HE(3)(c) of the Crimes Act.
4. As to the reliance placed by the applicant on the complainant's evidence that she said to Georgia, about two weeks after the incident, "I tried to say no, but he didn't seem to care" (17/5/22; T 36.44-45), the Crown argues that it appears the complainant was describing her lack of success in dissuading the applicant from having sexual intercourse with her. As to the applicant's reliance on the complainant's description that she was "technically raped", the Crown says that its ambivalence does not precisely articulate the point now sought to be made by the applicant on appeal.
5. As to the applicant's reliance on the evidence of Ms Cox, that the applicant tried to penetrate her anally, and only then did she say no at which point he stopped, the Crown says that this should be considered in the context of the evidence of Ms Cox as to the complainant's complaint regarding the penile-anal intercourse (at 18/5/22; T 137.15-21): Q. So if you can just do the best you can. Did she tell you physically what actually happened between - A. She didn't physically say what happened at the start, but she did somewhere in the middle mention that Ethan tried to put it in her bum. She said, "I said, 'No,' and I put my hand back in a motion to say no, and he stopped." Then she pretended to pass out, and he - she said that he did it anyway. Q. Apart from that, did she refer to any other acts of intercourse? A. I cannot remember, I'm sorry. Q. When she was telling you these things, what did you observe about [the complainant]? A. She was constantly fidgeting with something that was in front of her, whether it be her clothes, her bag, her hair. She was choking on her words and feel like - it felt like she was struggling to get them out.
6. The Crown says that the evidence of Ms Cox of the complaint was that the complainant said "No" followed by the anal penetration was consistent with the complainant's evidence and that any lack of precise consistency between the evidence of the complainant and the evidence of Ms Cox as to the complaint made by the complainant can be explained by the usual differences that occur when an account is relayed by one person to another.
7. The Crown acknowledges that Ms Gately gave evidence (at 19/5/22; T 162.12-32) that: Q. Can you remember what she said to you? A. Yes. So, I asked what had happened. She said that she had had sex with Ethan and that it was technically rape. I asked her how - what - how the night progressed, and she said that when they were alone in the lounge room, that Ethan asked her if she wanted to have sex. And she responded: "Yes." And she went to her bag and got a condom out and gave it to him. Then they had sexual intercourse, and she stated again, that it only lasted for five minutes. And then, she added to the end of her sentence that they had done anal. Q. And what, if anything - what was [the complainant]'s demeanour? How did she seem to you, when she was telling you these things in the car on the way to Armidale? A. She was very quiet. She kept fidgeting, looking down at her hands. She didn't really have any emotion in her tone when she was telling the story. She wasn't crying. She seemed just still very, I guess, confused about the whole night. She kept stuttering and stopping and - Q. And what, if anything, was said after she said that they'd had anal intercourse? A. I asked her if she had wanted that, and she responded that she didn't say, no.
8. However, the Crown notes that Ms Gately was declared an unfavourable witness (19/5/22; T 165-175) and refers to the evidence given by Ms Gately when her statement to police was put to her (19/5/22; T 177.14-48): Q. I'm just going to ask you a number of questions about your statement, Ms Gately. Do you recall making that statement on 13 June 2021? A. Yes. Q. You agree that that's at least six months after the events you were asked to recount? A. Yes. Q. It's certainly earlier in time than today. Is that correct? A. Correct. Q. You gave some evidence today about what [the complainant] told you about the sexual activity with Mr McCosker, and you gave evidence that she had mentioned that after they had sex, there had also been anal sex. A. Yes, she did mention that. Q. Between [the complainant] telling you that there had been reference to the anal sex, before that, it's the case, isn't it, that [the complainant] also said to you that she was feeling a bit "out of it"? A. She did make that reference, yes. Q. It's the case, isn't it, that when you asked her in relation to the anal sex, "Did you want that to happen?" [the complainant] said, "I did not say yes or no. It just happened"? A. Yep. Correct. Q. Earlier in your evidence today, you gave evidence that [the complainant] said, "I didn't say no," and that's not what [the complainant] said, is it? A. Correct. Yes. Well, she didn't say no, but in my statement, I record - she didn't say - she said to me that she didn't say yes or no. Q. "It just happened." A. Yes.
9. The Crown submits that Ms Gately's evidence at trial must be weighed against what was in Ms Gately's statement (made six months after the incident) and considering any allegiance she had to the applicant and his sister (19/5/22; T 178.22-46). The Crown says that it was therefore open for the Crown to submit simply that the complainant had said no to the anal intercourse; and the Crown emphasises that this was the approach that was taken (23/5/22; T 256.44-47). The Crown says that this allowed no alternative pathway to guilt upon which s 61HE(3)(c) could be applied.
10. As to the applicant's contention (in written submissions at 15 as to his concession that it was possible that anal intercourse had occurred by "accident"), the Crown says that this is based on a non-voluntary penetration of the complainant's anus and that this does not arise as a possibility. It is noted that the Crown made plain at trial the contention that the penile-anal intercourse was a voluntary and deliberate act; and it is said that this was how count 3 was approached throughout the trial (referring to SU 35). The Crown argues that the submission by defence counsel in his closing address (23/5/22; T 302.3) that any anal penetration was accidental can therefore be understood as a denial that there had been a penile-anal penetration as alleged by the Crown (and therefore a denial of the Crown case in respect of count 3).
11. As to the applicant's contention that it is possible that penile-anal intercourse occurred, but he did not remember it (see his submissions at 15), the Crown says that, seen as a whole, the applicant's account in the ERISP was a denial of anal sex (referring to MFI 19 at Q/A 381, 382, 399, 517 and 554-560); and therefore the Crown argues that the applicant's contention as to this possibility has not been made out.
12. The Crown also says that the applicant put in precise terms the technical disadvantage he suffered by the impugned direction. The Crown argues that it is entirely conceivable that nothing else would have been done at trial because the impugned direction was focused on count 2 and because the applicant denied any anal-penile penetration. It is said that to make submissions to counter the possibility of an unreasonable belief would be implicitly to accept the possibility of voluntary and deliberate penile-anal intercourse, which the Crown submits had its own forensic risks. Thus, it is submitted that no matter which way the jury was allowed to reason as to whether the applicant had knowledge of the complainant's lack of consent, the applicant would have always responded to count 3 that penile-anal intercourse as particularised by the Crown did not occur.
13. The Crown argues that the submissions made by the Crown suffice to show that not only did the applicant not suffer a tactical disadvantage but that he did not lose a real chance of acquittal. It is said that the lack of objection by trial counsel to the impugned direction is a strong indicator that nothing prejudicial to a fair trial occurred (CV v R [2022] NSWCCA 264 at [49] per Beech-Jones CJ at CL).

Reply submissions

1. As to the Crown's submission that the applicant's account did not include a belief as to consent in respect of any act of penile-anal intercourse, the applicant says that he was never asked a question about that (presumably because he repeatedly said he had no memory of penile-anal intercourse occurring) (Q/A 381, 533, 542, 557). However, it is submitted that it was plain from the overall content of what the applicant told the police that he believed there was consent to "sex".
2. Emphasis is placed on the express denial by the applicant that the complainant said "no" to anal sex (Q/A 379). It is submitted that the applicant's account to police was that the complainant showed by her actions that she was consenting to sex. It is said that the applicant believed that anal sex did not occur because he was "not a fan" of anal sex (Q/A 379) but, after being told that the complainant had reported an injury to her anus, he effectively conceded that it was possible it did occur notwithstanding not having any memory of it (Q/A 531-534).
3. The applicant says that the respondent's submission (at [27]) that "[s]een as a whole, the applicant's account in the ERISP was a denial of anal sex" should not be accepted. The applicant submits that it is plain that he was accepting that it was possible that anal intercourse had occurred (although he thought it unlikely) but he had no memory of it because he was very intoxicated (see Q/A 112-120). It is said that it is also plain that he was speculating that one possibility was that he had not intended to have anal intercourse but that it had accidentally occurred. However, it is said that, quite apart from this, the applicant's core account was that he believed that there was agreement to "sex" based on the complainant's responses (Q/A 32, 220).
4. The applicant contends that the directions at SU-28-9 were not relevant to count 2 only but were in respect of all the counts. It is said that the trial judge made this clear at SU 23.3 and repeated this later. Reference is made to the use of the plural at SU 29.2 (the "offences") and returning a verdict "to that respective count", which the applicant submits makes it clear that the trial judge was not limiting his directions to count 2. While the trial judge referred at SU 28.7 to the "version" given by the applicant in his interview that he "believed that the complainant was consenting to the act of penile-vaginal sexual intercourse with him", the applicant says that the trial judge was not limiting the directions regarding the "third element" of a "guilty state of mind" to count 2 (but was simply pointing out that the applicant had explicitly asserted belief in consent in relation to the penile/vaginal intercourse).
5. The applicant cavils with the proposition that there was "no basis to conclude the applicant held a belief as to consent with respect to any act of penile-anal intercourse". It is submitted that it is possible that the jury, or some members of the jury, did regard it as reasonably possible that, when the applicant engaged in penile-anal intercourse, he believed he had the consent of the complainant. It is said that in order for the jury to regard that as a reasonable possibility it was not necessary that the applicant said to the police that "if penile-anal intercourse occurred, there was consent to it"; that, if it was reasonably possible that he had no memory of penile-anal intercourse, the question was whether it was reasonably possible that, when it occurred, he believed he had consent.
6. It is noted that in his police interview, the applicant raised the possibility that he had mistakenly believed he was engaging in penile-vaginal sex and he believed he had consent for the sexual intercourse he mistakenly believed he was engaging in. It is said that that was one basis for the jury regarding it as reasonably possible that, when the applicant engaged in penile- anal intercourse, he believed he had the consent of the complainant.
7. Further, it is noted that the applicant entered a plea of not guilty in circumstances where he claimed he had no memory of the anal sex occurring. The applicant submits that this was not an admission that, if it occurred, there was no consent or he did not believe there was consent.
8. The applicant argues that, given that the jury was satisfied it did occur and the complainant had not consented, the only remaining issue was whether the applicant had the necessary "guilty mind". It is said that that issue arose even if the applicant did not tell the police "if penile-anal intercourse occurred, there was consent to it" because it was an element of the offence which had to be proved beyond reasonable doubt. The applicant says that it arose because trial counsel submitted in final address (23/5/22; T 281.42) that it was not proved beyond reasonable doubt that the applicant knew that the complainant was not consenting or was reckless as to whether she was consenting or not to sexual intercourse.
9. The applicant says that there was evidence in the prosecution case which supported an inference that the applicant believed there was consent referring to the complainant's account that the applicant "stopped" when the penile-anal intercourse became painful (17/5/22; T 25.18), supported by the evidence of Ms Cox that the complainant told her that when the applicant placed his penis in her anus she said "No" and "put my hand back in a motion to say no, and he stopped" (18/5/22; T 137.20), which it is said raised the possibility that the applicant believed he had consent until that point. The applicant says that his denial (A 379) that the complainant had made it clear she would not agree to anal sex was supported by evidence adduced by the Crown (referring to the affirmative answer from Ms Gately to the following question (19/5/22; T 177.40): It's the case, isn't it, that when you asked [the complainant] in relation to the anal sex, "Did you want that to happen?" [the complainant] said "I did not say yes or no. It just happened"?
10. As to the Crown's suggestion that the applicant seeks to advance a case whereby the complainant did not express her lack of consent as clearly as she described in her evidence, the applicant says that his submission is that it is possible that the jury had a reasonable doubt that the complainant expressed her lack of consent as clearly as she described in her evidence. The applicant accepts that the Crown relied upon the complainant's account in her evidence but says that the jury may have had a doubt about that account. It is noted that the jury was not directed that, to convict the applicant of count 3, the jury must be satisfied beyond reasonable doubt that the complainant did express her lack of consent as clearly as she described in her evidence.
11. The applicant says that it is not inevitable that all members of the jury were satisfied beyond reasonable doubt that the complainant expressed her lack of consent as clearly as she described in her evidence; and not inevitable that all members of the jury were satisfied beyond reasonable doubt that the applicant must have known that the complainant would not consent to anal sex. In those circumstances, it is submitted that some or all members of the jury may have found the applicant guilty of count 3 on the basis of the directions they were given by the trial judge at SU 28-9.
12. The applicant says that the Crown's argument that defence counsel's submission at T 302.3 that any anal penetration was accidental "can be understood as a denial that there had been penile-anal penetration as alleged by the Crown" should not be accepted. The applicant says that it was a submission by defence trial counsel that the jury should not find the applicant guilty even if the jury were satisfied that penile-anal penetration did occur and that the complainant had not consented. It is said that it had to be understood in the context of the earlier submission (23/5/22; T 281.42) made in respect of count 1 and count 3 that "the Crown cannot establish beyond reasonable doubt that [the applicant] knew that [the complainant] was not consenting, if that is the case, or that he was reckless as to whether [the complainant] was consenting or not to sexual intercourse". The applicant says that the defence case was not simply and exclusively "that penile-anal intercourse as particularised by the Crown did not occur".
13. As to the Crown's reliance on r 4.15 at [29], the applicant says that if there was "a miscarriage of justice", leave should be given (citing ARS v R [2011] NSWCCA 266 at [147] per Bathurst CJ, James and Johnson JJ; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24] per Bathurst CJ; Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 at [32] per Bellew J; Zhou v R [2021] NSWCCA 278 (Zhou) at [22] per Beech-Jones CJ at CL; Beattie v R [2021] NSWCCA 291 at [62] per McCallum JA, Walton and Fullerton JJ; Hanna v R [2022] NSWCCA 7 at [21]) per Johnson J, and that, in order to establish a miscarriage of justice, it must be shown that there is a "real chance" that what occurred affected the jury's verdict (citing Hofer v The Queen [2021] HCA 36, 95 ALJR 937 at [47] per Kiefel CJ, Keane and Gleeson JJ; at [118] per Gageler J; see also Zhou at [22] per Beech-Jones CJ at CL; Saunders v R [2022] NSWCCA 273 at [93] per Simpson AJA; Xu v R [2023] NSWCCA 93 at [101] per N Adams J).
14. In the present case, the applicant says that objection to the directions given by the trial judge might have resulted in the directions being withdrawn or, at least, further instructions being given (see applicant's submissions at [10]-[11]). It is submitted that there is a "real chance" that, in that event, the jury's verdict in respect of count 3 would have been different.
15. It is accepted that a "deliberate decision" (rather than oversight) by trial counsel not to object based on an assessment that a judicial direction did not prejudice a fair trial would "tend against" a finding that such a risk was present but the applicant points out that it is "not determinative" (Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894, per Kiefel CJ, Keane and Steward JJ at [54]-[57], citing De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35] per Kiefel CJ, Bell, Gageler and Gordon JJ). The applicant nevertheless relies on the affidavit provided by trial counsel and argues that in light of that evidence reliance cannot be placed on the lack of objection by trial counsel to infer that "nothing prejudicial to a fair trial occurred".

Determination

1. As noted above, the primary position of the Crown is that the directions to the jury, properly understood, did not raise the third basis on which knowledge of lack of consent could be proved in the context of the anal intercourse count. It is clear, as noted earlier, that the genesis of the impugned oral direction was the document prepared by defence counsel which raised the issue of evidence supporting reasonable grounds for an honest belief in the complainant's consent specifically in relation to the penile-vaginal intercourse count.
2. It is of significance in that regard that the written directions (on which it is reasonable to believe the jury would have placed more reliance) made no such reference. That said, the oral directions did make reference to this issue in the middle of general directions relating to all counts and the specific reference to penile-vaginal intercourse is counterbalanced to an extent by the use of the plural "offences" and the reference to a finding of guilt as to the "respective count" (which might be interpreted consistently with either interpretation of the oral directions). It is also significant that the trial judge said that the Crown could prove that the applicant had a guilty mind, even if the applicant believed at the time that the complainant consented, if he had no reasonable grounds for believing that she was consenting to "the sexual intercourse" (and thus failed to distinguish between the types of sexual intercourse to which this reasoning could apply).
3. With respect to the trial judge, who in oral directions was clearly adopting what defence counsel had put forward on this issue, there remains scope for the jury to have understood the impugned directions as relating to all counts (including the anal intercourse count) and hence to have understood that there was a third pathway to a finding as to the applicant's guilty mind - that being a basis which the Crown had not raised.
4. The question then is as to whether the applicant was thereby deprived of a real chance (or a chance fairly open to him) of being acquitted of count 3, such that a miscarriage of justice has occurred. In Robinson at [146] Johnson J (Spigelman CJ and Simpson J concurring) said: Unfairness to the accused in the conduct of the trial resulting from the trial judge's direction to the jury upon a basis for conviction not relied upon by the Crown may arise from a range of tactical disadvantages, including an inability to cross-examine Crown witnesses, adduce evidence in the defence case and make closing submissions to the jury on the matter: Solomon at 328, 336; GAS at 863; Carr at 285 [49]. Even if the prejudice to the accused was confined to the inability to address the jury upon the question, that itself is capable of being a most significant area of prejudice: R v RTB [2002] NSWCCA 104 at paragraphs 55-61; Meher at paragraphs 113-116, 130; Carr at 285 [49].
5. In Solomon at 327-328, Street CJ (agreeing with Moffitt P) noted that the unfairness is to be gauged by the tactical disadvantage suffered by the accused having to deal with a ground of liability raised by the trial judge and not by the Crown. Accordingly, a miscarriage is not made out merely by there being a basis of guilt advanced that is additional to how the Crown put its case.
6. In considering that issue, the evidence of defence counsel at trial should be accepted to the extent that he makes clear that there was no forensic decision taken not to object to the direction that is now impugned as opposed to a failure to appreciate the import of the oral directions. Of course it must be added that such an objection might well have been unexpected since the impugned oral direction followed defence counsel's own formulation of the directions. However, there might then have been scope to clarify that (whatever be the case in relation to the penile-vaginal count) there was no such basis on which the Crown was proceeding on the anal intercourse count.
7. More significant, however, is the problem identified by the Crown that there is no evidence on which such a direction could have worked, i.e., there was no evidence of a belief on the part of the applicant as to there being consent to anal intercourse (and hence no tactical or forensic disadvantage suffered by the applicant). To the extent that defence counsel at trial now deposes that he would have made submissions to the effect referred to in his affidavit, the Crown submits that (given the way that the applicant's counsel put his case at trial) there would simply have been the continued submission that anal intercourse did not occur (and there would have been no development of any response that was finely tuned to searching through the evidence of the ERISP and of the other witnesses to find some reasonable belief in consent to such intercourse).
8. For there to have been a miscarriage of justice in the present case requires the possibility that the jury might have convicted on the basis that the applicant believed he had consent but that this belief was not based on reasonable grounds (i.e., as counsel for the applicant put this on appeal, whether there is a real possibility or chance that the jury had a reasonable doubt as to whether or not the applicant believed that there was consent to what he did - see at AT 20.11ff). That would mean that the applicant lost the possibility of an acquittal on the anal intercourse count on the basis that actual knowledge or recklessness was not made out beyond reasonable doubt. The applicant points to the fact that the jury did acquit on the digital intercourse count.
9. In the course of oral submissions on the appeal, counsel for the applicant emphasised two aspects of the evidence (assuming the jury was satisfied that anal intercourse had occurred): first, the possibility that the applicant mistakenly believed he was engaging in vaginal sex (that being the possibility he adverted to in his ERISP i.e., that he had accidentally put his penis into the wrong place); and, second, that while he had no memory of the actual anal intercourse occurring he believed that there was consent to intercourse (it being argued that this could have been understood to be a general consent to all forms of activity) (see AT 15.31).
10. In this regard, in addressing the question whether there was any evidence on which the jury might have concluded that the applicant believed he had consent (to anal intercourse), counsel for the applicant accepted that if the jury inevitably was satisfied that the complainant (as was her evidence) said a clear "no" to anal intercourse then this appeal could not succeed. However, the applicant emphasised: that the account given by the applicant in his ERISP (that he asked if the complainant "wanted to" and she agreed) was not limited to penile-vaginal sex; that the account given to Ms Gately was that the complainant had not said yes or no (which involved the proposition that the applicant did not say no prior to the act occurring); that in the applicant's ERISP he made clear that he was not the sort of person who would rape someone, that he did not like anal sex and had never engaged in it, and that there was no discussion of anal intercourse; and that the complainant's evidence was that, as soon as the anal intercourse started, it was painful and the applicant stopped. In particular, the applicant submits that this last matter supports an inference that, when it became clear to him that there was an absence of consent, he immediately stopped and that in turn this permits an inference that until that point he believed that there was consent (AT 17). Insofar as the applicant said in his ERISP it could have happened by mistake, then it is submitted that, if that was the case, the position would be that the applicant believes there is consent to what he is doing but is just mistaken about what it is that he is doing (vaginal as opposed to anal intercourse) (see AT 17).
11. In essence, the applicant argues that, notwithstanding the absence of explicit assertions in his ERISP that he believed the complainant consented to anal intercourse, the jury might have thought (based on his denials of ever being the sort of person who would engage in non-consensual activity, his belief at the beginning that there was consent to sexual activity, the reasonable possibility that the complainant never said no, and the applicant's conduct when anal intercourse did occur that he immediately stopped when it became clear there was an absence of consent) that it was possible that the applicant believed he had consent to what he did, in which case the applicant submits that there has been a miscarriage of justice for the third pathway to conviction to have been left to the jury.
12. Pausing here, there are some seeming inconsistencies in the account given by the applicant in his ERISP and the submissions now made, including that in his ERISP the applicant described the reaction of the complainant as "acting normal" and "enjoying it" (Q/A 184-186) (which seems inconsistent with the account that he stopped immediately on some complainant's reaction to the anal intercourse) and the apparent inconsistency between the applicant's statement on the one hand that he was "not really into" anal sex and, on the other hand, that he had never engaged in it. However, those are of little moment.
13. The real difficulty with the submission that there has been a real possibility of a miscarriage of justice by reason of the impugned oral directions is that the applicant's evidence in his ERISP was that he variously denied the anal intercourse having occurred and that he did not recall it having occurred. His case was conducted on a basis inconsistent with him holding a belief that there was consent to anal intercourse (as was the suggestion in his police interview that if it occurred it was accidental). The submission that the belief that there was consent to anal intercourse could have been drawn from the general request to engage in sexual activity (i.e., the question whether the complainant "wanted to …") is not sufficient to establish a basis for the conjecture that the jury could reasonably have thought there was a belief on the applicant's part as to consent to anal intercourse. As the Crown notes, the applicant's case in essence was that there was a denial of anal sex, a lack of recollection of anal sex, and his account in the ERISP was that he was effectively unable to maintain an erection during the vaginal intercourse and no further intercourse occurred.
14. At T 283.6, counsel for the applicant emphasised in his closing address that the applicant "denied penetrating [the complainant's] anus with his penis and that he stated very clearly to the police that they had consensual penile vaginal intercourse". Counsel for the applicant went on to say at T 294.7-20: [The applicant] … said that he asked [the complainant] for sex. … And that there was no digital or anal penetration. It was no him using his fingers. There was no him using his penis and inserting it into her anus. [The applicant] denied that throughout the interview, particularly after the police started putting specific allegations to him. … So that's the interview. You can't - in my respectful submission - discount that as a reasonable possible truth.
15. Counsel for the applicant again said at T 299.6-9: [The applicant] was confronted with the detail of these allegations with his mother present, and he frankly and emphatically denied anal sex, or even suggesting anal sex to [the complainant]. He told the police that it was not his way, he didn't do that, and that he had never engaged in anal sex.
16. Hence, the jury could not reasonably be understood to have applied the oral directions as extending to the proposition that the applicant held a belief as to consent to anal intercourse.
17. In this regard, the present case is similar to Campbell v R [2014] NSWCCA 175, in which Bathurst CJ (with whom Simpson and Hidden JJ agreed), found at [190] that no real injustice arose where the case at trial was fought by the appellant on a basis that was inconsistent with the additional mental element raised by the trial judge. Moreover, Bathurst CJ noted at [192] that, even accepting that the alternative mental element raised the possibility of the jury speculating rather than reaching a decision on the basis of the evidence, the possibility was remote having regard to the evidence tendered by the Crown. The observations of Johnson J (with whom Hall and Price JJ agreed) in Sheen v R [2011] NSWCCA 259; (2011) 215 A Crim R 208 at [88] are also apposite: In R v Pureau, Hunt J observed at 377D-E that it may be difficult for an accused person to complain of a miscarriage of justice as a result of the late raising of an alternative verdict of attempt where the accused's case was a complete denial, so that there would be nothing which counsel could usefully have said in his closing address which would have assisted him on the alternative verdict.
18. As to the proposition by counsel for the applicant that one can be confident from the fact that the jury acquitted in relation to the count of digital intercourse (which the applicant denied in his ERISP) that this was because the jury had a reasonable doubt as to the respondent's guilty mind and hence this Court could not be confident that the jury did not find the applicant guilty of the count of anal intercourse on the basis that he had the relevant guilty mind in circumstances where they had been left the basis for finding that even if he believed there was consent (see AT 31), there is a clear distinction between counts 1 and 3 on the evidence that was before the jury. In particular, the complainant gave evidence that she was able to say a clear "no" to anal intercourse whereas her evidence was far less conclusive about the digital count; and there was the evidence of the anal tear (and the complaint to others including Dr Maxwell the following morning as to the injury sustained) which provided objective support that the incident had occurred.
19. Thus there was no miscarriage of justice occasioned by reason of the impugned oral directions (in the sense of losing a real possibility of acquittal). Leave should be granted to appeal against conviction and the appeal dismissed.
20. BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Ward P and Price J. I agree that the trial judge's direction described in their judgment at [45] about the basis upon which it could be found the applicant knew that the complainant did not consent to sexual activity could have been understood by the jury as relating to count 3 on the indictment and that basis of knowledge was not clearly raised at the trial. However, assuming that to be a relevant form of irregularity then, for the reasons discussed by their Honours, I do not consider that it had a "real chance" of affecting the jury's verdict (Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 at [41] and [47] per Kiefel CJ, Keane and Gleeson J at [118] per Gageler J) or "realistically [could] have affected the verdict of guilt" (at [123] per Gageler J), it follows that there was no miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW). I agree with the orders proposed by their Honours.

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