McGary v DPP

To similar effect were the observations of this Court in Robertson v DPP; DPP v Robertson [2026] ACTCA 11 at [118]-[119]. In summarising the relevant principles when considering an unreasonable verdict claim, the court referred to the same passage in Pell v The Queen [2020] HCA 12; 268 CLR 123 (Pell) referred to by Bell CJ in Quinn v R [2023] NSWCCA 229 and observed (at [119]): Under this ground, the court is required first to assess the evidence and then address the question whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. The second question to be addressed is whether, if there is a doubt (if that be the case) it can be resolved by the advantage of the jury in seeing and hearing all the witnesses led at trial. The greater the doubt that the appellate court might have, the less significance would be placed upon the advantage of the jury in seeing and hearing all of the witnesses. These are all matters of fact and degree because of the real disadvantage an appellate court has in assessing evidence that is presented merely in paper form. Expressed another way, the advantages of evidence being presented in the oral tradition of criminal trials is well understood and is paramount in our system of justice. It is not to be put aside or ignored based on what may only be a difference of view about the weight, credibility or meaning of particular pieces of evidence. A difference of view is insufficient to discharge the burden that the verdict of the jury is not supported by the evidence led at trial.

We respectfully disagree with Charlesworth J’s view that the starting point for this exercise is the principle stated in De Silva v The Queen [2019] HCA 48; 268 CLR 57, which is generally referred to as the Liberato direction (Liberato v The Queen [1985] HCA 55; 159 CLR 507 at 515). Rather the starting point is as indicated in Pell at [39]; that is, that the jury assessed the evidence of the complainant to be credible and reliable.

We observe that the trial judge did give a Liberato direction (trial transcript (T) p 498). In circumstances where the appellant had given evidence in the second trial and was then cross-examined at length, the Liberato direction was hardly given great prominence. Nevertheless, no issue was raised by defence counsel on the third trial about this, nor was any issue raised on this appeal.

Accordingly, the jury, acting in accordance with the direction, must be taken to have considered the appellant’s evidence, and having done so put it to one side. The verdict on count 3 indicates that the jury found Ms B credible and reliable in relation to that count.

As to the texts sent before the incident, care should be taken not to read too much into such an exchange. The texts sent on 13 April 2020, which are set out in full in the judgement of Charlesworth J, certainly evidence a flirtatious and suggestive exchange. In our view however, the jury were entitled to view this exchange as Ms B entering into, and pandering to, the sexual fantasies of the appellant. The exchange of frank and explicit text messages is in itself a form of sex, the popularity of which has greatly increased since the invention of the mobile phone. Just because a fantasy is entertained in text does not mean that it will be entertained in actuality. Another way of putting this is to say that text message sex is 2D and physical sex is 3D.

In that regard, Ms B gave the following evidence in relation to an earlier text exchange when the appellant had pressed her about engaging in a particular sex act(T 63.17): That and the next message from you, do you remember how you were feeling at that stage if you can remember this exchange at all?---Yes, it was – I was annoyed because he kept bringing it up and, you know, this was just, like, just what he wanted, the role play, but it didn't make me feel uncomfortable. I mean, these are, like, 2D text messages. They're not what was going on in my brain at the time. What do you mean by that, not going on in your brain at the time? What were you – what do you mean by that?---Like, I felt uncomfortable about having to, like, go along with it, but it was, like, the rule. It was, like, what I had to do. I was really quite entrenched and trapped in his behaviour.

As to the texts sent after the incident, and again the most relevant of those are set out in Charlesworth J’s judgement, the respondent on the appeal fairly characterised the appellant’s argument as being that Ms B did not behave in a way that was consistent with her allegations. There is much force in the respondent’s argument that the appellant’s submission presupposes that a complainant who has been sexually assaulted in the course of a relationship should behave in a particular way, and is based in misconceptions of the experience of sexual assault.

Ms B was extensively cross-examined, including at length in relation to the text messages. It was Ms B’s evidence that in the immediate aftermath of the incident she had been obviously upset and crying. Her evidence about the sending of the texts after the event was that she was attempting to placate the appellant, and that the sending of those texts was a “trauma response”.

The Crown at trial did call expert evidence from Jessica Pratley, a forensic and clinical psychologist. Part of this evidence went to the issue as to why complainants of sexual assault who were in a relationship with the perpetrator would stay in contact with the perpetrator. Any expectation that a person who has been sexually assaulted will not remain in a relationship is not borne out by complainant behaviour in the real world. Not only is this an issue of expert evidence, it is very much the experience of this court in dealing with such matters.

We agree with Charlesworth J that the fact that Ms B had deleted messages, and denied sending some of the messages at all, raises a significant issue with Ms B’s credit. A consideration of the messages actually deleted, however, does not suggest any particular effort on Ms B’s part to conceal the substance of the text communications between herself and the appellant. Many of the texts sent on 13 April were not deleted. Further, the messages sent on 17 April and 19 April 2020 were not deleted. In other words, it is not possible to infer from the whole of the evidence that the deletion of the texts by Ms B was an attempt by her to control the narrative.

Ms B was asked why she had deleted the messages (T 76.17): I just wanted to ask you, do you recall actually deleting some of the text messages between you and he?---Yes. And can I just ask why that was?---Because looking back over it, they were just so vile and grotesque, and given that what he did to me, it just made me feel so dirty and ashamed. All right. At that stage, I think you said something like this to police, 'But I'm sure you'll be able to get them back'?---M'mm. What were you referring to there?---Cellebrite. So you understood at that stage that police were wanting to access your phone?---Correct, yes. And so are you referring there that you thought police would have the tools or mechanisms to be able to recover deleted messages?---Yes, that's what [a police officer] told me.

It was open to the jury to accept Ms B’s evidence about this.

As to the matters set out above said by the appellant collectively to raise serious credit issues in respect of Ms B, again Ms B was extensively cross-examined at trial about those matters and the jury was in a position to adjudicate upon the explanations which Ms B offered.

The situation here is distinct from that under consideration in Pell. In that case the Court recognised the starting assumption of the jury’s acceptance of the credibility and reliability of the complainant’s evidence. The appellate court examines the record to determine whether, notwithstanding that assumption “either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt” (Pell at [39]). In Pell the Court was able, in light of other evidence external to the complainant, to reach the position that the jury, acting rationally, ought to have entertained a reasonable doubt, notwithstanding the assumption of the complainant’s credibility and reliability. The jury’s conclusion as to the complainant’s evidence was not disturbed. The same cannot be said in this case. Here the jury had the benefit of all of the evidence of Ms B and of the text messages set out earlier. They must have reached the view, notwithstanding that material, that Ms B’s evidence was credible and reliable as to the issue of lack of consent. To find otherwise on appeal would be to undermine the role of the jury in assessing the evidence.

In our view, this is a case where, if there is a doubt, it can be resolved by the advantage of the jury in seeing and hearing all the witnesses led at trial; cf. Robertson v DPP; DPP v Robertson at [119]. Ms B was in the witness box for five days and was cross-examined over more than four days. The appellant gave evidence and was cross-examined. The jury considered their verdicts into a fourth day. The jury’s verdict is not to be put aside or ignored based on what may only be a difference of view about the weight, credibility or meaning of particular pieces of evidence.

We conclude that the verdict on count 3 was not unreasonable.

This may well have happened in the present case. There was a clear basis for a distinction to be made between count 2 and count 3, in a way that did not necessarily mean the complainant was disbelieved. The “something additional” which justified the verdict of guilty on count 3 was based on the complainant’s evidence, being the clear reluctance of the complainant and her uttering of the words “no, no”.

We note that although the consequence of the finding that the verdict on count 3 was not unreasonable will be that there will be an order for a new trial on count 3, it will be in the first instance a matter for the discretion of the Director of Public Prosecutions whether a further indictment on count 3 will be pursued. Given the history of this matter, that will no doubt be a matter which will require careful consideration by the Director.

The trial judge went on to conclude that the tendency ruling should not be revoked and that the directions that could be given in respect of the tendency evidence should be left to Mossop J (the trial judge for the purposes of the Second Trial) to decide.

The Second Trial commenced on 30 July 2024.

At the Second Trial, Ms B and Mx A each gave evidence, as did the appellant. The jury was unable to reach a verdict and was discharged on 14 August 2024.

On 30 October 2024 a summons was filed in relation to the alleged offending against Mx A. That charge was committed to trial on 11 March 2025. It became count 1 on the indictment forming the subject of the third trial (the Third Trial). On the same indictment, counts 2 and 3 (relating to Ms B) were in identical terms to counts 1 and 2 alleged at the Second Trial.

On or around 4 April 2025 the prosecutor served a Notice of Intention to Adduce Tendency evidence (Tendency Notice). As expressed in that notice, the asserted tendency for the purposes of the Third Trial was: That the accused had a tendency to act in particular ways, and have particular states of mind, namely: To have sexual intercourse with an intimate partner where that person has indicated a lack of consent to the sexual intercourse and where consent has previously been forthcoming in relation to past acts of sexual intercourse.

That is different from the tendency considered by Mossop J in advance of the Second Trial, including because the alleged tendency to physically restrict women (including by moving on top of them) had been removed.

The substance of the evidence notified in the Tendency Noice is a fair reflection of the evidence given by Mx A and Ms B at the Second Trial, and the transcript of the evidence-in-chief given by each of them is referenced in the Tendency Notice itself. It is extracted here as a convenient means of summarising the Crown’s case (errors in original): Incident 4 (count 1) On about 19 Jul 2016 the accused and [Mx A] were in the accused’s room […]. In the weeks beforehand they had slept together a handful of times but agreed not to do that anymore. They were lying on the bed talking. The accused was putting his face closer and closer to [Mx A’]s face to the point their lips were touching. [Mx A] kissed the accused to stop him asking questions. The accused quickly took off her clothes. He then took off his clothes. He then moved her to perform oral sex on him. She did for a bit. She then said, ‘I don’t want to do this … Sex … I don’t think it is a good idea’. The accused said okay. They lay in the bed next to each other and continued chatting. The accused said that he didn’t want to sleep together anymore and said, ‘It would be a big mistake’. [Mx A] joked, ‘I’ve never made a mistake in my life’. Then the accused moved on top of her and […] [Mx A] froze and did not consent to what happened to her. After a while the accused ejaculated on her stomach. […] Incident 5 (counts 2-3) […] On about 17 Apr 2020 the accused and [Ms B] were in her car parked near the Cotter Campground, Stromlo. They put some towels and jackets up around the car for privacy and put the back seats down. They were cuddling and got undressed and kissed. The accused said, ‘Do you trust me?’ [Ms B] replied, ‘What do you mean?’ He then got his belt and tied her hands and kissed her some more. He then got her legs and moved her in the foetal position her side. He then put his fingers up her anus. [Ms B] said, ‘Wait, I’m really scared’. He said, ‘All girls say that at their first time’. And she said, ‘No, I’. However, the accused inserted his penis into her anus and had intercourse. [Ms B] froze and did not consent to what happened to her. (Emphasis in original, footnotes omitted.)

On 8 May 2025, the appellant made an application seeking a series of orders founded on an allegation of unfairness arising from the laying of the charge in relation to Mx A and the proposed trial joining counts 1, 2 and 3. The alternative claims for relief included an order for a permanent stay of the charge in relation to Mx A, an order that the counts relating to Mx A on the one hand and Ms B on the other be severed, an order that the orders of Mossop J granting leave to adduce tendency evidence be set aside, and an order that Mx A and Ms B be recalled for further cross-examination.

The permanent stay application was prioritised and dismissed by McCallum CJ: McGary (No 11). The other claims for relief were not heard. The appellant commenced an application for leave to appeal from that judgment.

Through his lawyer the appellant confirmed in correspondence to the DPP that he did not pursue the remainder of his application.

Leave to appeal from the decision of McCallum CJ was refused by Baker J: McGary v DPP [2025] ACTCA 22. The Third Trial commenced on 14 July 2025.

At the commencement of the Third Trial, the prosecutor raised with the trial judge the topic of “the tendency evidence, the cross admissibility both ways”. The trial judge then had this exchange with the appellant’s Counsel: HER HONOUR: That was in an application and, [Counsel], you then didn’t pursue the application because you said all those issues were resolved. I assumed that meant that the cross admissibility was agreed. COUNSEL: Yes, your Honour. For the defence part it is.

The evidence at the Third Trial included the video recordings of the evidence of Mx A, Ms B and the appellant as given for the purposes of the Second Trial. The appellant did not apply to have the evidence excluded, nor did he seek to have either of the complainants recalled for further cross-examination, nor did he give further oral evidence of his own.

There was no apparent forensic advantage to be gained by the decision not to oppose admission of the tendency evidence on the same (and additional) grounds upon which the tendency evidence considered by Mossop J was opposed. Consistent with Counsel’s submissions on this appeal, it is reasonable to conclude that Counsel took the view that the availability of an appeal from any conviction following the refusal of the application for a permanent stay was sufficient to protect the appellant’s interests, perhaps because it was thought that the tendency question was subsumed in the stay question. If that is so, it was unwise. Counsel should have formally put on the record the appellant’s position of opposing the tendency evidence, if only for the purpose of preserving that position for the purpose of any appeal. In any event, on this appeal, the DPP did not assert a factual foundation from which it could otherwise be inferred that the failure to oppose the admission of the tendency evidence was the product of a tactical choice now sought to be departed from.

In considering the grant of leave it is also necessary to emphasise that the role of this Court is to detect error. The trial judge was urged to act upon the parties’ agreed position with respect to the admissibility of the evidence. That circumstance weighs against the grant of leave.

Notwithstanding that observation, I consider that the argument that the evidence was not admissible as tendency evidence is meritorious. More than that, as explained below, I am satisfied that the arguments are correct and that a substantial injustice might occur if leave were not granted.

Section 97 of the Evidence Act 2011 (ACT) is as follows: (1) Evidence of […] a tendency that a person has or had, is not admissible to prove that a person has or had a tendency […] to act in a particular way, or to have a particular state of mind unless – (a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.

Under s 101(2) of the Evidence Act, the prosecution is precluded from using tendency evidence against the accused “unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant”.

The appellant advanced two arguments. First, it was submitted that the condition that the evidence have “significant probative value” was not met. The test is that explained by the majority in Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Kiefel CJ, Bell, Keane and Edelman JJ) at [41]: The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

Furthermore, in cases concerning allegations of sexual offences against multiple adult complainants, there must generally be some feature about the offending that links the offending together. In R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 at [58] the High Court held: In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true. (Footnotes omitted.)

The tendency evidence is extracted earlier in these reasons. It is in the form of a summary of witness accounts describing the two events underpinning the charged acts. The “tendency” itself is described in terms that resemble a bare statement of the elements of the offence founded on a reckless state of mind, coupled with a circumstance of the complainant having expressed an unwillingness to have sexual intercourse. The evidence related to two incidents occurring nearly four years apart involving different penetrative acts at different location types. More significantly, the probative value was affected by a significant body of evidence concerning the nature of the relationship between the appellant and Ms B discussed later in these reasons.

On a proper review of the whole of the evidence, a verdict of guilt could only have been founded on a finding that the appellant persisted with digital penetration of Ms B, after Ms B said words that could be interpreted as a withdrawal of consent previously given. In other words, the case of Ms B involved the withdrawal of the complainant’s consent in the course of sexual activity that had commenced with her consent. In the case of Mx A, the relevant penetrative act commenced after Mx A had said words indicating an unwillingness to have sex at all. Those matters further affected the capacity of the evidence to prove the tendency.

Moreover, as the majority said in Hughes (at [64]): The assessment of the significant probative value of the proposed tendency evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. The tendency expressed as a high level of generality might mean that all the tendency evidence proves significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. […]

For the appellant it was submitted that the vagueness and non-specificity of the asserted tendency served only to underscore the features of the offences that were not common. I accept that submission. The evidence shows little more than the fact that the two complainants have made allegations against the accused in respect of the events alleged in the indictment itself. The conduct or state of mind underpinning the tendency is a tendency to commence or continue sexual intercourse in circumstances where lack of consent has been communicated. Other aspects of the tendency (a tendency to have sexual intercourse with an intimate partner in a context where past acts of sexual intercourse have been consensual) is a generic statement of little or no forensic force. The only circumstance that would render the elements of the offence more likely was that two people had alleged a sexual offence against the appellant rather than one. The tendency evidence did not meet the standard of “significant probative value” to warrant its admission under s 97.

The appellant’s second argument was that the evidence should have been excluded because it was more prejudicial than probative. In considering that submission it must be borne in mind that all tendency evidence adduced by the Crown will be “prejudicial” in the sense that it may (if properly admitted) legitimately support an inculpatory process of reasoning. That is the very purpose of the evidence.

The consequence of admitting the evidence was to permit the jury to reason that the circumstance that two people had made an allegation against the appellant of non-consensual sexual intercourse per se made it more likely that each complainant was telling the truth. That reasoning would not be available in a case in which the tendency evidence was not admitted. The only justification for the joinder of the allegations in a single indictment was to facilitate the cross-admissibility of evidence of each complainant in the case concerning the other upon a ruling given under s 97. If the trial on count 1 were conducted separately from the trial on counts 2 and 3, the body of evidence supporting the case of the Crown in respect of each complainant would have been lesser in scope and fundamentally different in nature. The weak probative value of the evidence is outweighed by that prejudicial effect.

There is a secondary aspect of prejudice arising from the process of reasoning of the jury culminating in the verdict of guilt in respect of the relevant counts. To employ the evidence of Mx A in support of the charge in count 3 (relating to Ms B), the jury could only have reasoned that the version of events alleged by Mx A was true. In that reasoning, the evidence of Mx A would have the status of circumstantial evidence, and so would not, in itself, be subject to the criminal standard of proof: The King v AR [2026] HCA 10. The same applies in connection to the chain of reasoning culminating in the guilty verdict in respect of count 1 (relating to Mx A), via the tendency evidence of Ms B. The admission of the evidence makes that highly inculpatory process of reasoning permissible when otherwise it would not be. The prejudicial effect is doubled when the tendency evidence replicates a charged act. In my view, that only serves to highlight the need for the probative value of tendency evidence to be not only “significant” for the purposes of s 97 of the Evidence Act, but to have a degree of significance sufficient to overcome prejudice of the kind just described in accordance with s 101(2). The words “significant” and “substantially” must be given work to do. Neither standard was met in the present case.

It is for that reason that I consider the appellant should have leave to raise this issue, notwithstanding that no opposition was raised by the appellant’s Counsel to the admission of the evidence at the commencement of the Third Trial. I should emphasise that these reasons should not be understood to impugn the conclusions of Mossop J. As explained earlier in these reasons, his Honour was concerned with a different Tendency Notice arising in the context of the Second Trial.

The consequence of upholding this ground of appeal is that the verdicts in respect of count 1 and count 3 must both be set aside. Whether there should be a separate retrial in connection with those counts depends upon the outcome of other grounds.

The trial judge heard evidence from Detective Sergeant Badderham of the Australian Federal Police (AFP), the officer in charge of the investigation into the allegations made by Mx A. Detective Badderham told that Court that Mx A had first spoken to the AFP in 2016 but at that time had “decided not to proceed with the charges”.

Between the First Trial and the Second Trial, Detective Badderham conducted a review of the 2016 investigation, although it appears more accurate to say that she recommenced the investigation with a view to charging the appellant with an offence. She took civilian witness statements in March 2024. Importantly, the appellant was afforded the opportunity to be interviewed (which he declined). A search warrant was executed at his place of residence and Detective Badderham reviewed the seized materials. At the time that the Second Trial commenced on 30 July 2024, Detective Badderham was aware that the appellant had applied to have that trial vacated on grounds that included the circumstance that no decision had been made to lay a charge in respect of the acts alleged by Mx A.

Following the discharge of the jury on 13 August 2024, no further steps were taken in the investigation into the allegations made by Mx A. A summons against the appellant in respect of those allegations was prepared by Detective Badderham and filed in October 2024. As recorded by the trial judge, Detective Badderham said in cross-examination that the catalyst for coming to the view at that point that there was sufficient evidence to warrant the issuing of the summons at that time was “nothing more than an issue of time and opportunity to revisit this investigation and submit that summons”: McGary (No 11), [11]. Detective Badderham told the trial judge that the circumstances that the investigation had commenced on 19 September 2023 and that the summons had issued on 30 October 2024 “was simply a case that that was when everything came together and I had an opportunity to submit a summons brief”. Detective Badderham confirmed that she was not required to prepare a report or obtain approval from any other person before laying the charges, but she did need to form a view to proceed and to prepare the summons and a summary of the evidence.

It was not put to Detective Badderham that she (or the police generally) had committed any act of impropriety or negligence to bring about the circumstance that the appellant had given evidence about Mx A’s allegations before the charge in connection with those allegations was laid: McGary (No 11), [27].

The trial judge concluded that Detective Badderham had a “very considerable workload” including because of her role as the team leader in a review established to explore why so few sexual assault reports proceeded to a charge: McGary (No 11), [13]. Detective Badderham had described her work on that review as a “competing” work priority.

The trial judge went on to summarise the appellant’s submissions, including his reliance on Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; 266 CLR 325 and the incidents of unfairness asserted by the accused in that case (discussed later in these reasons). Her Honour identified that the most significant consideration in favour of granting the stay was the fact that the appellant had “locked himself into a sworn version of events concerning [Mx A] before being charged with offences concerning her”. However, that circumstance was not, her Honour said, a consequence of any impropriety on the part of the executive: McGary (No 11), [25]. Her Honour continued (at [28]): […] in the absence of any allegation of impropriety or even negligence, the point reduces to a complaint that the decision whether to lay charges in respect of Ms A’s allegations should have been prioritised over whatever other priorities the Detective was juggling at the time.

The trial judge said that it was clear that Detective Badderham was dealing with a very substantial workload and that the expectation that the police would address the concerns that had prompted the broader review was a priority. Her Honour accepted that the appellant was “between a rock and a hard place” (adopting Counsel’s phrase) in deciding to give evidence at the Second Trial, however the decision was a forensic choice and his right to silence “was not defeated by any improper conduct” of the police or the DPP: McGary (No 11), [29]. The trial judge concluded (at [30]): While the timing is unfortunate, I do not accept that it has had the result that the use of the court’s procedures is unjustifiably oppressive and amounts to an abuse of process. In opposing the application to vacate the hearing date for the second trial, the DPP was justifiably concerned to see the charges involving Ms B finalised. As already noted, she has already experienced significant anxiety as a result of the proceedings. As to the charges concerning [Mx A], the course of the investigation and laying the charges by the AFP, operating as it does with constrained resources, was beyond the control of the DPP. Neither authority has control over the processes of the other. The arguments on this appeal

In broad summary the appellant’s contention is that the “choice” he had made to give evidence at the Second Trial in August 2024 in response to the tendency evidence adduced from Mx A was not a free choice to waive his right to silence or expose himself to penalty in respect to the charge later laid in October 2024. Rather, he contended, his right to silence in connection with the acts then alleged to have been committed against Mx A (then a tendency witness) had been irreparably undermined because he was put in the position of defending the charges relating to Ms B, in which the alleged assault against Mx A had been introduced by the DPP as an issue.

The appellant submitted that the trial judge ought to have found that a trial on count 1 could not fairly proceed, irrespective of whether the AFP or DPP had acted unlawfully. He submitted that the unfairness arising at the Third Trial could have been avoided by the DPP laying an ex officio indictment so as to ensure that the charge relating to the complaint of Mx A could form part of the subject matter of the Second Trial. The appellant submitted that his case was on “all fours” with Strickland because, like the appellant in that case, he had been locked into a version of events by no real choice of his own. The choice, he said, was illusory.

The Crown submitted that the appellant’s decision to testify at the Second Trial was his own forensic choice and there had been no wrongdoing on the part of the AFP or the DPP. It was submitted that to the extent that the appellant was at a forensic disadvantage at the Third Trial by virtue of his choice to go into evidence at the Second Trial, the disadvantage was no different to that which arises in every case in which a retrial is ordered, where the accused has testified at the original trial (as on remittal following a successful appeal or as in a case where a jury is unable to reach a verdict). It was further submitted that no injustice ensued because at the Third Trial the case run by the DPP was substantially identical to that run at the Second Trial. The Third Trial evidence was limited to the recordings of evidence of the two complainants and the appellants, and evidence called from a psychologist concerning the evidence, words and conduct of Ms B.

The majority held (at [76]) that the unlawful requirement to give answers in respect of an offence of which a person was suspected (but not yet charged) “fundamentally alters the accusatorial process for the investigation, prosecution and trial of that offence by unlawfully compelling the person to provide the prosecution with information”. Their Honours continued (at [78]): Such a person cannot decide the course which he or she should adopt at any subsequent trial according only to the strength of the prosecution case as revealed by the material provided by the prosecution before the trial or to the strength of the evidence led by the prosecution at trial. Such a person must decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to the answers which he or she has been unlawfully compelled to give at the examination. And as will be explained in greater detail later in these reasons, such a person is thus denied the protection of the common law right to refuse to answer any question except under legal compulsion […]

The majority emphasised that the appellants had a lawful entitlement to put the Crown to proof and it was not incumbent on the appellants to demonstrate the respects in which the prosecution had been advantaged. In any event, it was difficult to comprehend how that could be done: at [83]-[84].

The majority said that the administration of justice had been brought into disrepute by virtue of the forensic advantage obtained in circumstances where there had been a reckless disregard of the ACC’s statutory responsibilities: at [86].

In summary, the wrongdoing identified in Strickland was the improper purported use of a statutory provision that abrogated the right to silence in circumstances where the examinees had previously exercised that right. That occurred at the level of the executive government, specifically by the AFP and ACC acting cooperatively to gather unlawfully what they could not gather lawfully. That conduct had the effect of committing the examinees into a version of events in respect of the charged acts. The phrase “locked into a version of events” is a shorthand way of describing the consequence that the examinee was compelled by the examiner to disclose his defence to a charge not yet laid and before the Crown had closed its case in respect of the charge. The relevant abuse of the Court’s process was the bringing of the charge in circumstances where a statutory provision abrogating the accused’s right to silence had been knowingly misused in a way yielding to the prosecution an advantage that could not be ameliorated by the exercise of the Court’s powers. It was for that reason that the commencement and continuation of the prosecution was liable to bring the administration of justice in the Court itself into disrepute. The present case

The foundational principle is the common law right to silence. As stated in Strickland at [95], the content and significance of that right as follows: […] subject to statute, an accused is not to be called upon to answer an allegation of wrongdoing until presented with particulars of the evidence on which it is proposed to rely in proof of a charge and then only to enter a plea of guilty or not guilty when and if charged. As was made plain by the majority in [X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92], those fundamentals of the criminal justice system comprise the common law “right to silence”, which includes the substantive right of any person to refuse to answer any question except under legal compulsion and the privilege of any person to refuse to answer any question, and which, subject to statute, applies to all stages of the process to all persons suspected of an offence whether charged or not yet charged as well as at trial. (Footnotes omitted.)

The Crown’s submissions on this appeal focussed on the “choice” of the appellant. In my view, it is informative (although not determinative) to focus on the acts and omissions of the AFP and the DPP in advance of both the Second Trial and the Third Trial and to ask whether, as a consequence of those acts and omissions, the appellant’s right to silence was undermined in such a way as to give rise to unfairness. Unfairness may arise if the Crown at the Third Trial had had a forensic advantage it would not otherwise have had but for those acts or omissions.

As the trial judge explained in McGary (No 11), the legal context is such that the AFP and the DPP are separate entities and neither has control over the other. That may be so, but they are both agencies of the Crown and, by virtue of the appellant’s protestations in advance of both the Second Trial and the Third Trial, both were aware that he was asserting unfairness in the manner in which their powers and discretions were exercised. In respect of the AFP the relevant power was the power to commence a proceeding by way of summons. In respect of the DPP, there existed at all times the power to proceed by way of ex officio indictment in respect of the offences alleged to have been committed against Mx A in advance of the Second Trial. There existed at all times the power and discretion to consent to the delay of the commencement of the Second Trial until such time as a decision to charge the appellant with offences (based on the very same evidence to be adduced as tendency evidence) was made by the AFP by way of summons or by the DPP by way of ex officio indictment. In the result, the interests of the complainant Ms B were elevated over the interests of the appellant receiving a fair trial.

The trial judge described the appellant as being “between a rock and a hard place”: at [29]. That correct observation was strongly indicative of unfairness. It invites the question as to how a person charged with a criminal offence could ever be so situated. To say that a person is between a rock and a hard place is to accentuate the absence of a real choice.

In my view, the trial judge was in error to limit the enquiry to one turning on the question of whether the DPP or AFP had acted unlawfully. Irremediable unfairness in a criminal proceeding may arise by reason of choices made by investigating and prosecuting authorities falling short of unlawful or improper conduct. And as the High Court confirmed in William v Spautz, a permanent stay may be ordered in any event if the proposed trial would be affected by irremediable unfairness.

Here, the DPP: (a) sought and obtained leave to rely on the tendency evidence of uncharged offences against Mx A at the Second Trial at a time when the same tendency evidence had been obtained for the purpose of laying a charge against him; (b) opposed the appellant’s application to vacate the Second Trial until such time as a charge in respect of the offence alleged by Mx A could be laid (by way of summons or ex officio indictment), notwithstanding that: (i) the appellant had asserted the irremediable unfair consequences of proceeding in that way; and (ii) the commencement of the Second Trial had previously been delayed in any event (following the original discharge of a jury in 2021) in order for tendency evidence concerning Mx A’s allegations to be gathered and readied for the trial concerning Ms B; (c) exercised the leave to adduce tendency evidence (including testimony from Mx A) in the circumstance described above, so putting the appellant to the “choice” of going into evidence in respect of that subject matter in order to defend the allegation of two offences committed against Ms B; (d) subjected the appellant to cross-examination, including in connection with the uncharged allegation concerning Mx A, whilst at the same time anticipating that the appellant would be charged in respect of that conduct irrespective of the outcome of the Second Trial.

The trial judge identified the legitimate public interest in the charged offences alleged to have been committed against Ms B proceeding to trial and the impact of the delay of that trial on Ms B. However, as I have said, the delay from 2021 to 2024 was explained in part by the decision to investigate the allegation of Mx A and to defer a further trial in connection with Ms B’s complaint in the meantime. Two further things may be said about that. First, as Counsel for the Crown on this appeal properly acknowledged, it was open to the DPP to lay an ex officio indictment in connection with the acts alleged by Mx A. No explanation was given as to why that could not be done. Second, the interests of a complainant, no matter how compelling, cannot be elevated in priority over the imperative that an accused be afforded a fair trial. It always remained open to the DPP not to call Mx A as a tendency witness in the Second Trial. It made the forensic decision to call Mx A.

It was open to the DPP to seek to adjourn (or agree to delay) the Second Trial until the appellant was charged with the offence involving Mx A. It was significant that Mx A had given her EICI on 11 May 2023 and the DPP had notified its intention to call her as a witness as early as 23 June 2023 when it filed its original Notice of Intention to Adduce Tendency Evidence. At the time of the appellant’s application to vacate the Second Trial dates, there was no evidence to suggest that the AFP or DPP required, or intended to gather, any further evidence before a decision could be made to charge the appellant. So much is reinforced by the fact that no additional evidence in connection with that act was adduced in prosecution of count 1 at the Third Trial.

Furthermore, the DPP’s explanation for delaying the Second Trial between 2021 and 2023 appears to have been wholly related to the choice to gather and adduce the tendency evidence of Mx A. In the circumstances described, the interests of Ms B in having her complaint promptly proceed to the trial (whilst important) was somewhat diminished. It ought not to have been prioritised over the obligation to ensure that the appellant received a fair trial in respect of the impending additional charge.

The Crown submitted that in a case where an accused goes into evidence and there is subsequently a new trial (as in the case of a hung jury or upon remittal following a successful appeal) the accused will be at the same species of disadvantage in the new trial as that complained of by the appellant in the present case. The accused will have gone into evidence and committed himself to a version of events that cannot be departed from, and the prosecutor will have the advantage of preparing evidence-in-chief, cross-examination and documentary evidence knowing the case the accused advanced. I do not accept that submission.

In respect of count 1, the appellant was at a disadvantage at the Third Trial because he had disclosed his defence to the prosecution in respect of the same (then uncharged) act by giving evidence in the Second Trial in which Mx A gave tendency evidence. He was also disadvantaged at the Third Trial in respect of counts 2 and 3, as he had given evidence about equivalent counts in the Second Trial. The disadvantage in respect of counts 2 and 3 is a consequence of the administration running its course in connection with those counts.

The disadvantage arising in respect of counts 2 and 3 was not the consequence of any act or omission on the part of the AFP or the DPP, nor is it the subject of any ground of appeal. It is a disadvantage that arose by virtue of the jury being unable to reach a verdict. Nothing in that outcome has its source in the conduct or choices of the AFP or DPP. At the Second Trial, the time for deciding whether to forego the right to silence in respect of the offences then tried was at the closure of the Crown case. Nothing about the conduct of the Second Trial undermined the appellant’s right to silence in respect of those particular counts.

The appellant’s arguments on this ground of appeal are appropriately confined to count 1. Once the focus is on the administration of justice with respect to the appellant’s ultimate conviction on that count, it can be seen that the appellant’s “forensic choice” to give evidence in the Second Trial concerning Mx A was indeed illusory. The appellant could not go into evidence to defend the charged acts relating to Ms B without foregoing the right to silence he had thus far maintained in connection with the then-uncharged allegations made by Mx A. In that sense, he was effectively called upon to disclose his defence in respect of the complaint that was to become count 1 before the trial of that allegation had commenced, or face the peril of conviction on a different charge. It is not correct to describe that state of affairs as involving the exercise of a forensic choice.

It is significant that at the time that the Second Trial commenced in August 2024, the AFP had gathered the evidence it proposed to gather in order to form a view as to whether to lay a charge. So much was acknowledged by Detective Badderham. All of the evidence had been gathered and it remained only for her to consider the material and lay the charge. At the same time the DPP was utilising the very same evidence to persuade a jury that the appellant had the alleged tendency in order to secure a conviction in respect of the offences committed against Ms B.

The summons culminating in the Third Trial issued just two months following the conclusion the Second Trial.

As to Detective Badderham’s “competing” priorities, that state of affairs only serves to demonstrate the known fact that the AFP prioritised other matters over the laying of the charge. It is true that the AFP may prioritise its work as it thinks fit. However, it does not follow that its choices must be of no consequence when a prosecuting authority later invokes the Court’s jurisdiction. One of those consequences may be that the subsequent charge cannot be fairly prosecuted. Irremediable disadvantage

In advance of the Third Trial, the trial judge ought to have found that the appellant was at a forensic disadvantage in connection with count 1 as a consequence of choices previously made by the AFP and DPP in the conduct of the Second Trial and not by virtue of any relevant “forensic choice” of his own. The trial judge ought then to have considered whether the disadvantage could be remediated by orders fashioned to achieve a fair trial. If no orders could ameliorate the disadvantage, the trial judge ought then to have considered whether the prosecution of count 1 amounted to an abuse of the Court’s processes, notwithstanding the absence of deliberate wrongdoing of the kind considered in Strickland.

At the Third Trial, the appellant was at a disadvantage of the same kind faced by the appellants in Strickland, brought about by the forensic decisions of the AFP and DPP at the Second Trial. The relevant disadvantage was that the Crown was in possession of information and evidence disclosing his answer to the allegations made by Mx A. It is not correct to say that the choice to disclose that information was as a consequence of a true choice to forego his right to silence in respect of Mx A. It is more correct to say that his right to silence was compromised and undermined such that if he wished to give evidence to defend the charges related to Ms B (the rock), he had no choice but to also go into evidence in connection with the acts alleged by Mx A (the hard place). Of itself, that did not give rise to unfairness at the Second Trial. The unfairness arose at the Third Trial by virtue of the Crown then having an advantage it would not otherwise have had in respect of what then became count 1. That unfairness was both foreseeable and avoidable.

As explained below, that advantage could not be avoided or ameliorated by the exercise of the Court’s powers in advance of, or in the conduct of, the Third Trial.

For the Crown, it was submitted that there could be no unfairness because the evidence adduced at the Third Trial was limited to the recordings of evidence given by Ms B, Mx A and the appellant himself. It was submitted that it was open to the appellant to apply to have either (or both) of the complainants recalled for further cross-examination, or to apply to have evidence excluded, or for an order revoking the leave to adduce tendency evidence, and yet he had made no such applications.

The applications referred to could not have avoided the unfairness I have identified. The appellant lost the entitlement to put the Crown to proof in respect of the allegation of Mx A (both the physical and mental elements) without the Crown having prior knowledge of any previous statements made by him in answer to that allegation, other than statements freely made upon foregoing his right to silence before the trial commencing. It is the very same species of disadvantage referred to by the High Court in Strickland absent proof of wrongdoing as its cause. Once lost, that entitlement could not be regained.

The fact that the Crown (at the Third Trial) replayed the recordings of evidence adduced at the Second Trial does not counter the unfairness but rather serves to illustrate it. At the Third Trial, the appellant had no choice but to present his case vis-a-vis count 1 in the same manner presented when Mx A had the status of a tendency witness in another trial. If he went into additional evidence at the Third Trial, he could be cross-examined by reference to anything said by him at the Second Trial. If Mx A were called to give evidence-in-chief again, that evidence could be adduced with the knowledge of the defence that the appellant would run, and Mx A could be proofed for cross-examination with the benefit of the knowledge gained by the DPP at the Second Trial.

The disadvantage identified would arise irrespective of whether count 1 was severed from counts 2 and 3 and irrespective of whether tendency evidence was cross-admitted vis-a-vis count 1 on the one hand and counts 2 and 3 on the other. It is not necessary to show that the Crown consciously exploited the disadvantage. It is sufficient to show that the appellant was unfairly constrained in the legitimate choices he could make in the presentation of his case at the Third Trial, referable to the choices of the AFP and DPP discussed in these reasons.

The conclusion on this appeal is that the trial on count 1 miscarried and that a retrial would miscarry for the same reason.

To proceed with a trial in the circumstances described would be to submit the appellant to a process affected by unfairness by virtue of him having lost an entitlement to maintain his right to silence in respect of the charge. The correlative advantage of the Crown was a result either of its forensic choices or the error of the primary judge in permitting count 1 to proceed to trial. To the extent that it is necessary to characterise the Third Trial as an abuse of process of a particular kind, it suffices to say that the invocation of the court’s procedures was unjustifiably oppressive to the appellant and so brought the administration of justice into disrepute.

On any retrial, the Court’s powers could not be exercised in a fashion so as to avoid the disadvantage of the appellant, and the correlative advantage of the Crown in respect of the offence concerning Mx A.

The appropriate remedy is to set aside the conviction for the offence alleged in count 1 and to make no order for retrial in respect of that count.

It remains to consider whether the appellant is entitled to be acquitted of the charge in count 3.

I have concluded that a jury acting in accordance with those principles must find that the appellant’s version of events might be true. If that conclusion be wrong, I would find in any event that, putting the appellant’s account aside, the evidence was insufficient to prove the offence to the criminal standard.

The appellant did not deny the act of penetration forming count 3. The issues at trial went to the fact of Ms B’s lack of consent, and to the appellant’s state of mind. With respect to the mental element, submissions on the appeal proceeded from the correct premise that it was sufficient for the Crown to prove, beyond reasonable doubt, that the appellant had failed to advert to the question of whether Ms B was consenting or not.

In evidence before the jury were extensive text messages passing between Ms B and the appellant over the course of their relationship. The messages evidence an explicit and robust exchange of sex-talk, each expressing their desires, fantasies or intentions to the other. The Court is mindful of the embarrassment that may be caused by the publication of those intensely private exchanges to both the appellant and Ms B in these reasons for judgment. However, it is not possible to explain the outcome of this appeal without directly addressing their content and their forensic significance. To describe in detail the charged acts without describing in detail the surrounding context would be to distort the facts and to leave the outcome unexplained.

It is of course necessary to have regard to all of the text messages in evidence, considered as a whole. They are referred to in an additional note submitted by the Crown following the hearing of the appeal. I do not consider the messages as a whole preclude the following findings, based on the messages extracted here.

Also before the jury was objective evidence showing that Ms B had deleted from her phone about 14 of the text messages. Her conduct in doing so was clearly proven by a comparative analysis of text messages retrieved from the appellant’s phone, and those present on Ms B’s phone. It was not put to the appellant that the messages on his phone had not been sent by Ms B. The objective evidence plainly supported findings that Ms B had sent them. No other finding was reasonably available.

The appellant’s submissions focussed principally on a series of text messages passing between the appellant and Ms B on 13 April 2020 (13 April messages), four days before the act forming the subject of the charge, and on two further messages sent a short time after the acts.

In the extracts that follow I have replaced some letters with asterisks. With that modification, the exchange of messages on 13 April was as follows: Appellant: Have I told you how much anal sex we’re going to have yet? Hahahaha Ms B: yes, you have implied it So nervous about my first time But I know you will be gentle Appellant: I’m so excited and even more excited that you’re nervous. We’re going to have such dirty sex. I love it. Ms B: We are but it’s going to be hot, raw and full of passion Appellant: More than you know The fact we’re going to have so few limits and push one another is even hotter Like just amazing Ms B: It’s nervous and exciting and I wanna see where it goes Appellant: I can’t wait I have such kinky thoughts of what I’d like to do to you and with you Ms B: Are you going to expand Or will I have to wait and see Appellant: Not yet, I want to just do them Ms B: Hehe oh who is the tease now? Appellant: And see you a bit scared or nervous and then just do it because you trust me and I trust you You and I will make porn seem boring and tame. You’ll be my personal s***tty [Name redacted] Ms B: Oh probably yes Yes I will be I want to be yours so bad Appellant: and you’re essentially game for anything. It’s so kinky and hot and emotionally thrilling Ms B: It takes a lot of emotion from me because I feel so much I can’t describe it. Particularly around you. Like when you touch my breasts or kiss me I feel my heart race uncontrollable urge to be yours Appellant: I haven’t wanted someone physically as much as I want you before. It’s downright scary Ms B: It is scary but at same time exciting. Like that look u gave me in the car to get some wine Appellant: Yeah, it’s erotic Ms B: It’s just how I feel around you Appellant I have some really dirty thoughts about you haha You have no idea Ms B: Or spicy Appellant: They get raunchy Ms B: Oh I bet. One day you will enlighten me on your thoughts? Appellant: I’d be scared to. I dream up some SUPER kinky shit with you Ms B: I’m intrigued haha Appellant: I’ve had so many fantasies Everything from you f***ing me to bondage threesomes to consensual non-consensual to latex and rubber to a sex swing to anal EVERYTHING to to to to Ms B: wowa I hope they were all good dreams for you Appellant: Always are The craziest thing I feel like they could all happen haha Ms B Maybe… I think about you all the time too Appellant: You have dirty thoughts? Awful things you dream I do to you? Ms B: Maybe I have had a few. I don’t often dream. But you have been there a few times. One of them Ooft. Felt like it could have been rea [sic] Appellant: Yeah? Pray tell? Ms B: Oh yea it was beautiful and pure and raw. We had been to [an event] can’t remember what it was. You had won an [award]. We made our way back home. I was semi tired. You placed me on the bed. I think to put me into pjs and then we started to kiss and hehe we did some kinky stuff. I can tell you more of it urgh I’m blushing Appellant: Please tell me more Ms B: It was such a great dream. I was completely yours. Okayyy Appellant: Plllleeeeaaaassse Ms B: You lay me down and tied me up. You choked me and teased my body. You f***ed me so well. In all positions. I was so nervous. It was my first time in my dream for anal and u spun me round and tied me down that way and I was so scared but you were there. There was pain, love and rawness. I woke up Idk what all that means Appellant: That’s f***ing hot Wow. I am so hard now haha Ms B: It was I wasn’t going to tell you at all Appellant: Did you cry a bit Ms B: I did oh I’m so embarrassed Appellant: F*** that’s even hotter Ms B: But you were there Urgh I’m so embarrassed Appellant: God damn. That’s so hot Why? I’d LOVE that Though you’d win more awards haha Ms B: I really don’t tell people my dreams Lolol Appellant: And I’d c*** in your mouth after But wow. I love that we have such similar fantasies. Ms B: haha I woke up Appellant: You came and it woke you up? Haha I wanna f*** you in your sleep Ms B: I guess that’s kinda what happened Appellant: LOLOL I had anal bondage with oral finish with you in your sleep? My gawd. I wanna see you in a ball gown With a corset under Ms B: I would love to do that get completely all dressed up like that for you Appellant: Stockings too Ms B: We can dance, drink then spend all night and morning together Appellant: And already wearing some bondage stuff Oh you’d be sleeping all tied up Ms B: You like suspenders with stockings? I can image I would be sleeping tied up lolol Appellant: I’d definitely prefer them Ms B: Ok good to know Appellant: You’d be getting analized and skullf***ed OVER AND OVER AND OVER AND OVER Ms B: Oh now you‘re turning me on Appellant: You’ve be covered in your own spit and juices and c** Take it from one hole and then ram you in another until you can’t take it any And then put it back in your throat and watch it drop from your mouth as you gag On my c** Ms B: Oh please my daddy Appellant: F***. The fact you’d let me go that far is so hooooottttt I love that you call me daddy Ms B: My heart is beating so fast atm Appellant: And you weren’t even scared of pegging me either Ms B: I’m scared. But I want to please you so. Appellant: I’m scared too. I’ve never known anyone like you [Name redacted] And in any other time in my life we’d already be living together like idiots LOL Ms B: I love you. If that’s what you want I’m willing to try. Some things I won’t do but yeah and that I can try Lol True Appellant: What wouldn’t you do? … Ms B: You said threesome in your dreams. I’m straight so threesome with a woman I couldn’t do that

In the hours following the charged act, Ms B sent to the appellant an unsolicited text message as follows (17 April message): Goodnight my Texas Daddy [heart emoji] I'm in a bit of pain but I think it'll settle. Hope you had a beautiful birthday. I love you so xx

On 19 April 2020, Ms B sent a further text message as follows: Walked to the lack [sic] with Mr H! Hope your hangover is not too bad. Looking forward to seeing you next week [smiley face emoji]

There was then this exchange on 2 May 2020, two weeks after the charged act: Appellant: I need to get hammered I’m depressed Ms B: I want to get drunk too well I was drunk last night LOL … Appellant: I need to get bad drunk and tie you up gag you and f*** you in your bed… Ms B: Yessss I wish my parents would do a trip to [redacted] LOL

In her oral evidence, Ms B denied, without qualification, that she had written or sent the 13 April messages. She was emphatic in her denials, repeated over and again in respect of each of the messages. She did not change her account and so did not give evidence explaining those messages or providing any context to them.

The jury ought to have concluded that Ms B had not been truthful in that aspect of her evidence, there being no other explanation put forward by the Crown for the presence of the messages on the appellant’s phone and the absence of the messages on Ms B’s phone.

In my view, that is sufficient to preclude a finding that Ms B’s account could be accepted so as to support a finding of guilt beyond reasonable doubt. That is principally because she had been shown to have given untrue evidence concerning the deletion of the text messages and, by the conclusion of the trial, no explanation had been given for the act of deleting them. Any assessment of her reliability as a witness more generally must accommodate that circumstance. If I am wrong about that, the finding was precluded by the cumulative effect of the evidence considered in conjunction with what follows.

The message following the charged act was not deleted. It was unsolicited in the sense that it was not responsive to any message sent by the appellant to Ms B following the charged act.

Three observations may be made.

First, Ms B denied that the 13 April messages conveyed that she was open to having anal sex with the appellant. That denial cannot be reconciled against the language used. In response to the most ribald suggestion of anal sex and “skullf*ng”, Ms B had responded that she was turned on. In earlier messages, she expressed curiosity and nervousness, accompanied by an expression of trust. Again, it must be emphasised that an expression of willingness to participate in a sexual act does not equate to an expression of irrevocable consent. That is not the focus of the Court’s attention. However, the Crown sought to describe the messages as evidencing a domineering and controlling relationship characterised by threatened violence and in which Ms B was trying to be “placatory”. It was further submitted that the messages themselves proved the domineering character of the relationship. That submission cannot be sustained by reference to the language of the messages.

In any event, as discussed below, Ms B denied on oath that she had sent the 13 April messages relating to anticipated anal sex at all. A submission that those messages were sent with a placatory motive was accordingly not open.

Second, the language employed by both the appellant and Ms B in the 13 April messages lends factual support to the appellant’s version of events specifically in relation to the charged act. They disclose an aspect of the relationship in which both participants placed the appellant in a “Daddy” role, and each expressed an eagerness to engage in bondage practices, that is, a play-acting scenario of non-consent. The appellant’s evidence that Ms B had said “yes Daddy” coheres with the fantasising and planning revealed in the messages exchanged four days prior. In that respect his account of events resonates strongly with objective and verifiable communications emanating from Ms B herself. The circumstance that Ms B did not object to being restrained by the appellant’s belt also coheres with the messages and the appellant’s version of events. In addition, Ms B’s account that she had asked “What do you mean?” when the appellant asked if she trusted him is somewhat at odds with the language of her text messages in which she expressly discussed placing trust in the appellant in the lead up to having planned anal sex for the first time.

Third, I have concluded that Ms B’s evidence that she had neither written nor sent the 13 April messages could not be accepted on any reasonable view of the evidence, considered as a whole. The only available finding was that she had lied in that part of her evidence and that the lie remained unexplained at the conclusion of the trial. The circumstance that Ms B had lied about deleting those messages (and the absence of an explanation for the lie) was relevant in the assessment of the appellant’s account both because it left the messages wholly unexplained and it because of the criticality of the subject matter to which the lie related.

Considered together, those features of the evidence ought to have led the jury to conclude that the version of events the appellant had put forward on oath might be true.

It matters not that Ms B gave a directly contradictory account. The doubt entertained by this Court is not capable of being assuaged by the advantage the jury may have had in seeing the recordings of the witness testimony. Expressed another way, the doubt arising from the objective evidence could not be displaced by a positive impression of the complainant as a witness.

In accordance with the principles stated in De Silva, the conclusion that the appellant’s account might be true was sufficient to require that he be acquitted.

The Crown resisted that conclusion principally on the factual basis that Ms B had not deleted all of the messages that were potentially harmful to the Crown’s case and on the additional basis that Ms B had put forward an explanation for sending the messages.

The circumstance that Ms B had not deleted all of the messages does not assist the Crown in respect of this ground of appeal. The damage to Ms B’s credit arose not by virtue of the messages having been deleted, but by reason of her emphatic denials on oath that she had ever written or deleted them. The lie went unexplained. In and of itself, that aspect of Ms B’s evidence so affected her credibility that a jury, acting reasonably, ought to have concluded that the Crown had failed to prove its case beyond reasonable doubt. Adopting the language of M v The Queen, I consider that the evidence contains discrepancies, displays inadequacies and lacks probative value in such a way as to lead to a conclusion that (even making full allowance for the advantages enjoyed by the jury) there is a significant possibly that an innocent person has been convicted. I am reinforced in that view by the evidence of Ms B’s messages following the charged acts.

Ms B did not deny sending the messages on 17 April, hours after the charged acts, or the messages in the two days and two weeks following. From an evidentiary perspective, those messages required a coherent and compelling explanation in the presentation of the Crown case. That is because, interpreted objectively, they not only convey an enthusiasm for the relationship to continue, but a willingness to engage in further restrictive sexual acts with the appellant. In addition, Ms B had alleged that the appellant had threatened the life of her parents, and yet two weeks following that alleged threat and the alleged sexual assault, she expressed a desire for her parents to leave the house so that the appellant could have sex with her while she was tied up and gagged. Nothing in the language of that message was “placatory”.

The evidence that the relationship was characterised by threatened violence or control was insufficient both in its nature and extent to displace the conclusion that the appellant’s account might be true. In addition, the evidence of violence or control as an explanation for the message was of insufficient probative value to support the verdict to the requisite standard.

I have not overlooked that the Crown called expert evidence from a specialist in forensic and sexual health medicine. The expert explained that when a person experiences sexual or interpersonal violence, they may become overrun with fear and involuntarily freeze. That aspect of the expert evidence is of no assistance in resolving the particular issue before this Court. The issues on the appeal do not turn on questions concerning Ms B “freezing” in the course of the charged act. On her own account, Ms B had vocalised her lack of consent in any event. The sending of the text messages to which I have referred is not conduct akin to freezing.

There was also evidence that victims of sexual assault may engage in conduct that does not outwardly disclose distress or trauma following the assault. It is of course necessary to warn against stereotypical responses to “atypical” behaviour according to stereotypical assumptions of a complainant when assessing the reliability of their account. But that does not mean that conduct of a complainant may be disregarded in a case where the complainant has used words that are unequivocal in their meaning and, in that meaning, contradict the complainant’s own testimony. The contradiction may introduce reasonable doubt unless explained by evidence of sufficient force to address and outweigh the contradictory effect.

As the Crown acknowledged, the expert evidence in the present case was general in nature and did not address the facts of the case. No opinion was expressed as to how Ms B’s text messages, sent soon after the charged acts, could be reconciled with the allegation that she had been sexually assaulted and that her life and the life of her parents and pet had been threatened. The facts and circumstances were such that a greater degree of specificity was required in the expert and other evidence before the exculpatory force of the text messages could be ignored.

It follows that the appellant’s conviction of the charge in count 3 was unreasonable. The conviction should be substituted with an order that the appellant be acquitted of that charge.

On the basis of that evidence, it was open to a jury to conclude that it was reasonably possible that Ms B had consented to that act, or that the appellant believed that she had consented. So much appears to have been accepted by the appellant at the sentencing stage: DPP v McGary (No 13) [2025] ACTSC 557 at [42].

Ms B’s version of events in connection with the physical act constituting count 3 (penile penetration) was also variable. However, considering that aspect of her evidence as a whole, it may fairly be interpreted to mean that she had uttered an emphatic “No” just prior to the appellant committing the relevant act. That is supported in part by the account given in her EICI: Q206: Did you say anything else to him? A: I said, “No.” Like – like, after that I said, “No, no, I” – and I was going to say “I don’t want to” and then he just put his penis in my anus.

Again, putting aside what I have said in connection with ground (b), and assuming that I am wrong in connection with that ground, that evidence supplied a rational foundation for the verdict of acquittal in respect of count 2 and the verdict of guilt in respect of count 3. Between the two allegations, there was differing evidence bearing not only on the question of Ms B’s consent but on the appellant’s own state of mind.

As explained in Williams v DPP at [11(d)]: […] if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed its functions as required, that conclusion will generally be accepted. It is not the role of the appellate court to substitute its opinion of the facts for one which was open to the jury. That principle accommodates the necessity for the jury to consider the counts separately and apply the standard of proof beyond reasonable doubt. It also extends to the possibility that the jury reached a merciful verdict as a result of applying “their innate sense of fairness and justice in place of the strict principles of law”.

Accordingly, if I am incorrect in respect of other grounds warranting the setting aside of the conviction, I would have concluded that count 3 was not unreasonable on the alternate ground that it was inconsistent with the appellant’s acquittal on count 2.

The appellant’s final ground of appeal can be shortly disposed of. The allegation was that the jury had been provided with redacted documents in circumstances where the redactions were capable of being manipulated and removed. That ground rose no higher than a supposition that a jury would be minded to (and did in fact) manipulate the documents so as to access the concealed information. It has no proper basis in evidence and should be rejected.