McMahon v R

Court of Criminal Appeal (NSW)|2022-02-28|Before: Harrison J, Wright J, Fagan J

Judgment

HARRISON J: Patrick McMahon seeks leave to appeal against his conviction by a jury on 26 February 2021 on one count of penile-vaginal sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 on the grounds that the verdict was unreasonable because it was inconsistent with his acquittal on two related counts and because it cannot be supported having regard to the evidence. Mr McMahon was sentenced to a term of imprisonment for 3 years with a non-parole period of 1 year and 6 months expiring on 16 December 2022. Mr McMahon does not challenge his sentence.
Mr McMahon stood trial before his Honour Judge King SC and a jury in February 2021 on an indictment alleging three counts of sexual intercourse without consent, all of which were alleged to have occurred on the same occasion. These counts alleged respectively non-consensual digital-vaginal penetration, cunnilingus and penile-vaginal intercourse. Mr McMahon was found not guilty on the first two counts but guilty on the third. In a previous trial before Judge Whitford SC in June 2020, the jury were unable to reach a verdict on all but one count of attempted penile-anal intercourse on which a verdict of not guilty was returned.

The Crown case

In January 2015, the complainant was seeking rental accommodation in Sydney. She used a website and found a property where Mr McMahon was the head lessee. The premises were shared at that time by Mr McMahon, his son and two other female housemates. One housemate was moving out and the complainant was to take her room.
The complainant moved into the premises around 17 or 18 January 2015. During the week leading up to Australia Day 2015, the complainant had sporadic interactions with Mr McMahon. There was nothing to indicate or suggest that an emotional or sexual relationship between the two parties was developing.
On 26 January 2015, the complainant's plans for the evening with friends did not eventuate and she remained at the premises. Mr McMahon suggested they drink from a rum bottle the complainant had brought to the premises. The bottle was approximately half full. Mr McMahon and the complainant began drinking but they did not take note of the amount that was drunk. The complainant started to feel intoxicated and decided to go to bed. However, Mr McMahon suggested that she should stay and watch television with him, and she agreed. They sat together on a couch to do so.
The complainant became tired and lay on the couch, eventually falling asleep. On the Crown case, she was woken by sharp pain in her vagina which the Crown alleged was digital penetration by Mr McMahon. This formed the basis of count 1. Around the same time, the complainant says Mr McMahon was performing cunnilingus. This formed the basis of count 2. The complainant allegedly said, "No, stop" and moved her body away from Mr McMahon but he continued with his acts. The complainant then began lapsing in and out of consciousness with her next memory being a sharp pain near her anus. This was the act for which the earlier jury acquitted Mr McMahon. The complainant lost consciousness again. She next remembered waking to find Mr McMahon performing penile vaginal intercourse, which she described as "going hard and pretty rough".
The complainant again regained consciousness to find the sexual acts had stopped and her clothes, which had been moved during the course of the sexual acts, were again back roughly in the place they were before the acts began but her underwear was partially pulled down. The complainant went to the bathroom and noticed she had vaginal bleeding which she brought to the attention of Mr McMahon. She then went to bed.
The Crown relied on complaint evidence including a telephone call during the early hours of 27 January 2015 to an ex-boyfriend to whom the complainant said she had been "raped" by her "landlord". It was alleged she sent a text message to a friend asking for help to move. She spoke to this same woman the next day in person, telling her she had been sexually assaulted. Also on 27 January 2015, the complainant told another friend of the alleged sexual assault. This friend contacted police and called for an ambulance.
Police went with the complainant in the ambulance and a version was taken of what occurred by Sergeant Scott. That version included drinking and falling asleep but only included the allegations in count 3 in the notes the officer made.
The complainant was seen by Dr Rosemary Isaacs on 27 January 2015. She recorded a history and performed an examination. The history included allegations of attempted anal sex, digital and penile-vaginal penetration and cunnilingus. The Crown alleged the findings of an abrasion in the labia minora, bruising of the hymen and a bruise on the cervix supported the complainant's account of "rough" sexual acts.
Mr McMahon participated in an ERISP conducted on 27 January 2015. He maintained that he and the complainant had engaged in consensual sexual acts including digital penetration, cunnilingus and penile-vaginal intercourse. The complainant did not seek to pursue the matter at that time and the investigation was not pursued. Mr McMahon was not charged.
However, police recommenced the investigation in 2018 when the complainant again approached them. A pretext call was made on 17 May 2019, during which Mr McMahon was confronted by the complainant about the allegations. Mr McMahon denied wrongdoing.
The Crown left for the jury's consideration a lack of consent on two bases. First, that because the complainant was unconscious, she had no opportunity to consent and did not consent. Secondly, that there were occasions when the complainant would regain consciousness and protest with the word "no". The Crown relied upon this to assert that Mr McMahon could not have held a reasonable basis for believing that the complainant was consenting.

Applicant's submissions - summary

Although it will be necessary to return to Mr McMahon's submissions in more detail, it is convenient to indicate the thrust of what is contended by him in this Court. Mr McMahon maintains that there is an irreconcilable and inexplicable inconsistency between his acquittal on counts 1 and 2 and his conviction on count 3. That is said to follow from the fact that the jury must have entertained a reasonable doubt about the complainant's credibility on the first two counts but nevertheless accepted her as truthful with respect to count 3.
The Crown case on counts 1 and 2 had been that the complainant had no capacity to give consent due to her state of unconsciousness or that there was no basis upon which Mr McMahon could have concluded that her consent had been given. Properly understood, the complainant's evidence was that she was asleep and "woke" to a sexual assault that caused her pain and injuries. Her evidence was that she said "no" and "stop" but that Mr McMahon "went harder". Mr McMahon's submitted that his acquittal on these counts must have been the result of the jury entertaining a doubt about the complainant's evidence on those counts.
Moreover, Mr McMahon submitted that his conviction on count 3 cannot stand where the complainant's evidence was that she "woke" to find a further sexual act being performed. Her evidence was that the act of penile vaginal intercourse was "painful because of the injuries from before", a reference to the facts supporting counts 1 and 2. However, those "injuries" were the subject of the two counts on which Mr McMahon had been acquitted. They could not therefore, on Mr McMahon's submission, be part of the jury's reasoning as to guilt on count 3.
In Mr McMahon's submission, there is no explanation for the acquittals other than a doubt over the complainant's credibility which should have materially affected the jury's reasoning over count 3. He referred to TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128], [130]: "[128] … In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis… [130] Before Jones dictates that an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. If such an explanation can be found, then Jones has no application. Finding such an explanation is not always easy. Determining whether a proposed explanation is a rational one, other than by reason of the complainant's credibility, can be even more difficult. The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility."
Mr McMahon submitted that the inconsistent verdicts do not satisfy the tests of logic and reasonableness: see MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 366 (quoting from R v Stone (Court of Criminal Appeal (UK), Devlin J, 13 December 1954, unreported): "[The appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
The jury were not required in the present case to consider whether the acts alleged in counts 1 to 3 occurred. Their focus, as directed by the trial judge and as submitted by the Crown, was solely on the issue of whether the Crown could establish that the acts occurred without consent. That required an analysis of the complainant's evidence that she was incapable of giving consent to each act or had made it clear by word or act that she did not consent.
On the Crown case, counts 1 and 2 occurred in circumstances where the complainant could not give consent or denied consent and that one or more of the injuries that she sustained occurred at this time. The Crown referred to these injuries in addressing the jury as follows: "This combination of injuries, very unusual, never seen by Dr Isaacs in a non-sexual assault setting, unusual force involved, a very tender abrasion. This is all relevant to you I submit in assessing if these acts were consensual. Especially in the context of the accused categorically saying to police, this was not rough sex. This was not nailing her. I submit the medical evidence supports (the complainant's) account of what occurred in terms of forceful sex. And that you should find that the injuries, bleeding and pain involved make it very unlikely that it was consensual."
Despite this submission, the jury acquitted Mr McMahon of counts 1 and 2 where it was clearly the complainant's evidence that some injury occurred during these asserted acts and where the medical evidence could not categorically attribute any one injury to any discrete act. Further, Mr McMahon's physical attributes were considered by Dr Isaacs who was "confident" in her estimation that his penis would reach the cervix. In Mr McMahon's submission, the presence of injuries could not equate to a lack of consent where there was admitted evidence that established penile-vaginal intercourse did occur.
Mr McMahon emphasised that the Crown case was not one where the complainant misunderstood or misinterpreted what had happened in respect of counts 1 and 2, thereby raising a doubt about the alleged acts, but was more certain as to count 3, thereby justifying the different verdicts. An example of an acquittal on such terms, or on doubtful evidence, is readily to be found with the jury verdict on the attempted sexual intercourse alleging penile-anal intercourse. The complainant's evidence about that could be seen as uncertain as to the detail of the act and her utterances of concerns of pregnancy being an unusual response to it. When combined with the denial, in strong terms, by Mr McMahon when confronted in the pretext call, a jury may well have entertained doubts as to this count and acquitted him without thereby necessitating a doubt as to the complainant's credibility on the remaining counts.
In Mr McMahon's submission, even giving due weight to the jury's capacity to see and hear the complainant's evidence, this matter is similar to that in Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 at 453, where the High Court held there was "nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable" in relation to the conviction as opposed to the acquittals. In Mr McMahon's submission, the lack of acceptance of the complainant's account for counts 1 and 2 should have raised a reasonable doubt as to count 3.
Mr McMahon submitted further that the Court would find the verdict unreasonable when assessing all of the evidence. The Court is permitted to make an assessment of whether it was open to the jury to find Mr McMahon guilty beyond reasonable doubt: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; M v The Queen (1994) 181 CLR 487; [1994] HCA 63.
In M v The Queen, the High Court said at 493: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
In Mr McMahon's submission, the jury's capacity to see and hear the evidence does not account for how they could arrive at the guilty verdict for count 3. Even accepting that there are cases where "hesitation or a change in tone, not reflected in the transcript … provided a sound basis for discrimination" (see Long (a pseudonym) v R [2021] NSWCCA 212 at [17]) between verdicts, this case could not have been one of those given that the issue was consent.
Mr McMahon maintained that there was no other evidence led in the trial that would permit a jury to reason as to his guilt. The sexual acts were admitted, and the only issue was that of consent. Findings on examination by Dr Isaacs of bruising to the hymen and the cervix or an abrasion on the labia minora did not equate to a lack of consent. So much was accepted by Dr Isaacs.
Mr McMahon made no admissions against interest, nor did he concede anything in the pretext call or in cross-examination that could account for the verdict. His account provided in the ERISP, in the pretext call and at trial, included matters that showed his clear recollections of what was said at various times during the evening of the alleged offences. This included slang for urinating (break the seal) used by the complainant, the conversation regarding his use of a condom (the complainant not wanting to become pregnant) and matters of the complainant's immediate past domestic violence. These, and his strong denials of wrongdoing even when he was unaware he was being recorded, support his credibility as a witness.
A further consideration of the lack of credibility of the complainant's account arose from the previous assertion of attempted anal intercourse, for which Mr McMahon was acquitted. While the acquittal was not made known, the direction to the jury included this passage: "If you find that (the complainant's) evidence of this alleged conduct adversely affects her credibility, and I'm not suggesting that it does or that it does not, as that is a matter entirely for you, you can use that assessment of her credibility in assessing whether or not you accept her evidence in respect of the three counts on the indictment. But unless you find that her evidence in that respect adversely affects her credibility, you cannot use that evidence in any other way as the Crown accepts that it cannot prove any offence in respect of that alleged conduct."
The evidence about the complainant's consumption of alcohol at around the time of the allegations on the night in question, undermined the Crown case that the volume, type and speed of alcohol consumed would be such as to render the complainant unconscious. There was no evidence of any other drug administered. Mr McMahon submitted that it was therefore inexplicable that the complainant could have, even on her own account, been rendered so affected as to fall into and out of consciousness. This considerably undermined the Crown case on the issue of consent.
Mr McMahon submitted in these circumstances that there were a significant number of doubts that a properly instructed jury could have entertained about the Crown case, based primarily as it was on accepting her account. In Mr McMahon's submission, a review of the evidence leads to a reasonable doubt that the conviction can stand. The manner in which the trial was conducted, and in particular the lack of differing facts and circumstances alleged by the Crown among the sexual acts, leads to the conclusion that there was no logical or reasonable basis for the conviction.

The Crown's submissions

The Crown emphasised that an unusual feature of the case is that while the complainant made immediate complaint, she did not provide a formal statement in January 2015. Her only statement was that recorded in a police notebook. It was not until December 2018 that she resolved to pursue her complaint and provide a formal statement. Her evidence was given in the first trial on 18 June 2020 and was replayed at the second trial in accordance with s 306I of the Criminal Procedure Act 1986, approximately five and a half years after the incident itself. Having regard to that passage of time, the Crown sought to emphasise the several versions given by the complainant in the chronological sequence in which they occurred.
The first complaint was made to her ex-boyfriend Andrew Lee who she contacted by telephone on the night of the incident at around 2am. His evidence was to the effect that she told him in an hysterical tone that she had been "attacked" by her landlord. She was crying and her voice seemed to indicate to him that she was in pain, panicked and distressed. He said it was very out of character for her.
The next complaint was made to her friend and work colleague Evelyn Viengkhou, who picked the complainant up the next morning to give her a lift to work. Ms Viengkhou saw that "she was crying a fair bit and a few minutes later she said, 'I was raped last night'". The complainant wanted to see a doctor and they went to two places for that purpose. However, the complainant did not want to pay to do so.
Later that morning, a complaint was made over the telephone to another friend, Jessica Heng, while the complainant was at work. Ms Heng's evidence was that she sensed something was wrong, and she kept pushing the complainant who eventually said words to the effect, "I was raped by my landlord last night." The complainant told her "that she feels pain down there" but Ms Heng did not ask her anything further. Ms Heng contacted the police and ambulance (against the wishes of the complainant) and met her at the hospital.
The first police officer to attend on the complainant was Sergeant Amanda Scott who spoke to her near her place of work at about 11:45am on 27 January 2015. Sergeant Scott arrived before the ambulance and spoke with the complainant about the incident, including while travelling with her in the ambulance to Royal Prince Alfred Hospital. She made a note which included the following: "Version of victim [the complainant]. Stated she had been raped by her landlord Pat, aged in his 40s. … On the night of [26 January 2015], the victim and POI drank a few glasses of Zacapa rum, just small amount with ice in each cup. The victim then fell asleep on the sofa in lounge room common area where she and the POI had been drinking. Victim woke up feeling pain, POI was having sex with her and she said no and stop a few times but he continued having vaginal sex. After sex she felt pain in vaginal area and she fell asleep again. Then she woke and the POI was sitting next to her, touching her arm. He said, 'You okay', she said, 'No, I'm in pain'. The victim then went to the bathroom and noticed she was bleeding from vagina. She then went to her bedroom. Did not shower. …"
Evidence was adduced through the officer-in-charge, Detective Vanessa Cook, of notes taken by the ambulance officers which recorded that "she had consumed small amount of ethel" and later on "she awoke with her male landlord having sex with her at approximately 22.30 …" She told him to stop but he kept penetrating her. The notes also recorded that the complainant said she was bleeding, because of the sexual assault, which she described as spotting.
Dr Rosemary Isaacs completed the examination of the complainant at RPA on 27 January 2015, including the SAIK, and recorded a history from her which Dr Isaacs related in evidence as follows: "On Monday 26 January, she was having a few drinks with another person in the living room of the house where she lived. She was drinking Zacapa rum, a male was pouring the drinks, she fell asleep on the sofa. In response to my question, she told me she was wearing a summer dress with bra and underpants. She woke up and was aware that she was on the sofa with him 'inside of her.' I clarified that this meant his penis in her vagina. Her dress was up, she said, 'no '' and 'stop' and again, 'no' and 'stop'. She may then have fallen asleep again. She described other memories which I list here in no particular order. She woke up and then lost conscious awareness at least once and likely several times. She woke with him sitting beside her, her underpants were half on, her bra was unclipped, when she awoke she was aware that she was in pain. One time when she awoke he was rubbing her arms, saying 'are you okay'. She remembered that at one stage she felt pain in her bottom, specifically in her anus, she screamed and it stopped. On one occasion when she woke up, he had her legs lifted, that was when he was at his roughest, he was 'pounding'. I clarified that this referred to prolonged penile vaginal thrusting on penetration. And I understood this to mean that the thrusting was forceful or painful. He 'licked' her 'down there.' … I understood this to refer to cunnilingus meaning that the male was licking inside her genitals. He put a finger or fingers in her vagina, his body hit against her, I understood this to mean that contact between his body and hers was forceful. She went to the toilet and noted that she was bleeding from her genital region. She did not notice or recognise any ejaculate on her genitals when she was at the toilet. She went up to bed because she knew that another girl was at home by then and in the bedroom next to her own. She went to work this morning to get away from him. She did not shower as his bedroom was next to the shower and bath."
The matter was referred to city detectives and Detective Timothy Pilon became the officer in charge. He attended RPA. At that stage, the complainant was upset and did not feel comfortable talking to him, so he arranged for her to speak with female police officers.
Detective Vanessa Cook was one of the female detectives who spoke with the complainant when she finished at RPA, and she took a notebook statement from the complainant at Day Street Police Station at 3.47pm on 27 January 2015. The statement was taken without a jurat but was signed by the complainant. This statement was ultimately tendered in re-examination. In relation to the description of the sexual intercourse the complainant reported that she woke up on the couch "with Pat inside me". She said "no, just stop". She said it was really rough and "really hurt". Mr McMahon "went down" on her. Her dress was pulled up and her bra was undone. When she woke up, her dress was pulled down, her underpants were half up and completely off. Her bra remained undone. She went to the bathroom and was bleeding.
When Detective Cook tried to obtain a formal statement, the complainant declined because "she didn't want to go through with it at that stage. It was just a bit much for her. The stress." On 1 March 2015, the complainant sent Detective Cook an email declining to proceed with the statement which she had taken. This was passed on to Detective Pilon and the case was closed.
Towards the end of 2018, the complainant contacted Detective Cook to have a discussion with her about possibly reopening the case and providing a statement. As a result of that discussion, the complainant provided a formal statement dated 3 December 2018. Detective Cook became the officer-in-charge of the investigation from that point. Parts of this statement were adduced in cross-examination of Detective Cook, including the complainant's recollection of waking up to find Mr McMahon licking her vagina and inserting his fingers. He tried to penetrate her anus with his penis but could not do so. He then put his penis in her vagina.
Detective Cook also gave evidence of a further statement made by the complainant on 23 May 2019, following the pretext phone call after which the complainant indicated some information had become clearer and made a further statement. In that statement the complainant indicated that the first incident was the fingers and licking of the vagina. She next described Mr McMahon poking her anus with his penis. The complainant had said, "no, I don't want to get pregnant" and that she passed out again after the poking of her anus. The complainant then described the third time she woke up when Mr McMahon had his penis in her vagina. The fourth time she woke, she got up and Mr McMahon was sitting on the end of the left side of the sofa. Neither of them said anything. She went back to her bedroom and Mr McMahon said, "I am sorry".
In re-examination, Detective Cook said that on 23 May 2019 the complainant had gone through the notebook statement of 27 January 2015 and had acknowledged that it was a correct record of their conversation at the time. This had been addressed by the complainant in the 23 May 2019 statement as follows: "When I spoke to Detective Cook in January 2015, I remember telling her what it happened, and I remember her making notes about what I said. Today Detective Cook showed me some handwritten notes dated 27 January 2015, pages 61 to 69. This document was titled, 'Annexure E'. I read through these notes and recall this information to be what I had told Detective Cook on 27 January 2015. This information is all true and correct; however, some of the events are in the incorrect order. I also didn't recall correctly what I did during the day on 26 January 2015 before the incident. The order in which the offences are written in the notes are [sic] incorrect. Where Pat was fingering me happened first, and then he tried to put it in my anus. The rest of the notes are consistent with my statement, and I believe these notes to be a true record of what I told Detective Cook on the day, and a true account of what happened. I sign this document."

The complainant's evidence at trial

The main part of the complainant's evidence was given during the first trial on 18 June 2020. In relation to the sexual intercourse, she said that she lay down on the sofa and fell asleep. The next thing she remembered was waking up to "a sharp pain in [her] private region", meaning her vagina. She said: "At that point my underwear was off and my bra had been undone and - and I could feel someone licking me down there as well."
The sharp pain inside her vagina "felt like fingernails and it was prodding inside…he was fingering me but in a rough manner". She said that "it was painful like it wasn't …to make me feel pleasurable…it was almost as if he was just, yeah, really using force". After waking and feeling those things the complainant "told him, 'No' and to stop but he didn't and I tried to squirm upwards but then he ended up just going harder and so I stopped squirming". She was wriggling upwards away from him. She did not do anything else: "I was a bit too scared to do anything else". After that she passed out again. During that incident, she had been on her back and Mr McMahon had spread her legs up on the sofa.
The next time the complainant woke there was a sharp pain in the region of her anus. She said: "it felt like my anus was being stretched. It felt like he was using his penis to try and penetrate my anus." … [She] "told him, 'No,' and I said that I didn't want to get pregnant which I know that you don't get pregnant through that kind of sexual interaction but because when I asked him to stop earlier it didn't work I just - I don't know what my mind was thinking but that's what came out of my mouth. I was trying to get him to stop."
After she spoke to him, "he didn't, he, like the, the sharp pain stopped" and "I passed out again".
The complainant's next memory was that "he had already penetrated my vagina when I woke up". She said that the penetration would have been "his penis because I could feel his body on top of mine and the location of the penis is - was relevant". The complainant said that it felt sore when she woke up "because there were still the injuries from earlier". She said, "he was going hard and pretty rough" in the way he was penetrating her vagina. She said that it felt "painful because of the injuries from before but I didn't say anything because I already felt defeated at that point and I was scared." The complainant said that she did not want his penis inside her.
The complainant said that her dress was still on, but it had been lifted, her underwear was still completely off her body, her bra was undone, and Mr McMahon was completely naked. She noticed that the door that led to the stairs was also closed. After a while she just passed out again.
The complainant's next memory was of waking up to find Mr McMahon fully clothed and back sitting in his original position on his side of the sofa. Her bra was still undone, her dress was pulled down, but her underwear was only half on, so that her bottom was touching the sofa. She could not recall any conversation before she left the living room to go upstairs to the bathroom. When she looked at Mr McMahon: "he looked as if nothing had happened and I got up and knew that my underwear wasn't on properly and I went up, I went to the toilet and I was going up the stairs and there was pain with every step that I was taking and I was still a bit tipsy as well."
The complainant noticed that when she urinated it was "a bit uncomfortable, it was just sore and inflamed". She noticed blood on the toilet paper. She was not menstruating at that time, nor did she have any injuries or soreness to her vagina prior to that evening.

Evidence concerning "blackouts"

A central part of the defence case in the second trial was directed at the possibility that the complainant may have suffered a memory blackout, rather than a loss of consciousness, which explained her lack of recall of the incident. This was apparently derived from what was recorded in her notebook statement that "when I do drink a lot I can get blackout periods". The issue had not been explored in cross-examination in the first trial. Mr McMahon sought leave further to cross-examine the complainant on the issue based upon something she had said in the 23 May 2019 statement. The application was refused.
The complainant's evidence about her level of intoxication was that when she finished drinking, she was "feeling hazy and dizzy and heavy, yeah, just not sober anymore". She also said that while she was upstairs, she felt like she was getting a bit drunk, so she came back down the stairs and told Mr McMahon that she was going to bed and said goodnight. However, she then agreed to watch TV with him and sat down on the sofa and again began feeling sleepy.
The complainant's version of the sexual intercourse included her falling asleep and waking up at various stages. In the pretext phone call, she asserted at a number of points that she had been "unconscious" during the sexual intercourse (which Mr McMahon rejected), although this was not the term she used in her evidence-in-chief. She referred instead either to "sleep" or "passing out". In cross-examination it was put to her: "Q And that's because you were not unconscious? A No, I was unconscious. I specifically remember lying down closing my eyes because I was getting really sleepy and heavy."
The complainant appeared to use the term "unconscious" interchangeably with sleep.
The thrust of the cross-examination was that the complainant had not drunk sufficient alcohol to render her unconscious, that she had only told Mr McMahon that she was "buzzing" (indicating that she was only moderately affected by alcohol) and that she was awake and encouraging sex acts with him. In cross-examination the complainant agreed that there were certain things she had forgotten from five years ago.
Despite the preceding analysis, it is helpful to record in terms what the complainant said in her evidence-in-chief concerning consent: "Q Just before the break you were giving evidence about putting your head on the armrest of that couch in the living room? A Yeah. Q And then what happened after that? A I feel asleep. Q What is the next thing you remember after falling asleep? A I woke up because there was a sharp pain in my private region. Q When you say, 'Private region', what are you referring to? A My vagina. At that point my underwear was off and my bra had been undone and - and I could feel someone licking me down there as well. Q Sorry, do you mind just saying that again a bit clearer? It's hard for me to hear you. A I could feel someone licking me down in my private region as well. Q And when you say, 'Private region', you are referring to - A My vagina. Q You mentioned feeling a sharp pain inside your vagina. Are you able to describe that pain? A Yeah. It was - it felt like fingernails, and it was prodding inside, yeah, basically he, he was fingering me but in a rough manner. Q When you say, 'Rough manner', what do you mean? A It was painful like it wasn't - it wasn't to make me feel pleasurable, yeah, it was - sorry, one second - it was almost as if he was just yeah, really using force. Q After waking and feeling these things what if anything did you do in response? A I told him, 'No,' and to stop but he didn't and I tried to squirm upwards but then he ended up just going harder and so I stopped squirming. Q When you say you, 'Squirmed upwards', what did you do with your body? A I was wriggling upwards away from him. Q You said after that he was, 'Going harder'. What did you do if anything in response to that? A Aside from asking him to stop I didn't do anything else. I was a bit too scared to do anything else. Q What happened after that? A And then I passed out again. Q During that incident that you just described can you recall how your body was positioned on the couch? A I was on my back, and he had spread my legs. My legs were up on the couch, not off the couch anymore. Q Did you make any observations about the room? A In order that my, my eyes were kept closed at that point. Q You mentioned passing out. What's the next memory that you have? A The next time I woke up there was another sharp pain and this time it was in my anus region. Q Are you able to describe what that sharp pain felt like? A It just felt like my anus was being stretched. It felt like he was using his penis to try and penetrate my anus. Q What, if anything, did you do in response? A I told him, 'No', and I said that I didn't want to get pregnant which I know that you don't get pregnant through that kind of sexual interaction but because when I asked him to stop earlier it didn't work I just - I don't know what my mind was thinking but that's what came out of my mouth. I was trying to get him to stop. Q What happened after you said those words? A He didn't, he, like the, the sharp pain stopped. Q What happened after that? A I passed out again. Q What's the next memory that you have? A The next memory that I had he had already penetrated my vagina when I woke up. Q When you say, 'Had already penetrated', your vagina do you know what had been used to penetrate your vagina? A It would have been his penis because I could feel his body on top of mine and the location of the penis is - was relevant. Q How did it feel when you woke up? A It was sore because there were still the injuries from earlier. Q Are you able to describe when you woke up you felt his body on top of yours, was there any movement by yourself or him? A He was going hard and pretty rough. Q When you say, 'He was going hard and pretty rough', what are you describing? A Just the way he was penetrating my vagina. Q How did that feel? A It was painful because of the injuries from before but I didn't say anything because I already felt defeated at that point, and I was scared. Q Did you want his penis inside you? A No. Not at all. Q Did you make any observations about your clothing at that point? A Sorry, can you repeat that? Q Sorry. Did you make any observations about your clothing at that point? A My dress was still on but it was lifted and my underwear was still off and my bra was still undone and he was completely naked at that point. Q When you say your underwear was off was it completely off your body or still on your body? A It was completely off my body. Q Did you make any observations about the room at that point? A Yes. I noticed that the door that leads to the stairs was also closed. Q What happened after that? A After a while I just passed out again." [Emphasis added]

Consideration

Standing alone, Mr McMahon's conviction on count 3 is explicable upon the basis that the complainant, according to her evidence at the first trial, said "no" in clear terms, and that the acts which constituted that count were then performed by him contrary to her indication that she did not consent. It is inherent in the conviction that the jury accepted the complainant's version of what occurred over the denials given by Mr McMahon. Once again, standing alone, it was open to the jury to prefer her evidence and to reject Mr McMahon's evidence and he does not maintain in this Court that the version given by her of count 3 was, for example, inherently improbable or that the jury must have had a reasonable doubt and so could not properly have rejected Mr McMahon's account as a reasonable version that could possibly have been true.
However, the acquittals on counts 1 and 2 are arguably explicable upon the basis that the jury were not satisfied that the complainant had also communicated her lack of consent to the oral or digital penetration by similarly clear terms or that Mr McMahon was reckless as to whether she was consenting or not. The complainant's earlier versions of what occurred all maintained that she woke up during the penile-vaginal intercourse and then said "no" and "stop". It was not until she revisited the matter in 2018 and 2019 that the complainant asserted that there was cunnilingus and digital penetration before the penile-vaginal intercourse occurred and it was only in her evidence in 2020 (quoted above) that she indicated that she had expressly said no to these as well.
Necessarily inherent in this analysis is that the jury must have concluded, presumably or possibly arising from the preceding circumstances in which she and Mr McMahon were seated on the lounge drinking and socialising, that the complainant had in some fashion communicated her consent to sexual activity prior to the cunnilingus and digital penetration or that Mr McMahon had reasonable grounds for believing that she had done so. The jury may even have reasoned, notwithstanding the trial judge's directions, that her consent continued, or that Mr McMahon had reasonable grounds for believing that it did so, despite the fact that she was possibly asleep or unconscious when these activities commenced. Such a process of reasoning, however legally or morally inappropriate it may have been, is an available explanation for the acquittals on counts 1 and 2 and does not inevitably entail a rejection of the complainant's evidence concerning these counts. In simple terms, whereas the jury were satisfied beyond reasonable doubt about the circumstances giving rise to count 3, they were not similarly satisfied that the Crown had established counts 1 and 2 to the same standard. That absence of satisfaction was not exclusively or necessarily because the jury must have rejected the complainant's evidence on these counts as untruthful. It would have been both logical and reasonable for the jury to have considered that the complainant's original account of the events of the evening, given on 27 January 2015, was the most reliable and may well have exercised some caution as to whether her later memory of saying "no" when she awoke or regained consciousness during counts 1 and 2 was accurate or reliable. Juries are regularly reminded and instructed that it is permissible for them to accept part of a witness's evidence and reject some other part of the same witness's evidence. It cannot inevitably be concluded in the present case that the jury were not doing so when they apparently did not accept that the complainant did not consent to counts 1 and 2.
Far from Mr McMahon's conviction on count 3 being attended by some doubt, he appears clearly to have been afforded the benefit of the doubt on counts 1 and 2 by a jury acting in accordance with its oath to try him fairly.
Two further matters should be mentioned.
First, much was made at the trial of whether the complainant was at any particular time actually unconscious or asleep or intoxicated. Whatever may have been the significance of that issue before the jury, if any, it is not relevant in the disposition of the present appeal. That is for the reason that any doubt that may have attended the complainant's ability to give consent could not have assisted Mr McMahon. He could not rely upon the complainant's actual consent, or his reasonable belief that she had consented, if the acts complained of were found to have been committed, even if only partially, after the complainant had fallen asleep or into a state of unconsciousness, whatever the case may be.
Secondly, the complainant gave evidence of the injuries she observed to her vagina and of the sensations she felt that were associated with those injuries. Mr McMahon's conviction on count 3 was not dependent upon the infliction of those injuries by him as they would appear on the evidence to have been sustained in the course of the events that gave rise to counts 1 and 2. Moreover, injuries received during sex, or the separate question of whether the sexual activity was rough or hard, are not standing alone inevitably probative of the issue of whether the sexual activity in question was consensual or otherwise.
Despite the terms of his two grounds of appeal, Mr McMahon did not seek separately to argue that there was insufficient evidence to support his conviction. In my view, the guilty verdict on count 3 was not unreasonable.

Orders

I consider that the following orders should be made: 1. Grant leave to appeal against conviction. 2. Dismiss the appeal.
WRIGHT J: I agree with the orders proposed by Harrison J and with his Honour's reasons. More specifically, in relation to the question whether there existed any rational explanation for the acquittals on counts 1 and 2, other than doubts about the complainant's credibility, I was satisfied that there was such an explanation based on the jury accepting the accounts given by the complainant a short time after the events of the evening in question, which focused on the penile-vaginal intercourse which was the subject of count 3, rather than her much later versions of what occurred which dealt in more detail with the conduct which was the subject of all three counts. Those earlier accounts gave a solid foundation for the jury to find Mr McMahon guilty on count 3 but did not provide a similarly solid foundation for accepting that counts 1 and 2 had been proved beyond reasonable doubt. In my view, it could not be concluded that the acquittals on counts 1 and 2 were attributable only, or principally, to doubt about the complainant's credibility and, thus, the verdict of guilty in respect of count 3 was not unreasonable on the basis relied upon by Mr McMahon.
FAGAN J: I agree with Harrison J. Applying the principles laid down in the authorities cited by his Honour at [17] and [18], I find the jury's acquittal of the appellant on counts 1 and 2 explicable "without resort to doubts about the complainant's credibility". It is possible to identify more than one rational basis upon which the jury may have discriminated between the strength of the Crown case on counts 1 and 2 and the strength of its case on count 3, without imputing that the jury were dissatisfied with the complainant's credibility.
In particular, it was open to the jury to differentiate counts 1 and 2 from count 3 on the issue of whether the appellant knew that the complainant did not consent. The jury were directed thoroughly and accurately about that element, in accordance with s 61HA(3) of the Crimes Act as in force at 26 January 2015. The acquittals may be explained on the basis that, while the jury accepted unreservedly the complainant's evidence that she did not consent to any of the three acts of intercourse, they were not satisfied beyond reasonable doubt that when the appellant performed the digital penetration in count 1 and the oral intercourse in count 2 he (a) actually knew that she did not consent to those acts or (b) was reckless as to whether she consented or (c) had no reasonable grounds for believing that she consented.
Harrison J has quoted at length the complainant's evidence that, when she awoke to find the appellant digitally penetrating and licking her, she responded by saying "No" and "Stop" and by trying to squirm away. One rational explanation of the acquittals is that, whilst the jury fully accepted the complainant, they were not persuaded beyond reasonable doubt that her protests when she first stirred from sleep were voiced in time to impart knowledge of non-consent in relation to the two initial acts. In contrast, on the complainant's evidence the appellant perpetrated the penile-vaginal intercourse in count 3 some little time later, after the complainant had again fallen asleep. The jury may well have reasoned that by that stage the appellant was unmistakably aware from the complainant's reaction when she had awoken to the earlier acts that she did not consent to sexual contact.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 April 2022

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)