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List of Texts/Papers cited: Judicial Commission of NSW, Criminal Trials Courts Bench Book

Tribunal: Acting Presidential Member G Curtin SC Senior Member E Morrison

Date of Orders: 21 April 2026 Date of Reasons for Decision: 21 April 2026 Date of Publication: 29 April 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 13/2024

BETWEEN: MEDICAL BOARD OF AUSTRALIA Applicant AND: IMRAN KADER Respondent

TRIBUNAL: Acting Presidential Member G Curtin SC Senior Member E Morrison

DATE: 21 April 2026

ORDER The Tribunal orders that:

1. Charge 1 is dismissed.

2. Upon being satisfied that the Charge 2 is established in relation to the respondent’s admitted conduct of committing perjury and attempting to pervert the course of justice, the respondent has behaved in a way that constitutes professional misconduct.

3. The matter will be listed on a date to be fixed for the making of directions as to the conduct of the penalty stage of the proceedings.

……………………………….. Acting Presidential Member G Curtin SC REASONS FOR DECISION .................................................................................................... 1 Background ............................................................................................................................... 2 The issues before the Tribunal ................................................................................................ 11 Fact finding, evidence and the standard of proof ................................................................... 12 P 21’s Evidence ...................................................................................................................... 20 The diary note ..................................................................................................................... 20 The record-of-interview ...................................................................................................... 20 P21’s evidence in the first trial ........................................................................................... 24 P21’s evidence in the second criminal trial ........................................................................ 27 P21’s evidence in the Tribunal ........................................................................................... 28 P21’s credit ......................................................................................................................... 28 P2’s evidence .......................................................................................................................... 30 P2’s record-of-interview ..................................................................................................... 30 P2’s evidence in the first trial ............................................................................................. 31 P2’s evidence in the second trial ........................................................................................ 34 P2’s evidence in the Tribunal ............................................................................................. 35 P3’s evidence .......................................................................................................................... 35 P3’s record-of-interview ..................................................................................................... 35 P3’s evidence in the first trial ............................................................................................. 36 P4’s evidence .......................................................................................................................... 37 P4’s record-of-interview ..................................................................................................... 37 P4’s evidence in the first trial ............................................................................................. 38 P4’s evidence in the second trial ........................................................................................ 40 P5’s evidence .......................................................................................................................... 41 P5’s record of interview...................................................................................................... 41 P5’s evidence in the first trial ............................................................................................. 42 P5’s evidence in the second trial ........................................................................................ 42 P6’s evidence .......................................................................................................................... 43 P6’s evidence in the first trial ............................................................................................. 43 P6’s evidence in the second trial ........................................................................................ 44 P22’s evidence ........................................................................................................................ 45 P22’s evidence in the first trial ........................................................................................... 45 P22’s evidence in the second trial ...................................................................................... 46 P24’s evidence ........................................................................................................................ 46 P24’s evidence in the first trial ........................................................................................... 46 Dr Parekh’s evidence in the second trial ................................................................................ 47 P20’s evidence ........................................................................................................................ 48 P20’s transcript of interview ............................................................................................... 48 P20’s evidence in the second trial ...................................................................................... 48 P20’s evidence in the Tribunal ........................................................................................... 50 Other witnesses ....................................................................................................................... 50 The respondent’s evidence ..................................................................................................... 51 The respondent’s evidence in the first trial......................................................................... 51 The evidence which gave rise to the justice administration offences and Charge 2 in the Tribunal ................................................................................................................ 53 The respondent’s evidence in the second trial .................................................................... 56 The respondent’s evidence in the Tribunal ......................................................................... 60 The respondent’s credit....................................................................................................... 61 Admissibility and weight of the sentencing remarks and the Court of Appeal’s judgment ... 62 Decision .................................................................................................................................. 74 The alleged sexual assault .................................................................................................. 74 Perjury................................................................................................................................. 89 Attempt to pervert the course of justice .............................................................................. 90 Characterisation ...................................................................................................................... 91 Orders ..................................................................................................................................... 92 Senior Member Morrison ....................................................................................................... 93 Multi-member tribunal........................................................................................................ 93 General comments on Charge 1 .......................................................................................... 93 The evidence ....................................................................................................................... 94 P21’s evidence .................................................................................................................... 95 P2’s evidence ...................................................................................................................... 98 Other issues from the evidence ........................................................................................... 99 The respondent’s credibility and the reliability of his evidence ....................................... 100 P21’s credibility, reliability of her evidence and the sub-issues ...................................... 100 Findings on sexual activity ............................................................................................... 104 Findings on consent .......................................................................................................... 105 Findings on respondent’s knowledge of, or recklessness about, consent ......................... 110 Conclusion on Charge 1 and characterisation .................................................................. 110 REASONS FOR DECISION 1. These are disciplinary proceedings brought by the applicant (the Board) against the respondent pursuant to the Health Practitioner Regulation National Law (ACT) (the National Law). In these reasons we are determining breach and characterisation only.

2. Both pseudonym and non-publication orders have been made in relation to these 1 proceedings and remain in force. Witnesses other than the respondent will be referred to in these reasons as “P#” as shorthand for “Person #”.

3. The Board brought two charges against the respondent. First, that the respondent had engaged in sexual activity with P21 without her consent at the respondent’s apartment early in the morning of 1 December 2019 (Charge 1). Second, that on or around 3 March 2022, and between 28 June 2022 and 3 July 2022, the respondent committed the criminal offences of perjury and attempt to pervert the 2 course of justice (Charge 2).

4. In relation to Charge 1, the respondent agreed that sexual activity occurred between he and P21 but said it was consensual. The respondent and P21 also differed in their recollections of exactly what sexual activities occurred, in what order and where in the respondent’s apartment they took place.

5. In relation to Charge 2, the Board alleged the respondent lied on two occasions when giving evidence in his first criminal trial (the two perjury aspects of Charge 2) and subsequently attempted to coerce his former wife, P20 to change or add to her statement to police to make it consistent with his evidence in the first criminal trial (the two attempt to pervert the course of justice aspects of Charge 2).

1 Pseudonym orders were made in relation to all persons mentioned in the proceedings other than the respondent, and those persons will be referred to by their respective pseudonym in these reasons. Non-publication orders were made to the effect that the disclosure (by publication or otherwise) of information or particulars that might enable those persons to be identified or that would reveal their identity in relation to these proceedings, other than by use of their pseudonyms, was prohibited 2 The charge initially said between 28 June 2022 and 1 July 2022, but the indictment from which those dates was taken was amended by consent on day 6 of the second trial so that 1 July became 3 July. No prejudice arises to the respondent, and we have treated charge 2 as having an end date of 3 July 2022

6. Before us the respondent admitted one lie and admitted attempting to pervert the course of justice in relation to that lie. He denied the second lie and denied attempting to pervert the course of justice in relation to that second lie (assuming it was proved).

7. For the reasons that follow, I am not comfortably satisfied that the respondent engaged in sexual activity with P21 without her consent. I am also not comfortably satisfied that the respondent committed the second lie, nor that he attempted to pervert the course of justice in relation to its subject matter.

8. The respondent admitted to the first lie, and admitted to attempting to pervert the course of justice in relation to it. In my view that conduct amounted to professional misconduct.

Background

9. Originally, the respondent and his former wife, P20, lived in an apartment at Deakin in the Australian Capital Territory (the scene of the alleged sexual assaults). They owned a dog and, amongst other paraphernalia, owned a “large tub” which they used to store dog food (the dog food box).

10. Due to temporary work commitments P20 moved to Taree in NSW in early 2019 and then to Newcastle in about mid-2019. When P20 moved to Newcastle she took the dog and she recalled taking the dog food box with her, although the dog would occasionally visit the respondent at Deakin whilst he remained living there, including in September and December 2019.

11. The respondent and P20 married in October 2019.

12. In November/December 2019, P21 and the respondent were employed at a hospital in Canberra. P21 was a junior nurse and the respondent a vascular registrar.

13. They had not met prior to 1 December 2019.

14. On 30 November 2019, the respondent and P21 attended a work Christmas party with other employees of the hospital at the Rex Hotel in Canberra.

15. Later that evening, and shortly after midnight on 1 December 2019, they separately ended up at Hopscotch Bar in Braddon, in the ACT (Hopscotch). By that time both P21 and the respondent had been drinking alcohol for some hours and were affected by alcohol to differing degrees.

16. Estimates varied, but approximately 15-30 minutes after arriving at Hopscotch, P21 and the respondent left that bar and caught a taxi to the respondent’s apartment in Deakin. Records reveal they caught the taxi at 1:36am on 1 December 2019.

17. The respondent’s evidence was that the taxi took about ten minutes to travel from Hopscotch to the respondent’s apartment. Records revealed that P21 called an Uber to pick her up from the respondent’s apartment at 2:48am, the Uber arrived at 2:55am and P21 was dropped at her home at 3:03am.

18. Thus, P21 was at the respondent’s apartment for about one hour prior to calling the Uber to take her home. What happened during that one hour is the subject of dispute.

19. It is common ground that after entering the apartment sexual activity took place between P21 and the respondent, although their evidence differed as to what activity occurred in what sequence and in which areas of the apartment. It was common ground that the activity involved cunnilingus, digital vaginal penetration and the kissing of P21’s breasts. An allegation was made that the respondent also applied an electric toothbrush to P21’s vagina but this was denied. P21’s recollection was that none of that sexual activity was consensual and that her statements and actions whilst at the apartment clearly communicated a lack of consent.

20. The respondent’s case was that all sexual activity was consensual and that P21 had communicated consent to him.

21. Upon leaving the respondent’s apartment P21 was in considerable distress and immediately rang her friend, P2, and spoke to him for 38 minutes. She gave P2 a description of what had taken place at the respondent’s apartment, albeit it was less detailed than that she gave in her evidence.

22. Later that morning P21 spoke to P2 again. She also later spoke to her two best friends, P5 and P6.

23. Within a week or two of 1 December 2019, and at the suggestion of P2, P21 wrote a diary entry describing her then recollection of what occurred at the respondent’s apartment.

24. On 11 July 2020, P21 reported the alleged assault to the police.

25. The police interviewed her that same day and subsequently interviewed various other witnesses (but not P20) and conducted other investigations.

26. When interviewed by the police, P21 hand drew a diagram depicting her recollection of the layout of the respondent’s apartment. This diagram, in black and white, became Ex 1 in the first criminal trial referred to below. P21 later added some red markings to Ex 1. Exhibit 1, with the red markings added, became Ex 3. Ex 3 is relevant to Charge 2 in the proceedings before us and is annexed to these reasons and marked Annexure A.

27. As a result of those investigations police preferred five charges against the respondent (referred to in the first criminal trial as Counts 1-5), namely: an act of indecency without consent; sexual assault in the second degree; an act of indecency without consent; sexual intercourse without consent; and sexual intercourse without consent.

28. I divert briefly to note that Count 2 included an allegation that the respondent injured P21 in pushing her against a bed frame which caused bruising. That aspect of Count 2 was not pursued by the Board against the respondent in the Tribunal.

29. Returning to the narrative, the respondent was first contacted by the police about the allegations on 14 September 2020. He said he was in state of disbelief and shortly thereafter he consulted his solicitors.

30. The respondent’s solicitor spoke to the investigating police officer on 22 September 2020 (about eight days after the police first spoke to the respondent to advise him that they were investigating the alleged sexual assault). As recorded contemporaneously in the police officer’s notebook, the solicitor told the police that the respondent’s recollection of events was: [P21] accompanied Mr Kader back to his apartment from the venue of her own accord/free will. At the apartment they both commenced engaging in consensual intimacy. Shortly afterwards, [P21] observed a photo of Mr Kader's wife and witnessed him trying to discreetly remove his wedding ring. [P21] became upset with him and challenged him about this. After a short verbal argument, [P21] left the apartment. He did not attempt to intervene or impede her departure from the apartment.

31. This version of events was communicated to the police before the respondent had been served with a brief of evidence, and before knowing what P21’s version of events was.

32. On 12 December 2020, P21 lodged with the Board a complaint against the respondent for alleged sexual assault.

33. On 23 February 2021, the Board accepted an undertaking from the respondent not to practice. That has remained the case to date.

34. A trial of the five charges referred to above commenced in the Supreme Court of the Australian Capital Territory on 21 February 2022 (the first trial).

35. At the first trial both P21 and the respondent gave evidence in relation to the sexual assault allegations.

36. In the course of doing so some evidence was given by P21 to the effect that when she was leaving the apartment the respondent had thrown her against a wall of the apartment and held her there briefly. That allegation was not part of any count preferred against the respondent at that time (and it was denied), but it was the allegation which led to evidence being given by the respondent which led to the subsequent perjury charge and Charge 2 in these proceedings.

37. I shall detail that evidence later in these reasons but suffice to say that the respondent gave evidence-in-chief in the first trial to the effect that he could not have thrown P21 against the wall because of the presence of a large cabinet and a dog food box sitting against the wall in the relevant area. In cross-examination he said that the dog was living with him at that time, but would occasionally go to Newcastle to visit P20. He said the dog was visiting P20 in Newcastle on the night of the alleged sexual assault. There was no dispute that the dog was in Newcastle on 1 December 2019.

38. The jury were unable to reach a verdict on any of the charges preferred against the respondent in the first trial.

39. A second jury trial was listed for hearing on 4 July 2022. That trial was adjourned and the dates vacated. The second trial eventually commenced on 28 November 2022 (the second trial).

40. Before the second trial, and on 17 June 2022, the police interviewed P20 about the evidence given by the respondent about where the dog was living at the time of the alleged sexual assault (which I quote at [325] below) and some other matters. That interview was transcribed.

41. That transcription was served upon the respondent as part of the police brief.

42. Later, the respondent attempted to communicate with P20. She resisted those attempts. The respondent then sent a series of text messages to P20 outlining his wish to speak to her about an “issue with [her] evidence” and that it was “just about the dog”.

43. P20 would not speak to the respondent.

44. The respondent then sent P20 an email on 30 June 2022. That email is attached 3 to these reasons and marked Annexure B. I shall come to the contents of that email later in these reasons but suffice to say the email was the basis for the charge of attempting to pervert the course of justice.

45. P20 reported the text messages and the email from the respondent to the police.

46. The police then charged the respondent with three further offences.

47. The further charges were: that on 20 March 2022 at Canberra, he made a false sworn statement in a legal proceeding with the intention of procuring the acquittal of an offence, that offence being punishable by imprisonment, being reckless

3 It is a copy of Annexure A to the sentencing remarks in DPP v Kader (No 6) [2023] ACTSC 363 about whether the statement was false (Count 6); in the alternative to Count 6, that on 3 March 2022 at Canberra he made a false sworn statement in a legal proceeding being reckless about whether the statement was false (Count 7); and that between 28 June 2022 and 1 July 2022 at Canberra or elsewhere, he attempted by his conduct, to intentionally pervert the course of justice (Count 8).

48. Counts 6 and 7 concerned alleged perjury and arose out of the respondent’s evidence at the first trial which I adverted to at [37] above. Count 6 was the same as Count 7 except that it contained an added element to the effect that the perjury was committed for the purpose of securing an acquittal (what is called “aggravated perjury”). Count 7 was “perjury simpliciter”, so called because it did not contain the element of intention involved in Count 6.

49. Count 8 was to the effect that the respondent had attempted to persuade P20 to give different evidence about their dog’s living arrangements than that contained in her police witness statement.

50. Counts 6-8 were then added to the sexual assault counts (Counts 1-5) so that all Counts were to be heard at the second trial.

51. At the commencement of the second trial on 28 November 2022 the respondent pleaded guilty to Count 7 (perjury simpliciter) and not guilty to Counts 1-6 and 8. The prosecution accepted the plea of guilty to Count 7 in discharge of Count 6 (aggravated perjury). The trial then proceeded on Counts 1-5 (the sexual assault charges) and Count 8 (attempt to pervert the course of justice).

52. During the second trial P20 gave evidence to the effect that the dog lived with her at the relevant time and that she had taken the large tub of dog food with her to Newcastle in August 2019. She gave no evidence about the large cabinet the respondent had said was against the wall next to the dog food box.

53. The second trial ran for eight days but ended with the jury being unable to reach a verdict on any of the charges.

54. A third trial was listed to commence on 31 July 2023.

55. Before that date, and on 14 December 2022, the respondent offered to plead guilty to the count of attempting to pervert the course of justice in full discharge of the indictment. The prosecution did not accept the plea at that stage.

56. On 6 June 2023, the prosecution elected not to proceed with the sexual assault charges.

57. On the same date, the prosecution filed a further amended indictment containing only the two justice administration offences (perjury and attempt to pervert the course of justice).

58. On 19 July 2023, the respondent pleaded guilty to both justice administration offences.

59. On 13 November 2023, the respondent came before Chief Justice McCallum for sentencing.

60. As is often the case, the prosecution and the defence agreed a number of facts for the purpose of the sentencing hearing and those agreed facts were committed to writing and handed to her Honour.

61. However, there arose a dispute as to the scope of the agreed facts at the sentencing hearing. The respondent accepted that he had lied in the first trial about the dog living with him in December 2019 (the first lie), but said he had not pleaded guilty to lying when he gave evidence that it would not have been possible for him to have thrown P21 against the wall because there was the large cabinet and a dog food box in that space at that time (the second lie).

62. The Chief Justice said she was not bound by any party’s understanding of the agreed facts, but was required to determine, beyond reasonable doubt, whether the respondent had committed the second lie based on those agreed facts and the evidence from the second trial.

63. Her Honour found the second lie proven.

64. Her Honour’s findings and reasoning were as follows (emphasis in original): [21] I am satisfied beyond reasonable doubt that the items described by the offender as being near the wall (a large cabinet and the large tub of dog food) were not present in his apartment at the time of the alleged sexual offences. The overwhelming weight of the evidence of the former wife was to that effect. That finding is further supported by the content of the offender’s email, which provides a telling account of a series of deliberate lies. [22] I am further satisfied beyond reasonable doubt that the offender’s sworn evidence that it would not have been possible for the complainant to have been pushed against the wall because of the presence of other items was a deliberate lie told by the offender for the purpose of undermining the evidence of the complainant as part of a broader attack on her credibility. [23] In his email to his former wife, the offender said: I explained that when we moved from Leppington we went from a 5 bedroom house to a 1 bedroom unit and we left some boxes of stuff in my mum's garage, including a spare dog crate, a pile of leads, additional dog bowls, a bed and all sorts of things because the dog is spoilt so there was no need to take anything from Canberra when you moved to Newcastle and the dog was still visiting Canberra so I left the dog bowls lying there for when she was there. (Emphasis added.) [24] The offender was acutely aware of the significance of the lie. That is clearly what drove him to prevail upon his former wife to support his lie. The brazenness of his approach to his former wife is telling. At a time when he plainly knew she wanted nothing to do with him, he prevailed upon her to help him defend charges of sexual assaults allegedly committed during their marriage. His conduct towards his former wife was cynical and manipulative. Before resorting to sending her an email, he wrote her a text message in which he described her conduct in providing a statement to police as “disgraceful”. [25] In the email, he acknowledged that parts of his evidence “wasn’t true”. Commenting on an agreed fact as to the dog’s living arrangements based on his former wife’s statement to police, he wrote: We can't agree to that going to the jury because the prosecution will simply argue that the dog had moved, the crate was gone and I have provided an old photo with the dog bowls and dog food to deliberately fill the wall with stuff. It will be obvious that I have lied under oath, my credibility will be gone and I'll be convicted. (Emphasis added.) [26] The email attached the photographs of the area near the door and of the dog bowls so that his former wife could “see the layout”. The only reasonable inference is that he wanted to ensure her evidence concerning the dog items matched his so that his false evidence was not questioned. [27] For those reasons, I am satisfied beyond reasonable doubt that the offender perjured himself in giving false evidence that it would not have been possible to throw the complainant against the wall because of the presence of items in that space.

65. In relation to the charge of attempting to pervert the course of justice, the Chief Justice said that the facts in relation to that offence were simpler, namely that the charge was based on the respondent’s attempt to coerce P20 to change or add to her statement to police to make it consistent with his false evidence.

66. Her Honour sentenced the respondent to nine months imprisonment for the offence of perjury and two years and three months for the offence of attempting to pervert the course of justice: DPP v Kader (No 6) [2023] ACTSC 363 (Kader (No 6)).

67. The respondent appealed.

68. The Court of Appeal held that the Chief Justice had erred in taking into account the respondent’s intention in relation to the attempt to pervert the course of 4 justice. Intention was relevant to aggravated perjury (which charge had been discharged) but not to perjury simpliciter (the charge the respondent pleaded guilty to). The Court of Appeal dismissed the other grounds of appeal and re-sentenced the respondent to the same terms of imprisonment as the Chief Justice.

69. One ground of appeal dismissed by the Court of Appeal is relevant to the proceedings before us. That ground contended that the Chief Justice erred in finding beyond reasonable doubt the following two facts:

(a) that no large cabinet either existed or was in the respondent’s apartment at the time of the alleged sexual offences; and

4 Kader v Director of Public Prosecutions [2024] ACTCA 31 at [47] (b) that the respondent had lied in his evidence that a large cabinet was placed against the wall into which it was alleged he had pushed P21.

70. The Court of Appeal dismissed that ground for reasons which will be discussed later in these reasons.

71. The Board commenced these proceedings in September 2024.

72. The hearing of these proceedings took place in the first week of December 2025. The respondent was not legally represented, but through arrangements made through the ACT Bar Association Mr John Purnell SC conducted the cross-examination of P21 on behalf of the respondent. P21 gave evidence from a remote location.

The issues before the Tribunal

73. The proceedings in the Tribunal were split into two stages: breach and characterisation (Stage 1) and penalty (Stage 2). These reasons concern the Stage 1 hearing.

74. In short, and in relation to Charge 1, the respondent said that all sexual activity was consensual.

75. In relation to Charge 2, he admitted perjury and attempting to pervert the course of justice in relation to his first trial evidence as to where the dog was living. He denied perjury and attempting to pervert the course of justice in relation to his first trial evidence that it would not have been possible to have thrown P21 against the wall because of the presence of a large cabinet and a dog food box.

Fact finding, evidence and the standard of proof

76. The allegations are serious and, as correctly put by the Board, the standard of proof to be applied is the balance of probabilities taking into account what was said in Briginshaw v Briginshaw [1938] HCA 34.

77. In relation to findings of fact, in Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 3) [2024] ACTSC 315 the following was said about fact finding (emphasis added): [651] In making my findings of fact and assessing credit, I bear in mind the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses when giving their oral evidence. I will, as far as possible, reason to my conclusions on the basis of contemporary materials, objective facts, and the inherent probability of events: see Fox v Percy [2003] HCA 22; 214 CLR 118 at 128129 (Fox v Percy), [30]-[31] per Gleeson CJ, Gummow and Kirby JJ. [652] I also bear in mind McLelland CJ in Eq’s oft-quoted passage about the fallibility of human memory set out in Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman), wherein his Honour said at 319: Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. [653] The fallibility of human memory, and other difficulties with fact finding, were further examined by Justice David Ipp, writing extra-judicially, in ‘Problems with fact finding’ (2006) 80 Australian Law Journal 667 (‘Problems with fact finding’) at 667, and by Justice Peter McClellan, also writing extra-judicially, in ‘Who is telling the truth? Psychology, common sense and the law’ (2006) 80 Australian Law Journal 655 (‘Who is telling the truth?’) at 663-665. [654] Further comment on the fallibility of human memory is found in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]–[23], in which Leggatt J observed that there are a number of difficulties with oral evidence based on recollection of events. Leggatt J said that considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. As Lee J summarised his Lordship’s judgment in Webb v GetSwift Limited (No 5) [2019] FCA 1533 at [18]: As his Lordship noted, a witness is asked to make a statement, often when considerable time has already elapsed since the relevant events. The statement is usually drafted by a solicitor who is inevitably conscious of the significance for the case of what the witness does or does not say. The statement is often made after the memory of the witness has been “refreshed” by reading documents. The documents considered can often include argumentative material as well as documents that the witness did not see at the time and which came into existence after the events which the witness is being asked to recall. It may go through several iterations before it is finished. As Lord Buckmaster famously said, the truth “may sometimes leak out from an affidavit, like water from the bottom of a well”. This may be overly cynical, but the surest guide for deciding the case will be as identified by Leggatt J at [22]: … the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on the witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. [655] Leggatt J’s statement may be a helpful working hypothesis, but it is not a rule to be slavishly applied. At its base, it reflects what was said in Fox v Percy together with the recognition of the fallibility of human memory, and how, no matter the honesty of the witness, memory may be affected by the passage of time, self-interest, motivation, suggestion and other factors. [656] The other matter I note is what I must be satisfied of in relation to any finding of fact. McDougall J (McColl and Bell JJA agreeing) said in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 (Nguyen) at [44]: A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact.

78. A number of matters should be added to those general observations.

79. First, the Evidence Act 2011 does not apply in the Tribunal as that Act says that it only applies to the Supreme and Magistrates Court and any entity that, in exercising a function under a territory law, is required to apply the laws of evidence. As the Board correctly submitted, section 8 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) says that the Tribunal need not comply with the rules of evidence applying in the ACT.

80. Second, although we are not bound by those rules, we are able to decide our own procedure and inform ourselves in any way we consider appropriate in the 5 circumstances. Of course, we have a statutory duty to observe natural justice and 6 procedural fairness, and the underlying principles of fairness, natural justice and

5 ACAT Act, ss 23, 26 6 ACAT Act, s7(b) reliance on credible and relevant evidence, which underpin the rules of evidence, 7 remain applicable.

81. The allegations are serious and I am required to be comfortably satisfied that the 8 allegations are made out. The rules of evidence assist in that process because they may inform me in assessing the reliability, credibility and weight of the material placed before me, particularly in relation to disputed facts. We admitted all of the material tendered by the parties with the exception of some clearly irrelevant material.

82. The material tendered included 13 days of transcript from the first trial and eight days of transcript from the second trial.

83. In relation to the standard of proof, in Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 concerning disciplinary proceedings in the NSW Civil and Administrative Tribunal (not being legal practitioner proceedings) Adamson JA said at [207] (emphasis added): Section 38(2) of the NCAT Act provides that “[t]he Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.” Although the Tribunal is not bound by the rules of evidence, it has been accepted that in order to uphold the complaints, the Tribunal must be “comfortably satisfied” that the alleged conduct actually occurred: Gautam v Health Care Complaints Commission [2021] NSWCA 85 (Gautam) at [85][87] (Payne JA, Leeming JA and Simpson AJA agreeing). ... Because of the wording of s 38(2) of the NCAT Act, tribunals do not necessarily refer to legal authorities or provisions of the Evidence Act, but may, as the Tribunal did in the present case, put the matter in terms of “comfortable satisfaction”, to indicate that the decision-maker appreciates that, when a grave allegation is made, they ought reach a state of comfortable satisfaction before finding that it has been made out.

84. The seriousness of the allegations and gravity of a substantiated finding requires me to feel an actual persuasion that they probably occurred, and the evidence 9 must be evaluated for credibility and consistency with the probabilities.

7 Francis Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283 at [11] 8 See Gautam v Health Care Complaints Commission [2021] NSWCA 85 (Gautam) at [85]-[87] (Payne JA, Leeming JA and Simpson AJA agreeing) 9 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66

85. In relation to my reasons, in NSW it has been held that the content of the duty to give adequate reasons in disciplinary proceedings depends on the circumstances. Commonly, disciplinary proceedings involve contested questions of fact that include questions of credibility and reliability of the central actors. Disciplinary tribunals are required to apprehend the gravamen of each side’s case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they 10 turn.

86. In relation to fact-finding, it must be kept in mind that memory is fallible, and 11 honest witnesses are frequently in error about the detail of events. Witnesses may be honest, but mistaken.

87. There are also well recognised difficulties with fact-finders being able to determine whether a witness is telling the truth by assessing their demeanour when giving oral evidence.

88. Those difficulties with demeanour-based findings explain why fact-finders are expected to weigh their impressions about demeanour against the probabilities, and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in 12 the case.

89. As was said by the plurality in Fox v Percy [2003] HCA 22 (emphasis added): [30] … However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"): "... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."

10 See Gautam per Leeming JA, with whom Payne JA and Simpson AJA agreed, at [18] 11 Coote v Kelly [2013] NSWCA 357 (Coote) at [51] per Leeming JA, with whom Basten and Hoeben JA agreed, cited with approval in Gautam at [21] 12 Coote at [27], cited with approval in Gautam at [23] [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

90. Often, important issues of credibility involve sub-issues. The resolution of sub-issues with the assistance of objective facts, or facts that are probable, may assist 13 in the resolution of ultimate factual issues. That observation is relevant in the present case.

91. Having said all that, and as was said in Fox v Percy, the demeanour of witnesses may still play a role in determining contested facts.

92. A significant detrimental factor for me in this case was the lack of opportunity to observe the demeanour of important witnesses. In that regard I am speaking of the oral evidence given at the first and second trials, and the video recording of P21’s record-of-interview with the police. We were provided with transcripts of that evidence, but transcripts only. That is not a criticism of the Board in any way, it attempted to obtain as much material from those trials as it could.

93. However, the fact that we had transcript only hindered our fact-finding exercise and we were in a similar disadvantageous position to that of an appellate court. As to the latter, in Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes [2026] NSWCA 35, Bell CJ, with whom Kirk and Ball JJA agreed, said the following at [64]: Considerations of context and tone in answering questions will invariably be important in a primary judge forming impressions of witnesses: Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191 at [58] (Mt Pleasant). Review of a transcript by an appellate court, however conscientious, is a different exercise from that experienced by the judge presiding over a trial where factual issues are hotly in contest. Such a “desktop” review will generally not pick up characteristics such as sarcasm, arrogance, humour or humility in a witness’ answers nor, as Kirk 13 Coote at [29], cited with approval in Gautam at [24] JA pointed out by way of example in Mt Pleasant, will it necessarily lead to an appreciation “that an answer was given angrily in response to some provocation, such that its significance is not what might appear from the page” nor reveal the fact of pauses in answers to questions and what may be discerned from such pauses. This will be a matter of context and may also be influenced by matters such as the tone of the cross-examination which will not always be apparent from the pages of the transcript. All of this is to reinforce the wisdom underpinning the need for caution against appellate intervention in respect of findings of fact reached after a contested hearing where there have been major clashes in the evidence.

94. In Garay v R (No 3) [2023] ACTCA 2 much the same was said at [31]: Whatever differences exist between trial by jury and trial by judge alone, the advantage of being immersed in the atmosphere of the trial is one thing they undoubtedly have in common; an advantage not shared by the appellate court. The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.

95. Importantly, not only were we not in a position to observe the demeanour of P21 and the respondent when they gave their evidence at the trials (albeit they gave brief oral evidence before us), but we were unable to assess the demeanour of witnesses to events leading up to and occurring at Hopscotch and whose evidence was at odds with P21’s evidence, and P2’s evidence of his conversations with P21.

96. In mentioning the fact that P21 and the respondent gave oral evidence before us, I am cognisant that they were doing so some six years after the relevant events, an effluxion of time that would not have assisted their accuracy of recollection.

97. In coming to my findings of fact, when events occurred at a time when witnesses were intoxicated, I have taken into account the expert literature tendered by the Board on the subject of the effect of alcohol on memory. In short, that evidence is to the effect that alcohol tends to affect the completeness of a witness’s recollection, rather than its accuracy.

98. I have also taken into account some principles of the criminal law. Those principles which apply to non-consensual sexual acts do not apply by force of statute to the proceedings before us, but those principles provide useful guardrails that I have applied by analogy in my reasoning process.

99. Therefore, as to consent, I have applied the definition of that term which is set out in Part 3 of the Crimes Act 1900 (the Crimes Act) , namely that consent to a sexual act means informed agreement to the sexual act that is freely and voluntarily given and is communicated by saying or doing something. There was no dispute that the acts alleged by the Board amounted to sexual acts.

100. I have adopted the approach in the Crimes Act to the effect that a person may commit a sexual assault not only if there is an absence of consent, but also if the person is reckless as to whether the other person consents (which is part of Charge 1).

101. I have adopted that which is set out in section 67 of the Crimes Act and in particular that P21 did not consent to a sexual act if P21 said or did something to communicate withdrawing agreement to the act either before or during the act, was incapable of agreeing to the act because of intoxication or did not have the capacity to agree to the act.

102. I have also adopted the approach set out in section 67A of the Crimes Act that in deciding the respondent’s knowledge or belief, or recklessness, about whether P21 consented to the sexual acts alleged, I have considered all the circumstances of the case but I have not considered the respondent’s self-induced intoxication.

103. I should immediately note that intoxication is relevant to other issues in these proceedings other than consent to sexual activity, knowledge, belief and recklessness. Intoxication remains relevant to what happened at Hopscotch, the circumstances of P21’s and the respondent’s leaving Hopscotch and their travel to the respondent’s apartment. Those are factual matters which fall outside the 14 principles I have mentioned.

14 As was the position of both the prosecution and the defence in the second trial

104. I have also applied the contents of directions that may be given to juries in sexual assault cases concerning misconceptions about consent in sexual assault matters and which are contained in the Judicial Commission of NSW’s Criminal Trials Courts Bench Book, namely that: (a) trauma may affect people differently, which means some people may show obvious signs of emotion or distress when giving evidence about an alleged sexual offence, but others may not; (b) the absence of emotion or distress does not necessarily mean a person is not telling the truth about an alleged sexual offence, any more than the presence of emotion or distress means they are telling the truth about it; (c) I have avoided making any assessment about whether or not P21 consented to the sexual activity on the basis of any preconceived ideas I might have had about how people respond to non-consensual activity; (d) there is no typical or normal response to non-consensual sexual activity and people may respond to non-consensual sexual activity in different ways; and (e) I have not assumed that P21 consented to the relevant sexual activity because she was wearing particular clothing, had a particular appearance or had consumed alcohol.

105. I shall now set out the evidence given by the witnesses in the chronological order in which it was given by each witness or created (in terms of documents).

P 21’s Evidence The diary note

106. P21 made a handwritten diary note within a week or two of 1 December 2019 (at the suggestion of P2).

107. In the diary note P21 said: We were at hopscotch, I was with the group. He came over from the bar & grabbed my hand. He pulled me outside, I asked what he was doing, where we were going. He opened a car door & pushed me in & said his address. I sat there while he kissed my neck & had his hand on my leg. We walked inside, I put my bag on the table. ??? …. I was pushed up onto the top of a low bookshelf, he was kissing me & down my neck, his hands going up my dress. He went down on me. He went to the bathroom & got an electric toothbrush - which he then used on me. I pu ??? I pushed him off & picked up my undies from the floor. I put them back on. He pushed me into his bedroom. … He kept trying to go down on me, I would push him away or close my legs & roll over. I got out of the bedroom & grabbed my phone, when trying to order an Uber my phone died. He grabbed me & tried to take me back to his bedroom, I look for his phone charger & found it on the floor. I attached my phone & he knocked it out of my hands & threw me onto the bed whilst the again trying to go down on me. I kept rolling away. I rolled him off the bed. I grabbed his face & told him to stop – he has a wife. I grabbed my phone it was on 4% now. I or tried to order an Uber, he kept throwing my phone away from me. I kept grabbing it & ordered one. He threw the phone again. I grabbed it & went for the door. He grabbed me & pushed me against the wall. ??? I got past him. I grabbed the door handle, he grabbed me from behind. I kept saying let me go. I got the door open slightly & yelled it again. I managed to slip away & get out the door. I ran to the car. When driving away I saw him come outside. The record-of-interview

108. P21 was interviewed by police on 11 July 2020 (some seven months after the alleged assault).

109. In the record-of-interview P21 described the events leading up to her attendance at Hopscotch. The following summary is taken from that interview although certain matters in the record-of-interview which were relevant to the criminal trials, but which were not pressed in the proceedings before us, are not included.

110. P21 said by the time she got to Hopscotch she was well affected by alcohol. Her memory from then on was, she said, at times hazy and patchy, and she had lots of blanks in her recollection.

111. Present at Hopscotch were about ten to fifteen people who had been at the Rex Hotel, several of whom P21 counted as friends. In particular P21 was with P3 and P4 (whose evidence will be discussed later).

112. P21 had no recollection of speaking to the respondent at Hopscotch. Rather, she said that she was speaking with her friend, P17, when the respondent grabbed her hand (which was down by her side) and led her away from the group and outside quite forcefully, with P21 repeatedly asking “What are you doing?”.

113. At that time P21 assessed herself as being between an eight and nine out of ten in terms of intoxication. She did not recall drinking at Hopscotch.

114. She said that once they were outside Hopscotch the respondent pushed her against a taxi, opened the taxi door and pushed her inside onto the back seat of the taxi. In the video of her interview with police P21 indicated a motion of two hands 15 pushing her backwards.

115. The respondent gave the taxi driver the address of his apartment.

116. During the drive to the respondent’s apartment the respondent began kissing P21 on the neck. P21 said she did not say anything and did not resist those actions, but she also did not reciprocate.

117. When the taxi arrived at the respondent’s apartment the respondent pulled P21 out of the taxi and led her inside the apartment.

118. She put her handbag on the dining table. She said that the respondent put her on top of a set of four cubed shelves (the cube, marked “Cubed Unit” in Annexure A and marked “E” in Annexure C) and commenced kissing her without P21 reciprocating.

119. P21 said that at this point in time she was “spacy and stumble-y and very drunk”. She said that her timeline was really messy and there were “a lot of bits missing”, but the next thing she recalled was that she was on the cube, the respondent had removed her underwear (which was then on the floor) and he kept trying to perform cunnilingus on her.

120. The respondent then went into the bathroom and returned with an electric toothbrush which he then tried to apply to P21’s vagina. P21 could not remember whether the toothbrush was inserted into her vagina.

121. P21 resisted. She got off the cube and tried to put her underwear back on. The respondent took her into the bedroom and pushed her onto the mattress. The respondent then again attempted to perform cunnilingus on her. Her dress was

15 We did not have the video, but that motion was described in the transcript of the first trial pulled down from the top and the respondent attempted to remove her underwear. P21 recalled some digital vaginal penetration. All of this went on for between five and ten minutes.

122. Whilst on the bed the respondent kept touching and kissing P21’s breasts.

123. P21 resisted. She kept rolling over and closing her legs and the respondent would grab her hips and roll her back, she tried to push the respondent off the bed, grabbed his face and told him to stop, but the respondent kept going.

124. At one point she managed to push the respondent to the floor and said to him “Stop, you’re married. Stop.” She said this after seeing the respondent wearing a wedding ring whilst at his apartment.

125. Eventually P21 was able to get off the bed, grabbed her mobile phone to call an Uber but her phone battery was dead. She found a phone charger next to the bed and plugged her phone in to charge.

126. The respondent kept trying to push her onto the bed, but P21 kept fighting him off, continuously closing her legs, trying to roll away and pulling her dress up.

127. Eventually she was able to use her phone to order an Uber at 2:48am (according to Uber account records) and made a run for the door.

128. As she neared the front door, she said that the respondent grabbed her, threw her against the wall near the door and held her there for a second. The respondent then let her go whilst P21 was yelling “Let me go”. She was able to open the front door and ran out of the apartment. She said the respondent followed her onto the street, but she was able to get into the Uber which had by then arrived (at 2:55am according to Uber account records).

129. At 2:55am (according to phone records), she telephoned her friend, P2, who was then in Melbourne attending a function. The phone call lasted 38 minutes, and continued until after she arrived at her home at 3:03am.

130. P21 did not detail in the record-of-interview what she said to P2 in that conversation other than to say that she “told him everything that happened” and that she spoke to him a couple of days later.

131. In response to a series of questions about the digital penetration and whether there had been other sexual activity (such as penile/vaginal penetration) P21 gave the following evidence: Q335 Okay A I - so, when I got into the cab, I called one of my friends straightaway and told him everything that happened. And so a couple of days later when I was sort of struggling with it, I asked him if, like, it had gone further because my memory got worse. Um, and he said not that I had told him. So that's how hazy my memory was. … Q 337 So you didn't recall what you had told him? A Yeah. Q338 And you were asking him to tell you what you had said? A Yeah. Q339 Okay. A And well because I said, "Do you know if I had sex with him?" he said, "Not that you told me."

132. P21 also said that P2 had telephoned her later in the morning of 1 December, at around nine or ten am. She did not describe that conversation in her record-of-interview.

133. After attending a family function on 1 December 2019, and after prompting by P2, P21 said she spoke to her two best friends, P6 and P5, although those conversations were not detailed in the record-of-interview.

P21’s evidence in the first trial

134. P21’s oral evidence-in-chief at the first trial was broadly consistent with what was contained in her record-of-interview, but the following is worth noting.

135. She said that she has a friendly personality and her actions are often misconstrued as flirting. She said it was not possible that she had agreed to go back to the respondent’s apartment. She said that she had never agreed to go back to a man’s house either before or after 1 December 2019, and she did not like going back to people’s houses.

136. P21 disagreed (with the evidence of P4 contained in the police brief of evidence) that she exited Hopscotch side-by-side without the respondent pulling her, and disagreed they held hands at any point.

137. As far as P21 could recall, she was with a group of people when the respondent walked over, grabbed her hand and then walked away pulling P21 behind him. This continued for the whole distance to the gate which marked the exit of Hopscotch onto the street.

138. In cross-examination she described it as a pull, with her arm outstretched (she indicated her arm was at right-angles to her body) at shoulder height or a bit lower. Her arm was in that position all the way out through the gate.

139. She then said she could not recall being pulled whilst her friends were there, she only remembered the pulling once she was outside (and between the door and the gate).

140. In cross-examination she said she was first pushed against the side of the taxi with sufficient force that someone inside would have noticed the impact she made with the taxi, and that she was pushed with two hands. The respondent then opened the taxi door and pushed or ushered P21 inside.

141. She admitted that she got into the taxi outside Hopscotch willingly, but remembered she did not think the respondent was going to get into the taxi. She remembered thinking that the respondent was possibly sending her home because she was too drunk.

142. Whilst in the taxi, and whilst the respondent was kissing her, she did not recall pushing the respondent away or telling him to stop. Nor did she raise any complaint with the taxi driver. It was put to her that she was kissing the respondent in the taxi but she disagreed.

143. In cross-examination she said that when the taxi arrived at the respondent’s apartment, she thought that he was going to get out and she would continue in the taxi to her home. But, she said, the respondent grabbed her left hand and pulled her out of the taxi. She could not recall giving the taxi driver her address (even though she thought she was going home in that taxi) and could not explain why she said nothing to the taxi driver as she was being pulled out of the taxi.

144. P21 said that she and the respondent held hands as they went from the taxi to the respondent’s apartment. She described her hand being held as follows: Now, holding hands can have a lot of different meanings. It can be a couple who like each other holding hands. Or it can have – or it can be a different kind of holding hands like you described happened at Hopscotch Club. So when you say 'holding hands', what do you mean by that?- It wasn't forceful like at Hopscotch. It was more suggestive but it wasn't – it was somewhere in between the two points that you suggested. Did he let go at all between getting out of the cab and going into his apartment?---I think he did to unlock the door. Yes. So he let go of you to unlock the door to the external door?---I think so, yes.

145. In cross-examination she agreed that she had told her treating psychologist that she had semi-sobered up by the time the taxi arrived at the respondent’s apartment.

146. P21 did not explain why it was that she did not immediately call a taxi or Uber (or charge her phone to do so if the phone battery was dead) to take her to her home.

147. She agreed she first became aware that the respondent was married after she arrived at his apartment. She agreed she became aware of that fact when she and the respondent were in the bedroom, whereupon she said “Stop, you are married”. After she said that, she went to the dining room where her phone was, then asked the respondent for a charger. The respondent then pointed to a charger next to the bed whereupon P20 walked into the bedroom and attached her phone to the charger (it being completely dead at that time).

148. She agreed that at no time during that sequence of events did the respondent attempt to prevent her from doing the things she described. This was distinctly different to her file note in which she said the respondent repeatedly knocked her phone out of her hand or threw her phone away from her.

149. The respondent’s recollection of events (to which I will come later in these reasons) was put to P21 but she did not accept that recollection as being accurate.

150. In relation to the sexual assault allegations, P21 said that she said “Stop” at many intervals during the time at the respondent’s apartment, including when the respondent attempted to touch the electric toothbrush to her vagina.

151. She was asked to elaborate on her assertion that she had been thrown against a wall when trying to leave the apartment.

152. P21 added four markings in red ink to the diagram she had drawn at her record-of-interview. The diagram with those red markings became Exhibit 3. Two of the markings concerned the alleged throwing and holding against the wall. Exhibit 3 is reproduced as Annexure A to these reasons.

153. Against the event the red colouration in the original of Ex 3 does not appear in a reproduction of these reasons, the four markings added by P21 in red ink were: an oval shape just above the rectangle marked “TV”; the curved arrow immediately above the oval and under the words “Front Door”; a stick figure in the room marked “Bedroom” and an “X” immediately above the legs of that stick figure.

154. The red oval related to P21’s recollection that the respondent threw and held her “along that wall at some point”, the red oval representing the “general region” where those acts allegedly occurred. The red curved arrow represented the direction the front door of the apartment opened. The two remaining red markings related to sexual activity and do not concern Charge 2.

155. She said that she could not recall what she told P2 in her 38-minute conversation with him after she left the apartment, but remembered asking him in their phone call later that day what was it that she had told him earlier, and had she said that she had had sex (meaning penile/vaginal penetration) with the respondent. She said she asked that question because she had no recollection whether that type of sexual activity had taken place at the apartment.

156. P21 gave evidence that she did not tell P2 about the toothbrush because, although it was a significant occurrence to her, she found it too embarrassing to discuss. Indeed, she did not discuss the toothbrush with any person other than the police.

157. P21 also recalled asking P2 whether she may have led the respondent on, and whether she may have caused what happened. P21 gave evidence that she spoke to P6 later on 1 December 2019, but could not recall what she told her.

158. She gave evidence of speaking to P5, but the only evidence about that conversation concerned P21’s physical and mental state.

P21’s evidence in the second criminal trial

159. P21 did not give evidence at the second criminal trial. Instead, the prosecution tendered a recording of the evidence she gave in the first trial.

P21’s evidence in the Tribunal

160. P21’s evidence-in-chief was given by way of a copy of her record-of-interview and a transcript of the evidence she gave in the first trial.

161. She was cross-examined before us.

162. P21 agreed in cross-examination that her memory of what took place in the taxi between Hopscotch and the respondent’s apartment was unreliable. Her recollection was that when the respondent kissed her neck (whilst in the taxi) she gave no reaction.

163. Despite the skill of the cross-examiner, the cross-examination produced no evidence of any significance beyond what was contained in the record-of-interview and P21’s evidence in the first trial.

164. I note, however, that when P21 described leaving Hopscotch, she said that the respondent “dragged” her out. P21’s credit

165. An important aspect of fact-finding in sexual assault cases is the credibility of the alleged victim. This is a complex exercise and has been considered at length by 16 various courts and in academic papers.

166. The cross-examination provided us with some opportunity to observe P21’s demeanour. She presented as intelligent and considered. She answered questions directly and without evasion. She gave every indication that she was an honest witness other than (perhaps) her evidence (at the first trial) that it was not possible that she had agreed to go back to the respondent’s apartment because she had never agreed to go back to a man’s house (which is contrary to my factual finding that she did agree to go back to the respondent’s apartment with him). I do not accept that evidence as explained later in these reasons and this matter, in my view, raised a question whether P21 was always honest in her evidence. Having said that, and as the High Court said in Fox v Percy, scientific research has cast doubt on the ability of judges, or anyone else, to tell truth from falsity based on demeanour.

167. The applicant submitted that intoxication explained the incompleteness of P21’s recollection rather than its correctness. This submission was made because P21 described her recollection at times as “patchy”. I accept that submission, but a patchy memory simply explains the absence of recollections of certain events, it does not prevent the making of adverse credibility findings based on, for example, inconsistencies with the evidence of other witnesses, inconsistencies between various versions of events given by the same witness, and versions of events which are inherently improbable.

168. Honesty is one aspect of credibility. The accuracy of perception and recollection of events are additional aspects of credibility.

169. As I explain later below, I do not accept P21 as an accurate historian notwithstanding her appearing to be, in the main, an honest witness. That is, she was not an accurate witness. As was said in Coote, memory is fallible and honest

16 See, for example, the discussion in Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 at [112]-[120] witnesses are frequently in error about the detail of events. I explain later below why I consider P21 to have been an inaccurate and unreliable witness, although the main factors for me were the fact that P21’s version of events between arriving at Hopscotch and arriving at the respondent’s apartment are contradicted in important respects by other witnesses, there were inconsistencies between P21’s recollections of the relevant events at different times, and there were inconsistencies between her evidence and what she told P2, P3 and P4 in important respects.

P2’s evidence P2’s record-of-interview

170. P2 was interviewed by police on 29 July 2020, approximately eight months after the events in question.

171. P2 was a work colleague and close friend of P21 at the time, and had known P21 since about late 2016 / early 2017.

172. P2 lived in Canberra at the time, but on the weekend of 1 December 2019 he was in Melbourne for a private function.

173. At about 2:00am on 1 December 2019 he received a phone call from P21. He said that P21 was in tears and quite distressed. It took about two to three minutes to be able to get any “real information” out of her.

174. He said that P21 told him about the events earlier in the evening up until she got to Hopscotch. SM Morrison gives this conversation much weight, but I do not (for the reasons given later below), and so I set it out here in full for the reader to make their own assessment. He said: Um, this was probably ten minutes or less into being at that venue, [the respondent] took her aside and actually took her out of the venue. They had got into a cab. In this cab, she tells me that she he, um, was kissing her and making advances on her. And she was just a bit surprised and taken aback. I said, "Was this" - like, "Were you initiating this? Is this what you wanted?" But I think she was a bit more on the surprised side and she's - being young and a bit naïve and polite, very kind - she was probably more on the side of, um, too kind to say, "No, stop." And all that stuff. Um, so she went along with it, a little bit of a thing, but was making it obvious that she was a bit shocked and not too keen. They- she wasn't really not sure where she was going or where she was asking where they were going. "What's going on?" They got back to his place and she tells me that he invited her in, took her inside and continued to make these advances. Whilst I don't believe she got naked or they both got naked, and I'm very confident that they did not have sex, I believe that she - ah, whether she was touched inappropriately in various areas, most certainly. I would - because she did tell me, um, that he was essentially feeling her body all over. He would pick her up, put her on the bench and continued kissing her and, ah, she, um, continually had to stop him going down - ah, it was actually from, like, cunnilingus, I guess -the whole time. He - but only if she allowed him to get any further than that, um, and throughout this whole time she was trying to get her phone charged. She was probably most distressed that she was trying to call an Uber and say, "No," like, “I don't want this." And was trying to leave but, um, because her phone wasn't charged, she couldn't contact an Uber or contact any of her friends to help. And she eventually got a charger - got him to get a charger. And he got a charger, got the phone connected, and it takes, you know, two or three minutes before your phone turns on, and I believe in that time, this continued. Once her phone was charged, she got an Uber and got out of that area and got home.

175. P2 told P21 that she should not be alone, and she was “pretty relaxed and a lot more calm” by the end of their conversation.

176. P2 said they spoke again later that morning, at about midday. He said: … the next morning I believe she contacted me again, or a message there going, "Are you okay?" We spoke on the phone again, ah, and that was more of a brief conversation of her going, “What did I say what happened?" And like, "How much did I go in depth?” Throughout the whole conversation that night I wasn't convinced she was heavily intoxicated. She didn't slur her speech or have any issues, um, but the next morning I knew it was all just a big shock, that I don't believe she would remember everything. I told her then and there to write it all down because these events, your brain tries to even not remember it, or it's just foggy from everything that's happened. It's a bit of a shock. I don't think she wrote down then and there but I know she did it later on, recalling as much as she could. And I know she asked me exactly what happened, what I told her on that phone, so she could get a recollection. She also wanted a bit of clarity that she wasn't either overreacting or she didn't really ask for this, or lead him on, or cause it herself and that if - and what she was feeling, that it wasn't exactly a good thing and to what degree she should be upset about.

177. P2 told police he did not get the impression from P21 that the respondent tried to prevent her leaving the apartment. He said that in the first phone call he had with P21 she had no issues with conveying information and did not seem to him to be under the influence of alcohol. P2’s evidence in the first trial

178. At the first trial P2 gave oral evidence that P21 was extremely distressed when she telephoned him early on 1 December. He said there was about two minutes of hysterics and crying, extremely fast breathing and there were no real comprehensible words.

179. He said that P21 told him that she had not been there very long when she was “pulled out of” Hopscotch by the respondent, she was very confused as to why, and she was “pulled out of (Hopscotch) and into a taxi and she was a bit confused by this”. P21 was saying to the respondent things like “What’s going on? Where are we going? Why are we leaving?”.

180. P21 told him that in the taxi the respondent was making advances, kissing P21 and she was very taken aback, she was “very surprised at the time, not really sure where that kind of came from”. P21 told him that she was in shock for the entire taxi ride to the respondent’s apartment. She told him she expressed her disinterest in the respondent’s actions in the taxi.

181. He said that P21 told him that when they got to the respondent’s apartment the advances continued with a bit more emphasis, more kissing, making out, touching. He said he distinctly remembered her saying that the respondent would pick her up and put her on a chest of drawers or something, she would jump down, he would pick her up, put her back on the chest of drawers and she would keep trying to get down. He said he was told there was also the issue that she wanted to go home but her phone had died, so she had to get a charger to charge her phone and there was a lot of back and forth between P21 and the respondent with getting her phone charged.

182. P2 said that he was told that the respondent would try to go down and digitally and orally harass her. P21 told him that the respondent put her on a table top (or something like that) and try and go down and pleasure her, but she repeatedly tried to stop that action. She was continually trying to get the respondent off her and get to a phone charger.

183. P2 could not recall P21 telling him whether she was saying anything to the respondent at the time.

184. P2 could not recall being told about anything else happening in any other room in the apartment or any other events that took place in the apartment. He recalled asking her whether they had sex, to which she said no.

185. He said his next contact with P21 was later that morning, but it consisted only of text messages, and the next week he spoke to her at work.

186. He was asked whether P21 told him about what she had conveyed to the respondent about whether she wanted him touching her. He said he recalled she mentioned that in the taxi she was just shocked and she was worried that she was not really “affirming herself enough” and that she potentially led him on. He said it was one of her biggest concerns that she did not really show that she was not interested and felt like she had brought this on herself because she did not know how to say no.

187. P2 was shown a transcript of his record-of-interview with the police in order to refresh his memory. He then gave evidence that P21 told him that in the apartment P21 had told the respondent “No” and “I don’t want this”.

188. In cross-examination he was taken to his record-of-interview and repeated portions of it. He recalled he had spoken to P21 later on 1 December as distinct from only messaging her.

189. He recalled that when he was told that P21 was pulled out of Hopscotch, “pulled” meant not assertively or aggressively, but that P21 was lead along rather than being pulled or dragged along. He did not get the impression from P21 that she was being led against her will, but rather that she did not know what was happening.

190. He could not recall whether he was told how P21 got into the taxi and could not recall being told that P21 was pushed into the side of the taxi. He said that if he had been told there was force involved, he would have recalled it.

191. P2 was taken to that part of his record-of-interview in which he had said that P21 had told him that when they got to the respondent’s apartment she was “invited in” and the respondent took her inside. P2 said that he was not told P21 was pulled out of a taxi and he recorded having a “blank” between the time the taxi pulled to a stop outside the respondent’ apartment and them being inside. The sense of that evidence was that he was not told anything about what occurred between those two events.

192. P2 said that he could not recall P21 saying anything about anything happening in the bedroom and he believed she had been avoiding the bedroom, although he could not recall being told whether she went into the bedroom or not. What he did recall is being told that P21 did not want to go into the bedroom.

193. P2 said that P21 did not mention to him that she found out whilst in the respondent’s apartment on the night in question that the respondent was married.

194. When asked about the subsequent telephone call on 1 December he said it was: … you know, 'What did I tell you? What did I say? Did I' – like, 'Did I tell you the full extent? How detailed did I go into what happened?'

195. P2 recalled that at different times P21 said to him that she thought she might have led the respondent on, that she caused the events herself, that she may have asked for it (in the sense that she was not forceful enough in expressing her lack of consent) and that she may have been overreacting.

196. P2 said he was not told by P21 that the respondent was married and could not recall anything being said to him about a toothbrush. He did recall on quite a few occasions being told that she tried to stop certain acts along the way including by pulling the respondent away.

P2’s evidence in the second trial

197. P2’s evidence at the second trial was not substantially different from that he gave in the first trial.

198. Of some note is that he said that in the first telephone conversation with P21 on 1 December 2019 she told him that within about ten minutes of arriving at Hopscotch she got pulled aside and pulled into a taxi. She was very confused, she questioned what was happening and she was not quite sure where she was going or if they were going to another party and why they left so soon. He was told that she was just completely shocked by the whole situation. At some point they got back to the respondent's apartment, she realised she was not at a second party or something like that, she was quite alone and she was quite keen to leave.

199. He said that he was told that P21 was lifted up onto a cabinet where she was touched, she was actively trying to leave the area but could not contact anyone because her phone battery was dead.

P2’s evidence in the Tribunal

200. No additional evidence-in-chief was led from P2 by the Board. He was present because the respondent desired to cross-examine him.

201. With no disrespect to the respondent, who conducted the cross-examination, nothing was elicited which was relevant or useful to the matters in issue, and no questions were directed to the content of the conversations P2 had with P21 on and shortly after 1 December 2019.

P3’s evidence P3’s record-of-interview

202. P3 was interviewed by police on 14 August 2020.

203. P3 said that she was a work colleague and friend of P21. She had met the respondent previously in work settings.

204. She said that that she was at the same Christmas party at the Rex Hotel as P21, and accompanied P21 to Hopscotch.

205. P3 saw P21 with the respondent at Hopscotch, and it seemed to her that it was simply basic conversation between them.

206. P3 spoke to P21 about the events of 1 December on or about 3 or 4 December 2019.

207. She said that P21 told her that “she left (Hopscotch) voluntarily with him (the respondent)”, she had probably had too much to drink “because she wouldn’t have gone with him otherwise”.

208. P21 told her that they’d taken an Uber to the respondent’s apartment. P21 told her that her phone had run out of battery and so she could not call anyone and that the respondent “forced himself” on her. P21 told her that she did not want to “do 17 anything”, she wanted to go home but “he persisted”. P21 told her that the respondent forced her down on the bed where he attempted to sexually assault her.

209. P21 told P3 that once she and the respondent had arrived at the respondent’s apartment “she tried to leave and that’s where the alleged assault occurred”.

P3’s evidence in the first trial

210. P3 described P21 as very chatty, very bubbly, very outgoing and very talkative with the people around her. They were good friends.

211. When they left the Rex Hotel P3 observed P21 to be about a six or seven out of ten in terms of intoxication, as was P3. She described P21 at this stage as being able to stay upright and was in control of herself. She, P4 and P21 went to another bar before going to Hopscotch, arriving at about 12:30am on 1 December.

212. On the way to Hopscotch P3 said that P21 had no difficulty communicating with P3 and P4, and had no difficulty walking (in high heels) the 250 metres or so to Hopscotch from the bar they were in previously.

213. Whilst at Hopscotch P3 saw P21 talking to the respondent about 10 metres away from where she was, but she could not hear what they were talking about. P3 did not see them leave.

214. P3 considered P21 to be about six or seven out of ten in terms of intoxication when they were at Hopscotch.

17 The documents says “her” not “he”, but it seems to be an obvious typographical error

215. She spoke to P21 three or four days later. P21 told her that she and the respondent had taken an Uber or a taxi from Hopscotch to the respondent’s apartment whereupon the respondent tried to force himself on her but P21 was not interested. P21 told her there was a bit of a struggle and P21 was shoved against a wall.

216. P21 said that that her phone had run out of charge by the time they arrived at the respondent’s apartment, so she could not contact anyone. At some point she managed to plug her phone in and get some charge and she had managed to flee and arrange transport to get home.

217. Prior to leaving the apartment, P21 told P3 that the respondent had attempted to sexually assault her, that he had put his arms on P21’s body and forced her down onto the bed.

218. P3 agreed that P21 never mentioned that she had been pulled out of Hopscotch, that she was pushed into the side of the taxi, that she was guided into the taxi, that she was pulled out of the taxi when it arrived at the respondent’s apartment block nor that an electric toothbrush was used on her.

219. P3 did not give evidence at the second trial.

P4’s evidence P4’s record-of-interview

220. P4 was interviewed by police on 20 October 2021.

221. P4 was P3’s partner and had met P21 previously quite a few times. He said that he and P3 had become very good friends with P21. He had never previously met the respondent.

222. He recounted the events earlier in the night such as the Christmas party at the Rex Hotel, his subsequent attendance at a bar with P3, P21 and others, and the arrival of himself, P3 and P21 at Hopscotch.

223. At the bar before Hopscotch he assessed P21 as being five or six out of ten in terms of intoxication, but she was coherent and was able to walk to Hopscotch.

224. At Hopscotch he assessed P21 as being six or seven out of ten in terms of intoxication, as was himself.

225. They were all standing around talking and he recalled looking over and saw P21 taking to the respondent a few metres away. He saw them talking for probably five to ten minutes at least. He saw that their interaction was “very friendly”, they were standing quite close to each other and “at times, seemed quite flirty”.

226. P4 saw P21 and the respondent start to make a move for the door and watched them walk side-by-side towards the front gate of Hopscotch. P21 and the respondent both had their phones out, they were walking independently, but were quite close to each other, but there was no hand holding or arm holding.

P4’s evidence in the first trial

227. He recounted the events earlier in the night as set out in his record-of-interview.

228. He recalled P21 walking from the earlier bar to Hopscotch. She walked normally and did not stumble or need any support.

229. He said that shortly before they arrived at Hopscotch he assessed P21 as being five out of ten in terms of intoxication (although he accepted that his memory of that issue would have been better when interviewed by the police). He observed that she was clear and coherent, was able to hold a conversation and was able to organise the logistics (meaning she was able to organise by phone and text message where they were meeting people, arranging the travel from the earlier hotel). He described P21 as being moderately affected by alcohol. He saw that she was able to move around the room, talk with multiple people, she engaged well and was not really hesitating with any answers.

230. He recalled seeing P21 talking to the respondent for about five to ten minutes, they were about five to eight metres away, but he had a clear view of them. He was not paying them particular attention but noticed “small elements and small clues”. He was unable to hear their conversations. It was quite loud in Hopscotch and he could see the respondent and P21 standing quite close together and sort of leaning in (he thought because of the loud noise present at the time).

231. He saw the respondent and P21 make a move toward the door without saying goodbye to anyone at all. They were quite close to one another, although independent of each other. He did not recall any physical connection between them such as hand or arm holding although he could not see their hands for the whole time. He then lost sight of them before they got to the exit gate but could see them walking for about five to six metres before they got to the gate. They were walking side-by-side except for the odd occasion when they needed to squeeze past people. At this time, he saw P21 and the respondent pull their phones out of their pockets, although he could not tell whether they were exchanging numbers or ordering an Uber.

232. In cross-examination he said that he observed that both P21 and the respondent being flirtatious with each other which he described as one person putting their hand on the other’s arm, or around the other’s waist when they were talking, they were leaning into each other and there was mild sort of touching.

233. In re-examination he was asked to describe the behaviour he thought was flirtatious. He said: It was a combination of the leaning in, the sort of laughing while they were explain [sic] things. It just looked quite – quite close and quite friendly from the body language that I observed.

234. He went on to say that P21 was a friendly person, very bubbly, very happy to go and talk to anyone and everyone, and he could see how that could be misinterpreted or “mis-conveyed in certain circumstances”, that it could be misconstrued. The sense of that evidence is that P21’s bubbly and friendly persona could be misconstrued as flirting by someone who did not know her, rather than being misconstrued by someone, such as himself, who was a good friend of P21.

235. In cross-examination he said the distance from the door into Hopscotch and the front gate was about 10-14 metres, and when P21 and the respondent were walking out he lost sight of them about three to four metres from the gate. When he could see them (for the first ten metres or so) P21 and the respondent were side by side for the majority of the time, and he could not recall P21 being pulled along by the respondent. He had a good view of them, but only from about the waist upwards.

P4’s evidence in the second trial

236. P4’s evidence at the second trial was much the same as the first except for the following matters worthy of note.

237. P4 maintained that P21’s and the respondent’s interaction at Hopscotch was “quite a friendly flirty sort of conversation” and they were seated on bar stools at the time. P4 was about six to eight metres from P21 and the respondent at the time.

238. In cross-examination he said they were sitting quite close to each other, they were laughing and smiling but he could see no physical contact between them although there may have been the occasional touch, but nothing significant.

239. When asked for how long he saw them interact he said that it was on and off for 20-30 minutes.

240. When P21 and the respondent left he saw that they were quite close, but he could not see any contact between them. However, he did see that they both had their phones out almost as if they were exchanging numbers or trying to organise a lift home.

241. He could see the upper bodies of P21 and the respondent when they were leaving. He said that he did not see the respondent holding P21’s arm out at 90 degrees from her body i.e. horizontally. He was asked whether he saw the respondent holding P21’s arm at all. He said: No, not – not in any sort of means. They may have been holding hands down lower but I couldn't be too sure.

242. P4 could not see the respondent and P21 once they exited the front gate of Hopscotch.

P5’s evidence P5’s record of interview

243. P5 was interviewed by police on 28 July 2020.

244. P5 was a good friend of P21 in December 2019 and had attended the function at the Rex Hotel. P5 did not go to Hopscotch but went home after leaving the Rex Hotel.

245. P5 exchanged some text messages with P21 later on 1 December in which P21 said that “something really bad happened” the previous night and was telephoned by P21 in the afternoon of 1 December. In that phone call P21 told her “what had happened” (although the description of “what happened” was not set out in the record-of-interview).

246. P5 was told that P21 was quite intoxicated and that the respondent “kind of led her to the taxi and put her in the taxi”.

247. P21 told P5 that she had “wound up” in a taxi with the respondent and gone back to his house and around that time her phone had died. She was trying to charge it, and the respondent tried to initiate something sexual, quite aggressively. He was quite rough and she was pushing him off. P5 said that she did not recall specific details because those events had happened a few months before P5 was interviewed by police.

248. P5 was told that P21 had found a phone charger and managed to charge her phone sufficiently to call an Uber to go home.

P5’s evidence in the first trial

249. P5 gave evidence of events earlier in the evening, and said she believed P21 was intoxicated (about eight out of ten by the time she left) and became a little “giggly”. She said that P21 could handle alcohol better than P5, but gave no evidence as to P21’s observed physical state (such as walking ability, speech etc) from which one might make an assessment as to the effect on P21 of whatever was her level of intoxication.

250. P5 spoke to P21 later on 1 December after exchanging some text messages with her. In that conversation P21 seemed quite distressed. P21 told P5 that she had somehow made her way or wound up at the respondent’s apartment where he tried to initiate some sexual contact which P21 did not want. P21 told her that she was pushed into a bed frame or something hard at the end of his bed. She then tried to leave but her phone was dead, and he tried to prevent her from leaving at one stage. Somehow, she managed to charge her phone and eventually was able to leave the apartment and call an Uber.

251. Later that day P5 went to P21’s home where they “unpacked what had happened”. P5 was not told anything further than that summarised above. P5 did not probe P21 for details. P21 looked like she was in shock. P5 wanted to go to the police (to report the physical assault involving the bed frame, but not a sexual assault) but P21 did not want to do so at that stage.

252. P5 could not recall being told that the respondent had pushed P21 into a wall.

P5’s evidence in the second trial

253. In addition to evidence broadly the same as that given in the first trial, P5 was asked about her phone call with P21 on 1 December. She said that P21 seemed very down and sad and did not sound like her normal self. P5 said that: [P21] told me that she had somehow ended up at [the respondent’s] apartment and things had gotten a bit out of hand and she tried to leave. And she said that [the respondent] tried to stop her leaving and that her phone had died at some point and it had gotten very aggressive and scary. Was there any other details she gave you at this stage?---I believe she said he had pushed her into - I don't know if this was in the phone call or later in the day. Sorry, it's a bit hazy now. But she had said that he'd pushed her into a wooden bed frame and she had hit - he had tried to initiate sexual intercourse and she didn't want to.

254. After that phone call and later that day P5 went to P21’s home and spent a couple of hours with her. All that she could remember being told was that P21 had been pushed onto a bed and into a bed frame, which hurt, and the respondent tried to initiate sex. P21 did not want to have sex with the respondent. P21 tried to leave through the front door but the respondent blocked her from leaving. She could not recall being told anything else other than that P21 was able to charge her phone somehow and was then able to call an Uber to get home. P6’s evidence P6’s evidence in the first trial

255. P6 described herself as very good friend of P21 and was P21’s flatmate as at 1 December 2019.

256. P6 had not been at the social activities at which P21 and the respondent were at on 30 November and 1 December 2019.

257. In her examination-in-chief P6 said that at about 9:00 or 10:00am on 1 December P21 came into her room and said she had something to tell P6. P6’s evidence was: So she came in the room, she sat on the bed, said, 'I have something to tell you. Don't get angry.' She said, 'Last night at the work Christmas Party,' she got really drunk. She – they were at a club. She was led out of the club into a taxi. The other person was very handsy, touching her legs, trying to put their hands up her dress. From there, they went back to the other person's house. When they got there, she said the other person … again being handsy, grabbing her, threw her on the end of the bed. While this was all happening, she was trying to charge her phone so she could get an Uber back home.

258. P6 said that she did not ask for more details about what happened, and P21 did not provide any further detail other than that whilst on the bed the “other person” was very handsy, meaning hands up her dress, and was touching all over P21’s body. P21 was crying at the time of recounting these events.

259. In cross-examination P6 agreed that P21 had told her that as P21 was walking into Hopscotch the respondent was behind her, and it was at that point that the respondent “grabbed or pulled her arm and led her out of the nightclub”. She said that P21 used the words “grabbed” and “pulled” to describe the contact with her arm.

260. She agreed that P21 told her that when P21 was on the bed she was trying to charge her phone, she was pushing the respondent away and saying “No” and that the respondent was trying to stick his hands up her dress and touch her.

261. She said that P21 told her that all sexual activity occurred in the bedroom, but P21 did not mention cunnilingus, digital penetration, the use of a toothbrush and being thrown against a wall.

262. P6 said that over the next few months P21 would tell her that there were things which P21 had not recalled earlier but which were now coming back to her.

P6’s evidence in the second trial

263. P6’s evidence at the second trial differed little from that she had given at the first trial except for the evidence I mention below.

264. By the time of the second trial P6 said she was no longer close friends with P21.

265. P6 said that P21 came into her room about 9:00 or 10:00am on 1 December and said: I remember the first part of what she told me was she was at a nightclub in the city. I don't recall what nightclub it was. She went to walk into the nightclub and she was pulled out of the nightclub and they got into a taxi together. In the taxi he was very handsy, trying to touch her and she was saying he was trying to put his hands up her dress. She was trying to push him away and nudge him away. They went back to his house. She didn't go into a lot of detail of what had happened at the house. She said that he was very handsy in the house as well.

266. In that recollection P6 recalled being told by P21 that she had been pulled from Hopscotch, rather than being led out. She also said that P21 had said that in the taxi P21 was trying to push and nudge the respondent away.

P22’s evidence P22’s evidence in the first trial

267. P22 was the taxi driver who drove P21 and the respondent from Hopscotch to the respondent’s apartment.

268. He could not recall that fare, P21, the respondent or anything unusual about the journey.

269. He said that he had had passengers sitting in the back seat of his taxi kissing each other many times previously. He had never had an experience where two people were in the back seat and one passenger was indicating that he/she did not want to be kissed. 18

270. He had never had an experience of anyone “hitting the side of” his taxi, although 19 rarely someone would be pushed against the taxi. He had no recollection of a woman being pushed against the side of his taxi shortly before the fare from Hopscotch to Deakin. He recalled that when he had been asked by the respondent’s then solicitor in August 2020 whether a lady may have been pushed up against his taxi, or have struck the back of the taxi before the door was opened, he said: No, because definitely something like that that would happen, so I'd definitely inform the police. And there is also taxis – there is also camera footage. I don't recall any kind of thing. If I had noticed, I would definitely inform police straight away at the time.

271. He said that if he had noticed a woman being pushed against his taxi, or being the subject of some unwanted attention in the back seat of his taxi, he would have informed police by pushing an emergency button with which the taxi was fitted.

P22’s evidence in the second trial

272. P22 gave less evidence than he had at the first trial.

273. As he had said in the first trial, he could not recall the particular fare, he could not recall P21, the respondent or anything unusual happening that night.

P24’s evidence P24’s evidence in the first trial

274. P24 was the investigating police officer and gave evidence of the investigations conducted.

275. The only evidence of note for the purpose of these proceedings is the officer’s evidence of a conversation with the respondent’s solicitor on 22 September 2020 (about eight days after the police first spoke to the respondent to advise him that they were investigating the alleged sexual assault).

18 The sense of the answer is of someone’s body colliding with the side of the taxi, as distinct from hitting the taxi with a hand (for example) 19 Quite what the distinction was between someone hitting the taxi and being pushed against it was not explored in P22’s cross-examination

276. As recorded contemporaneously in the police officer’s notebook, the solicitor told the police that the respondent’s recollection of events was: [P21] accompanied Mr Kader back to his apartment from the venue of her own accord/free will. At the apartment they both commenced engaging in consensual intimacy. Shortly afterwards, [P21] observed a photo of Mr Kader's wife and witnessed him trying to discreetly remove his wedding ring. [P21] became upset with him and challenged him about this. After a short verbal argument, [P21] left the apartment. He did not attempt to intervene or impede her departure from the apartment.

277. This conversation is noteworthy because it was given before the respondent was aware of P21’s version of events, and because this remained the respondent’s version of events each time he gave evidence.

Dr Parekh’s evidence in the second trial

278. Dr Parekh was a Senior Specialist in Sexual Health and Forensic Medicine, and a Unit Director Clinical Forensic Medical Services.

279. Dr Parekh provided an expert report for the purposes of the second trial in relation to some bruising alleged to have been suffered by P21 on the night in question. That evidence is not relevant given the way the case was advanced against the respondent before us, but Dr Parekh did provide some evidence on the effects of alcohol on people, and responses to sexual violence. His expertise to give that evidence could not be in doubt given his curriculum vitae.

280. It must be noted that Dr Parekh’s evidence on these two topics was in general terms only. He was not asked to and did not proffer any opinions in relation to P21 specifically.

281. In relation to responses to sexual violence he said there were generally five types of responses that were seen immediately and those responses might vary from person to person. He said you might have a combination of those five responses.

282. The five responses were the freeze response (being wholly or partly frozen in place), the flight response, the fight response, the surrender response and the negotiating response.

283. He said that none of those responses implied any sort of consent to what was happening to a person at the time.

284. In relation to alcohol, he described alcohol as a potent anaesthetic. The effect of alcohol was dose dependent and varied from person to person. He said (emphasis added): We generally start off with a euphoric face initially with drinking, although that - depending on how quickly you drink your alcohol, that might sort of - you might not see that, but it's manifest in that sort of mood typically. And the way that alcohol works is it tends work on the thinking parts of your brain or the grey matter versus the white matter. It tends to work on the conscious thought first and then as the levels go up, go into the primitive brain, so things like your ability to control your movement, so things like slurred speech or not being able to coordinate walking, things like that. And then lastly it affects your hind brain which is where your breathing and your pulse are controlled from and that leads to sort of coma. P20’s evidence

285. P20 was the respondent’s now former wife. She did not give evidence at the first trial.

P20’s transcript of interview

286. P20 spoke with the police on 17 June 2022. A transcript of that interview was tendered by the respondent in the proceedings before us, but, as far as I can tell, it was not tendered in the second trial or on the subsequent sentencing hearing.

287. The only matter of any significance in that transcript was P20’s statement that the dog went with her when she moved from Canberra to Newcastle. P20 did not mention the large cabinet or the dog food box in that transcript.

P20’s evidence in the second trial

288. P20 said that she and the respondent were married in October 2019. She had been in a relationship with the respondent since 2013 or 2014. She separated from the respondent in June 2021.

289. P20 said that she was living in Taree (for work reasons) from the beginning of 2019 until August of 2019, and she then moved to Newcastle (until after December 2019). During those times the respondent was living in the Deakin apartment until February 2020 when the respondent also moved to Newcastle.

290. Whilst P20 was in Newcastle, and before the respondent moved from Deakin, P20 visited the Deakin apartment on only one or two occasions.

291. P20 and the respondent owned a dog. The dog went to live with P20 in Newcastle when she moved there, and visited the Deakin apartment once or twice.

292. P20 said that when she moved to Newcastle she took with her all of the dog’s accessories such as beds, bowls and leads, and nothing was left at the Deakin apartment as far as she recalled. She was certain that the large dog food box went with her to Newcastle, although she could not be certain about all of the dog bowls.

293. P20 gave no evidence as to the presence or absence of the large cabinet referred to by the respondent in the evidence said to support Charge 2.

294. She did recall there was a photograph in the Deakin apartment which had three photographs in one frame: one photo with the dog and separate photos of her and the respondent. She could not recall where that frame was located in the apartment.

295. After the police had contacted the respondent in September 2020, he had told her that he had not had penile/vaginal intercourse with P21 but had had oral sex with her.

296. She said that she was first contacted by the police in 2022. She was subsequently contacted by the respondent in late June 2022 by telephone. She answered one of those calls in which the respondent said that he had read her statement (presumably the transcript of her interview) and that it would put him in jail.

297. After refusing to accept any further phone calls from the respondent, and after texting him to the effect that anything he had to say could be set out in an email, she received the email reproduced as Annexure B to these reasons. P20’s evidence in the Tribunal

298. In the proceedings before us the respondent read an affidavit of P20. P20 was not cross-examined.

299. In that affidavit P20 said that during 2019 she visited the respondent's apartment approximately once every two months. She said that she took the dog (to Newcastle), and the large tub of dog food and dog bowls that can be seen in the photographs in Annexure C to these reasons. However, she said that the white cabinet seen in those photographs remained in the same place where it is seen in Annexure D to these reasons when she last visited the Deakin apartment in approximately December 2019.

Other witnesses

300. The Board tendered testimonial evidence given at one or both of the criminal trials by P1, P9 and P17 (being people who were invitees to the party and were present at Hopscotch, or friends of P21 to whom she later spoke), P23 (the Uber driver who drove P21 home on 1 December), and Dr Quercini (whose evidence need not be discussed and upon whose evidence no party relied).

301. None of those witnesses’ evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of any fact in issue in these proceedings because they had no recollection of any relevant events, nor did their evidence go to the credit of any other witness.

302. No submission was made by either party that any of those witnesses’ evidence was relevant in any respect.

The respondent’s evidence

303. The respondent gave oral evidence at the first and second trials, and in the Tribunal.

The respondent’s evidence in the first trial

304. The respondent said he attended the Christmas party referred to by P21, but he did not know her before that occasion.

305. He left the party and arrived at Hopscotch at about 12:30am on 1 December 2019. When there, he socialised with a few people he knew including P17.

306. Whilst speaking with P17 near the bar, he said P21 walked up to speak to P17 20 (whom P21 knew). P17 then introduced P21 to the respondent. The respondent said he’d been drinking but at that time he was walking, talking, was coherent and rational.

307. He and P21 then found themselves with a group of people. The respondent bought P21 a drink. He and P21 then started talking to each other at the back of (and separately from) the group. He said he thought P21 was rational and coherent at that time although it was clear that she had been drinking. Their conversation related to mainly everyday work-related matters, and the respondent described it as light-hearted, funny, it contained a bit of innuendo and “a little bit of suggestion” together with some light touching on each other’s hip or arm.

308. He said that at the time he was wearing his wedding ring, but the fact that he was married did not form part of their conversation.

309. The respondent said he asked P21 whether she wanted to go to his apartment and she said “yes”. They then left Hopscotch, walking out side by side and holding hands. He denied pulling or grabbing P21. He said they did not say goodbye to anyone they knew at Hopscotch and he could not recall either he or P21 using their phones before getting into the taxi.

310. He said they got into a taxi (P21 doing so voluntarily), and some consensual kissing took place during the trip to the respondent’s apartment. He said P21 was kissing him back and putting her hands on him.

311. When the taxi arrived at Deakin he and P21 exited the taxi (P21 voluntarily). They walked hand in hand up about five stairs to the front door of the apartment building and entered the respondent’s apartment.

20 P17 had no recollection of this interaction

312. After entering the apartment P21 put her bag on the dining table and went to the bathroom (which contained the respondent’s electric toothbrush).

313. After P21 exited the bathroom, she asked the respondent for a phone charger to charge her phone. The respondent told P21 there was a charger on the right-hand side of the bed in the bedroom. P21 went into the bedroom, and he assumed she plugged her phone into the charger.

314. P21 returned from the bedroom, and she and the respondent commenced kissing each other. The respondent said he did not place P21 on the cube, but he took P21’s hand and took her into the bedroom.

315. Once in the bedroom he said that consensual kissing, touching, digital penetration and cunnilingus occurred. He said he thought it was consensual because P21 was moaning, kissing his arm, put her arms to the side when he exposed her breasts, spread her legs and intermittently said “oh fuck”. He said P21 never tried to push him away and never said “stop”.

316. He said he went to take his wedding ring off and whilst doing so P21 saw a photo of the respondent, his wife and their dog which he said was on the bedside table on the right-hand side of the bed. P21 asked who was in the picture. The respondent told P21 who it was and P21 then said something like “Stop, I didn’t realise you were married”.

317. He said it was pretty awkward and he told P21 he needed to go to the bathroom. He did so. He used the toilet, sprayed himself with deodorant and cologne, brushed his teeth and gargled his mouth and tried to make himself somewhat presentable. He said he did this because of the earlier oral sex and because he thought he stunk because he’d been in the pub all night. He was hopeful that P21 would stay.

318. He said when he came out of the bathroom P21 had put her clothes back on, had her phone in her hand and was carrying her shoes. She told him she was leaving and an argument ensued (sometimes being heated) with the respondent trying to convince P21 to stay. P21 told him she thought he was a creep, that she should not have come to his apartment and that she had a good mind to tell his wife.

319. The respondent was then taken through some stills taken from videos of inside the apartment which showed various parts of the apartment and objects present at the time of the videos.

320. The respondent said that P21 swore at him, grabbed her bag and walked out.

321. The respondent was cross-examined about some of the still photos (taken on 11 July 2019) which he said showed a photo (of his wife and dog) on a marble plate which was in the apartment. He then said there was a picture frame with three photos contained within it: one of the respondent, one of his wife (P20), and one of himself and the dog. In the stills these photos were on the left side of the bed, but he said they were on the right side of the bed on 1 December 2019.

The evidence which gave rise to the justice administration offences and Charge 2 in the Tribunal

322. He was then asked about the allegation that he threw and held P21 against the wall near the front door. He was shown Ex 3 and he gave the following evidence-in-chief: MS JONES: All right. Can you see a reddish circle to the left of the dining table?---Yes, I can. All right. Sorry, my eyes don't extend that far. You heard that the complainant drew that as a place where she was pushed against the wall. Did you do that?---No, I didn't. If it occurred at that location, would it have been possible to have been pushed against the wall?---No, it would not be possible. And why is that?---Because there was a large cabinet there, and also the large tub of dog food.

323. The last two answers in that quote constituted the second lie (the second lie) alleged by the Board in the proceedings before us. The respondent has always denied that that evidence was knowingly false when it was given.

324. The respondent was then asked about P21’s recollection of events and, in essence, denied her recollection where it was inconsistent with his recollection.

325. In cross-examination, and in relation to the dog, the respondent gave the following evidence about where the dog was living in 2019: I had to keep the dog in Canberra for the first six months up until I think August. And then after that when my wife moved to Newcastle, she rented a house so then the dog could intermittently go on holidays to Newcastle so I could have a weekend without the dog every now and then.

326. This evidence, to the effect that the dog was living with the respondent (with occasional visits to Newcastle) at the time of the alleged sexual assault was the first lie (the first lie) alleged by the Board in the proceedings before us and is the lie that was admitted by the respondent both before us and in the second trial.

327. The respondent was cross-examined in more detail about the allegation he had thrown P21 against a wall.

328. He was shown Ex 3. He was reminded that P21’s evidence was that the red oval represented the general region where she alleged the respondent had thrown and held her against the wall. He was shown his not-to-scale plan of the layout of the apartment on the night in question (which was tendered and became Ex N in the first trial) and a number of still photos taken from some videos made by the respondent in 2019 but prior to December (which became Exhibit Q).

329. Ex N is reproduced as Annexure C to these reasons. Photographs numbered 5 and 21 6 of Ex Q are reproduced in Annexure D to these reasons.

330. The respondent gave evidence that the video from which those stills were taken was made on 29 April 2019, and that the items depicted in those photographs were present, and in the positions seen in those photographs, on 1 December 2019.

331. In Ex N the front door is at the top left and marked “D1”. The respondent said that the item marked A was “Dog bowls on mat”, B was a “40kg container of dog food”, C was a “bookshelf and drawers” and D was a “Dining table and 4 chairs”.

332. Items A, B, C and D as marked in Ex N can be seen in photographs 5 and 6 of Ex Q.

333. Item B, the dog food box, can be seen in the photos in Annexure D to these reasons. There was no evidence of its dimensions although it seems probable that,

21 They were still photographs taken from a video and the copies tendered were slightly blurry if it were present, it would prevent a person’s feet and lower legs striking the wall immediately behind it, but not a person’s upper body.

334. The bottom corner of the front door of the apartment can be seen in the right-hand photograph in Annexure D in the top right-hand corner.

335. In cross-examination the respondent was taken through Ex N. He then gave the following evidence: So with the door closed, there is certainly room there to push someone against the wall?---Yes. And even if they were close to the dog bowl, if they were pushed, they could be pushed over the dog bowl?---Yes. And so when you said no, it would not be possible to be pushed against the wall in that area, that was incorrect?

336. That last question was not answered because there was an objection. After that objection was resolved the cross-examination continued as follows: MR LEE: I have attempted to make it clear that when you were shown Exhibit 3, and the circle of – attempted to make it clear that the complainant's evidence was that circle was the general area in which she was pushed. It wasn't the exact area she says she was pushed, just the general area?---Yes, I understand. Do you understand that?---I understand that. Yes. And the question is, looking at – when the door is closed, as we can see in photograph 6 of Exhibit Q?---Yes. Yes. There is an area where somebody could be pushed against the wall?---Yes. Both right next door to the dog bowl?---Yes. And even over the dog bowl?---Yes. So do you accept it is possible that someone could be pushed in against the wall in that area?---In the area, yes.

337. The significance of that evidence is that the respondent readily admitted that there was an area along the wall where it was possible to push someone against the wall (both next to and over the dog bowl).

338. It was the respondent’s evidence quoted at [322] and [325] above upon which the perjury aspects of Charge 2 in these proceedings were based and which were critical to the attempt to pervert the course of justice aspects of Charge 2. The respondent’s evidence in the second trial

339. An audio recording of the respondent’s evidence from the first trial was played as part of the prosecution’s case in the second trial. The respondent was then called as a witness in his own defence.

340. At this second trial, it will be remembered, the respondent pleaded guilty to Count 7 which was that on 3 March 2022 at Canberra he had made a false sworn statement in a legal proceeding being reckless about whether the statement was false.

341. In the prosecution’s opening address, the particulars given in relation to Count 7 related to where the dog was living as of 1 December 2019. The prosecution did not particularise a case (so far as I am aware from the material given to us), that the respondent also lied about the presence of the large cabinet and large tub of dog food.

342. The respondent did not give any oral evidence-in-chief about the sexual assault, presumably being content to rely on his evidence from the first trial (tendered by the prosecution) and whatever evidence he gave in cross-examination. He was cross-examined at some length about the sexual assault but the answers he gave were consistent with his earlier evidence.

343. He was however asked some questions about the justice administration offences. Whilst in evidence-in-chief the respondent gave a number of answers which seemed to contradict his plea of guilty to Count 7. The jury were sent out and much discussion was had with the presiding judge. During that discussion the respondent attempted to make clear that he admitted to lying about where the dog was living. In later cross-examination he said he’d only told one lie (being the first lie) and admitted doing so. He was challenged to the effect that he’d lied about the dog food box (part of the second lie) and, whilst accepting his recollection may have been incorrect about the dog food box being present (because P20 had given contrary evidence), he denied that his evidence on that matter was lie.

344. A number of propositions were not put to the respondent in his cross-examination.

345. It was never put to the respondent in cross-examination that he’d lied about the presence of the large cabinet (the other part of the second lie), although it was put to him that he had lied about the presence of the dog food box. Perhaps this was because P20 had given no evidence on the presence or absence of the cabinet in 22 her evidence.

346. It was never put to him that his evidence that he could not have thrown P21 against the wall where the large cabinet was present was a lie, and it was never put to him that, if the large cabinet was present, it would still have been possible to have thrown P21 against the wall at that position.

347. It was never put to him that he had tried to convince P20 to change her evidence insofar as it related to the second lie. More than once it was put to the respondent that he’d tried to convince P20 to “change her evidence about the dog”, but it was not put to him that he had tried to change her evidence about the dog food box.

348. The statement P20 provided to the police (by way of a transcript of an interview with police) does not appear to have been tendered in the second trial as far as I can tell from the materials given to us, nor on the sentencing hearing, but it was tendered before us. That statement does not mention either the large cabinet nor the dog food box.

349. Thus, in terms of evidence from P20 of which the respondent was put on notice by the service of the transcript of interview, that evidence made no mention of the large cabinet or the dog food box.

350. The respondent was cross-examined about his statement in his email to P20 that “[t]here were one or two things that I stated in my evidence that wasn't true”. He said the first thing was the admitted lie (the first lie) and he was asked what the second thing was. The question and answer were as follows: So what is the second thing?---So the second thing - if you go to the - the reason it's 'one or two things' is because, you know, I wasn't really too sure what the second - whether it was true or not and there's a line that says, 'I told the court that I packed up the dog crate and put it in the storage area 22 There was a general question at the end of the cross-examination that he had “lied about other parts of (his) evidence”, but it had been put to him he’d lied about a number of matters in addition to the first lie and part of the second lie of my unit because the dog was sleeping in the bed and it wasn't being used, not that it went to Newcastle.' So, if I had told the court that, that may or may not have been a lie because my recollection was we had two dog crates but the more I think about it we may have only had one and unfortunately, if we had - well, [P20’s] parents have, like, four dog crates, so if we had two of them, one of them was borrowed from them which meant that she would know the answer and I actually didn't know.

351. Whatever may be made about that answer, its subject matter was a dog crate, and not a dog food box or a large cabinet.

352. At the second trial there were a number of agreed facts set out in an “Agreement As To Facts” which was tendered and became Ex O. That set of agreed facts referred to evidence the respondent had given as to where the dog was living. It said nothing about any evidence given in relation to the large cabinet or the dog food box.

353. I note that the prosecution did not address the jury to the effect that the second lie was proved, nor that the respondent had tried to convince P20 to change her evidence (if there was such evidence) about the large cabinet and dog food box. Rather, the prosecution’s address was focused on the first lie (which was admitted) and whether the respondent had tried to convince P20 to change her evidence about the subject matter of the first lie. That position is confirmed when one reads the Chief Justice’s summing up to the jury at the end of the second trial.

354. The absence of the cross-examination I have identified above, and the absence of any address to the jury on the alleged second lie, is not to be taken as any criticism of the prosecution. From the materials before us there does not appear to have been any basis for cross-examination on those topics and no basis for an address on the second lie.

355. Rather, I have identified the cross-examination and the address matters above because they have relevance to assessing the persuasive value of the sentencing remarks in Kader (No 6) in which it was found beyond reasonable doubt that the respondent had told the second lie, and the persuasive value of the Court of Appeal’s judgment in which it rejected the appeal from that finding. I will come to those matters later in these reasons.

356. It is true that the prosecution addressed the jury to the effect that there was no dog food box in the apartment (and against the wall) on 1 December 2019. That is, that the jury should accept P20’s evidence on that factual issue and not the respondent’s evidence. There were also some general statements to the effect that the respondent’s evidence was improbable, was a product of fantasy, that his evidence lacked credit, it was unreliable and it was dishonest. But there was no address directed specifically to the second lie and directly addressed to the presence or absence of the large cabinet.

The respondent’s evidence in the Tribunal

357. The respondent relied on a witness statement. It repeated evidence he had given in the two criminal trials (although not all of it) and it was not substantially different to that earlier evidence.

358. In that statement (as well as in submissions) he admitted to the first lie.

359. In cross-examination he maintained that the large cabinet was present on 1 December 2019.

360. He said his recollection was that the dog food box was also there, but because P20 had such a firm recollection that it was not, he became less sure of his recollection. Later in his cross-examination he said: WITNESS KADER: Yes. I mean, I still partly think it was there, but [P20] was certain that it - it wasn't. We had three of them, and - no, I've just got no idea anymore.

361. Later still he said: WITNESS KADER: No. My evidence is I've got no idea anymore. My recollection is that I took two tubs of dog food to Newcastle and I kept one. My - my evidence is that I think [P20] is wrong on that, but, equally - well, I think she's wrong, but, you know, it's - I - you know, I can't, you know -she says she's certain. Okay. Well, maybe I'm wrong, but I thought it was there, and - yes, I don't know. That's - yes.

362. In relation to the dog food box, and despite P20 saying nothing about it in her record-of-interview, he knew P20 was going to be a witness in the second trial and could contradict his evidence about where the dog lived, and possibly contradict his evidence about whether the dog food box was in Canberra or Newcastle.

363. He admitted telling his lawyers untruths in that he told his lawyers that the dog was living with him in Canberra.

364. He also said that the evidence he gave in the second trial of facts relevant to the charge of attempting to pervert the course of justice was “not credible”. He had pleaded guilty to the perjury charge at the beginning of the second trial but had pleaded not guilty to the attempt to pervert the course of justice charge. It was after the second trial, and when the sexual assault charges were dropped, that he entered a plea of guilty to the attempt to pervert the course of justice charge.

365. What was not credible was explained by him as follows: ACTING PRESIDENTIAL MEMBER: I'm just trying to find out, you said, 'My evidence at the second trial was not credible'. WITNESS KADER: Yes. ACTING PRESIDENTIAL MEMBER: I'm just trying to find out what evidence it was that you gave that you tell us now was not credible. WITNESS KADER: Practically everything I said when I was trying to talk my way out of why I had sent the email, why I had contacted [P20], and why I was keen to get her to speak to my lawyers, is - I mean, there's lots of reasons why you would do this, but the - the reason that you tell yourself, to make yourself feel good, is that you're doing it to get your - get [P20] out of the proceedings and that sort of thing. That may be five or 10 per cent of it, but the other 90 per cent is that you are - you're coercing and pressuring her, and that was the - - - ACTING PRESIDENTIAL MEMBER: Yes. For your benefit. WITNESS KADER: Yes. ACTING PRESIDENTIAL MEMBER: Well, hopefully for your benefit. WITNESS KADER: Well, yes. Yes. So it was to - I mean, to cover up my lie. So, yes. I'm sorry, that's - - -

366. What seems tolerably clear from that evidence is that the respondent was saying his evidence about the email he sent to his former wife was not credible, as distinct from his evidence about the alleged sexual assault. The respondent’s credit

367. Overall, and for the reasons that follow, I have approached the respondent’s evidence with much caution.

368. The respondent is an admitted perjurer. He admitted to attempting to pervert the course of justice, he admitted lying to his solicitors when it suited his purposes and he admitted that evidence he gave in the second trial (as described at [365] above) was “not credible”.

369. His answers that I have quoted above suggested that “not credible” may understate the position, but no stronger proposition was put to him in cross-examination and so I should not infer more than he admitted. Suffice to say, his admission that he gave non-credible evidence when giving evidence on an earlier occasion was damaging to his credit in the case before us.

370. In his favour is the fact that he did volunteer that admission to us, which is some indication that he was being honest in his evidence before us, and I have taken that into account.

371. It must also be noted, adverse to the respondent’s credit, that he admitted that sending the email to P20 amounted to asking her to do something unethical, and that he had been advised by his lawyers not to contact P20 but nevertheless did so.

372. As explained later below, and despite those credit issues, I consider his version of events in his apartment to be the more credible. That is because his version is consistent (in important parts) with other witnesses, is (in important parts) inherently probable, is (in important parts) consistent with the objective evidence and because I do not accept the accuracy of P21’s evidence.

Admissibility and weight of the sentencing remarks and the Court of Appeal’s judgment

373. The sentencing remarks of the Chief Justice, and the agreed Statement of Facts placed before her Honour, together with the Court of Appeal’s judgment and a Certificate of Conviction, were tendered by the Board in the present proceedings as evidence in support of the Board’s case that the second alleged lie was indeed a lie, and that the respondent had attempted to coerce P20 to change her evidence in relation to its contents.

374. Indeed, the Board’s case in relation to the non-admitted parts of Charge 2 was predominantly based on the sentencing remarks and the judgment.

375. The Board cited Medical Board of Australia v Qazi [2024] SACAT 80 (Qazi) at [24]-[26], which in turn cited Carpenteri v Registrar of Firearms [2021] SASC 27 (Carpenteri) at [30], as authority for the proposition that convictions based on findings made beyond reasonable doubt would generally constitute a sound basis on which to proceed in administrative proceedings.

376. In South Australia at the time, section 39(1)(b) of the South Australian Civil and Administrative Act 2013 (SA) (the SACAT Act) said (emphasis added): 39 Principles governing hearings (1) On the hearing of any proceedings, but subject to the provisions of a relevant Act— (a) the procedure of the Tribunal will, subject to this Act, be conducted with the minimum of formality; and (b) the Tribunal is not bound by the rules of evidence, may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal (insofar as may be relevant to the proceedings before the Tribunal), and may otherwise inform itself as it thinks fit; and (c) the Tribunal must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms. (b) the Tribunal is not bound by the rules of evidence, may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal (insofar as may be relevant to the proceedings before the Tribunal), and may otherwise inform itself as it thinks fit; and …

377. There is no equivalent to section 39(1)(b) of the SACAT Act in the ACAT Act.

378. In Carpenteri the Chief Justice said at [30]: Plainly enough, findings made by a court in criminal proceedings are generally reliable. However, it will not always be appropriate to adopt them in administrative decisions which are made under legislative schemes calculated to protect the public. The purpose of criminal proceedings is the conviction and punishment of offenders and the exoneration of the innocent. Convictions are generally based on findings made beyond reasonable doubt. They may therefore constitute a sound basis on which to proceed in schemes calculated to protect public safety. However, on sentencing, the prosecution may not be in a position to prove an aggravating circumstance beyond reasonable doubt, but the evidence of that circumstance may be sufficient to deny an offender a licence. An offender carries the onus of proving on the balance of probabilities a mitigating factor affecting his or her sentencing. However, the prosecution, or the Court, may for a number of reasons take a generous view of the evidence which favours the offender. The decisions of the Director of Public Prosecution as to whether or not to accept a factual basis for a guilty plea will be affected by a range of considerations appropriate in the discharge of the Director’s prosecutorial duties, but which may not adequately serve the public interest in the exercise of the protective powers under the Firearms Act.

379. That passage in Carpenteri has not, so far as my research has revealed, been cited in any other case. Nor, for that matter, has the passage from Qazi cited by the Board. Be that as it may, I do not read Carpenteri as expressing any principle of law. Rather, it was an observation, perhaps a common sensical one, made in the context of the existence of section 39(1)(b) of the SACAT Act.

380. It must first be observed, as the Board correctly accepted, that we were not bound by any findings in the sentencing remarks nor the judgment of the Court of Appeal. Rather, in the Tribunal proceedings, those remarks and judgment are no more than evidence led in support of the Board’s case that the respondent committed the second lie. The question is what weight, if any, I give to those remarks and the judgment.

381. Under the Evidence Act 2011 the sentencing remarks and the Court of Appeal’s judgment would not be admissible. However, the Evidence Act does not apply to the Tribunal, and the Tribunal is not bound by the rules of evidence.

382. Nevertheless, in assessing what weight, if any, should be given to them, it is useful to note the following.

383. Where the Evidence Act 2011 applies, evidence of a decision, or of a finding of fact, in an Australian or overseas proceeding, is not admissible to prove the 23 existence of a fact that was in issue in those proceedings.

384. Section 92 provides an exception to section 91. Most particularly, section 92(2) says that in a civil proceeding section 91 does not prevent the “admission or use of evidence” that a party has been convicted of an offence.

385. The position in NSW is that under the NSW equivalents of sections 91 and 92 the conviction of the respondent is admissible evidence of the elements of the offence, but the detailed facts found by a sentencing judge (or the Court of Appeal if there be an appeal) are not. That is, facts found in either or both of those courts cannot support findings by the Tribunal as to what the respondent actually did, 24 beyond the bare elements of the offence with which he was convicted. The position in the ACT has not been authoritatively determined, but I will assume it to be the same as in NSW.

386. In this case the Certificate of Conviction is not of much use to the Board’s case. It simply states that the respondent was convicted on one count of perjury and one count of attempting to pervert the course of justice. The Certificate does not set out any facts underpinning the conviction.

387. The rationale for the NSW equivalents of the provisions of the Evidence Act that I have mentioned was described by Campbell J in Gonzales v Claridades [2003] NSWSC 508. In that case his Honour said that, but for section 92, the hearsay rule, and possibly the opinion rule, would apply to a conviction because such would be a representation made otherwise than in the course of giving evidence. His Honour went on to say, as other judges have said, that a conviction merely proved what another court, acting on evidence unknown to the court hearing the civil proceedings, was of the opinion that the accused was guilty of an offence.

388. His Honour’s comments are relevant because the object of the rules of evidence, and the provisions of the Evidence Act, is to produce relevant, logically probative,

23 Evidence Act, s 91 24 The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 per Hodgson JA at [9], Tobias JA agreeing reliable and testable evidence. As Evatt J said in R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30 at 256: After all, [the rules of evidence] represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer “substantial justice.”

389. Taking those matters into account, and for the reasons that follow, I do not consider any weight should be given to the sentencing remarks and the Court of Appeal’s judgment.

390. In Kader (No 6) the Chief Justice made a factual finding that the respondent committed the second lie. As I read the sentencing remarks her Honour said nothing about the respondent attempting to pervert the course of justice in relation to the second lie, presumably because, as I read the material from the second trial, there was no such allegation and the agreed facts tendered to her Honour did not address that topic.

391. The second lie had three parts: the presence of the large cabinet; the presence of the dog food box; and the respondent’s opinion that the presence of those items would not have allowed the respondent to have thrown P21 against the wall in the general area she indicated on Ex 3.

392. The Chief Justice based her Honour’s conclusion that both the large cabinet and dog food box were not present on 1 December 2019 on the “overwhelming weight of the evidence of” P20, supported by the respondent’s email which provided “a telling account of a series of deliberate lies”.

393. I am not persuaded that I should give the sentencing remarks any weight for the following reasons.

394. First, P20 did not mention the large cabinet in her evidence at the second trial. Contrary to the finding, there was no “overwhelming evidence” given by P20 that the large cabinet was not present on the night in question.

395. Second, the “overwhelming evidence” of P20 in relation to the dog food box was P20’s evidence to the effect that she had a clear recollection that the dog food box went with her to Newcastle. No objective or corroborative evidence was tendered to support that statement. In the absence of being in a position to observe P20’s demeanour when giving evidence, an advantage available to the Chief Justice, I would not have described that simple recollection evidence as “overwhelming” in the absence of any corroborative evidence or inherent probabilities.

396. It is true that logic would suggest that a dog food box would go with the dog, but the respondent said there were three such boxes and there was uncontradicted evidence that the dog did visit Deakin. Therefore, it is plausible that the respondent mistakenly recalled that a dog food box remained at Deakin for the times the dog would visit, thus saving the trouble of packing one to travel with the dog.

397. Third, it was never put to the respondent in cross-examination in the second trial that he had lied about the presence of the large cabinet, nor that he had lied in asserting that the presence of the cabinet and dog food box would not have allowed him to throw P21 against the wall.

398. A general proposition was put to the respondent at the end of his cross-examination to the effect that he had tailored his “entire story” or “parts of his evidence”, but there was no specific question directed to his evidence that it would not have been possible to throw P21 against the wall in the general area she indicated. I have taken into account the importance of the rule in Browne v Dunn (1893) 6 R 67 in criminal cases as explained in MWJ v R [2005] HCA 74 and Khamis v Regina [2010] NSWCCA 179.

399. Fourth, in the sentencing remarks parts of the email were, as I read the remarks, misconstrued. Her Honour said (emphasis added): In that email, the offender said that the main thing in his evidence that was not true was about the dog, saying, 'I gave the evidence knowing that the only person that could possibly contradict me was you,' and later saying, 'I have provided an old photo with the dog bowls and dog food to deliberately fill the wall with stuff.'

400. I read the email differently. What the email said in relation to the emphasised passage in the quote above was: The statement of facts the prosecution has currently offered states: They shared a dog named Schnitzel that initially lived in Canberra with Dr Kader. When [P20] moved from Taree to Newcastle in mid- 2019, the dog Schnitzel moved to Newcastle and lived with [P20]. We can't agree to that going to the jury because the prosecution will simply argue that the dog had moved, the crate was gone and I have provided an old photo with the dog bowls and dog food to deliberately fill the wall with stuff. It will be obvious that I have lied under oath, my credibility will be gone and I'll be convicted.

401. The difference is that the email said that the prosecution would argue that the respondent had filled the wall with stuff (to summarise), whereas, as I read the sentencing remarks, the Chief Justice was saying that the respondent had said those things and that they were not true.

402. Fifth, the Chief Justice said (emphasis in original): In his email to his former wife, the offender said: I explained that when we moved from leppington we went from a 5 bedroom house to a 1 bedroom unit and we left some boxes of stuff in my mum's garage, including a spare dog crate, a pile of leads, additional dog bowls, a bed and all sorts of things because the dog is spoilt so there was no need to take anything from Canberra when you moved to Newcastle and the dog was still visiting Canberra so I left the dog bowls lying there for when she was there.

403. I cannot quite discern what significance the Chief Justice drew from that evidence because the following passages concerned different, albeit connected, topics. But if I read that passage as suggesting the respondent’s evidence about the dog bowls was not credible, P20’s evidence about them was equivocal. In her evidence about the bowls in the second trial P20 said (emphasis added): What I want to suggest to you is that those dog bowls and that large tub of dog food did not, in fact, come with Schnitzel when Schnitzel moved to Newcastle in August 2019?---My recollection is that the large black tub of dog food did come up to Newcastle. All right?---The bowls – sorry. Sorry, you continue?---The bowls I cannot be as certain of but the black tub certainly came up.

404. P20 agreed in the second trial that she had spoken to the respondent’s lawyers on 1 July 2022 and told them that she could not remember whether the dog bowls had travelled with the dog to Newcastle, and that that was the truth. On balance, P20’s evidence about the dog bowls was not contradictory of the respondent’s recollection that some dog bowls remained at the Deakin apartment.

405. Sixth, the Chief Justice said that the respondent acknowledged that “parts of his evidence ‘wasn’t true’”. Her Honour said (emphasis in original): In the email, he acknowledged that parts of his evidence “wasn’t true”. Commenting on an agreed fact as to the dog’s living arrangements based on his former wife’s statement to police, he wrote: We can't agree to that going to the jury because the prosecution will simply argue that the dog had moved, the crate was gone and I have provided an old photo with the dog bowls and dog food to deliberately fill the wall with stuff. It will be obvious that I have lied under oath, my credibility will be gone and I'll be convicted. (Emphasis added.) The email attached the photographs of the area near the door and of the dog bowls so that his former wife could “see the layout”. The only reasonable inference is that he wanted to ensure her evidence concerning the dog items matched his so that his false evidence was not questioned.

406. I do not read the email the same way. Preceding the passage from the email quoted by the Chief Justice was a passage which provides the context for what followed. I have set out the whole passage at [400] above.

407. As I read the whole passage, in the context of the whole email, the lie the respondent said would become obvious was the lie that the dog was living with him, rather than with P20 in Newcastle. That is consistent with the fact that P20’s transcript only mentioned where the dog was living and did not mention the cabinet or the dog food box.

408. Seventh, the Chief Justice placed some reliance on the respondent’s email which her Honour said contained “a telling account of a series of deliberate lies”. None of those lies were identified (with the exception of the first and second lies), and no reasons were given explaining why any identified statements (assuming they were in addition to the first and second lies) were found to be lies. In the absence of the identification of the alleged lies and reasons explaining why her Honour considered them to be lies, I do not consider it appropriate to give that conclusionary statement any weight.

409. Eighth, the only mention of the large cabinet in the email was where the respondent was describing the evidence he gave, namely where he said (emphasis added): I said that her version of events was not possible because there was a cabinet and a large tub of dog food in the area that she claimed I threw her into the wall.

410. Nowhere in the email is there any statement to the effect that that evidence about the large cabinet was incorrect and was a lie, and that part of the email reads to me as a simple communication to P20 of the evidence that the respondent had given.

411. Ninth, before us, but not before the Chief Justice as far as I can tell, was a copy of P20’s transcript of her interview with police. It only mentions the dog’s living arrangements (in Newcastle and not in Canberra) and does not mention the large cabinet nor the dog food box. In my opinion that transcript provides significant context in which to understand what the respondent was intending to convey in his subsequent email to P20. That is, a different complexion is cast on the contents of the email when one has the document that precipitated it.

412. Tenth, in these Tribunal proceedings we had the uncontradicted evidence of P20. Photos showed the large cabinet at the apartment as late as April 2019 (attached as Annexure D to these reasons), and P20 said that the same cabinet was where it is shown in the photos when she last visited the apartment in December 2019. The only reasonable inference to draw, especially in light of the absence of any suggestion or evidence that the cabinet was temporarily moved from that position on 1 December 2019, is that the cabinet was where the respondent indicated on the night in question.

413. No demeanour-based observations were recorded by her Honour in the sentencing remarks and which may have been relevant to credit, although the subtle influence of demeanour may be assumed. The Chief Justice had the opportunity to observe the respondent when cross-examined on these matters in the second trial and her Honour had audio of his evidence from the first trial in which the second lie was said to have been committed. We had neither and in that regard the Chief Justice enjoyed an advantage we did not have. But I keep in mind that which the High Court said in Fox v Percy, and Justices David Ipp and Peter McClellan (amongst others) said when writing extra-judicially about too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses when giving their oral evidence.

414. On balance, and contrary to the Chief Justice’s finding, I find that the large cabinet was present and in the position as described by the respondent on 1 December 2019 and as appears in the photographic evidence.

415. It follows that the respondent’s evidence that he could not have thrown P21 against the wall in the area occupied by the large cabinet could not have been a lie given the apparent dimensions of the cabinet and given it was never put to the respondent, in the criminal trials, nor before us, that the cabinet would not have prevented that action occurring.

416. The Chief Justice found that the dog food box was not present on 1 December 2019. On balance, I agree with that finding. Although not overwhelming, I think P20’s evidence makes it more probable than not that the dog food box went to Newcastle with the dog, but I am not comfortably satisfied given the seriousness of the allegation that the respondent lied, as distinct from being mistaken, when he said it was present on 1 December.

417. What is also significant to me is that the evidence that he could not have thrown P21 against the wall in the general area indicated was given in evidence-in-chief. In doing so he was being shown P21’s handwritten not-to-scale drawing. A cursory glance at the photos tendered shows that there was space near the door unobstructed by any objects, the respondent readily conceded in cross-examination that it was possible for P21 to have been pushed against the wall next to the door and also above the dog bowls, and it is obvious that the same could be said for the wall above the dog food box because of its apparent short height. Those readily accepted concessions, when viewed in the broader context of how the respondent was questioned on this issue, suggest caution should be exercised in concluding that the respondent’s initial statement was a lie.

418. Overall, I am not persuaded by the sentencing remarks that the respondent lied when he gave evidence that the dog food box was present.

419. The respondent appealed from his sentence.

420. One ground of appeal concerned the large cabinet. The ground of appeal was: On the evidence before the Court in the sentencing proceeding, her Honour erred in finding either or both of the following as matters of fact beyond reasonable doubt: (i) No large cabinet either existed or was in the appellant’s apartment at the time of the alleged sexual offences; and (ii) That the appellant lied in his evidence that a large cabinet was placed against the wall into which it was alleged he pushed the complainant of the alleged sexual offences, or that it existed at the time of those alleged sexual offences.

421. The Court of Appeal dismissed that ground.

422. The Court of Appeal’s reasoning was, as I read the judgment, limited to the drawing of an inference from the fact that the respondent mentioned the large cabinet in his email.

423. The Court’s reasoning was encapsulated in the following passage: [84] As counsel for the Director observed, in the first trial, the complainant could not recall the large cabinet being against the wall, even after being shown the photographs tendered by the appellant. The appellant’s oral testimony was the sole evidence that the cabinet was against the wall on the night of the alleged sexual offending. Importantly, in his email to former ex-wife, the appellant stated: There were one or two things that I stated in my evidence that wasn’t true. The main thing was regarding the dog… I said that her version of events was not possible because there was a cabinet and a large tub of dog food in the area that she claimed I threw her into the wall. [85] As the Director’s counsel submitted, it was open to the primary judge to draw an inference that the appellant’s evidence regarding the presence of those items was false. In particular, unless the appellant was being untruthful about the cabinet, there was no reason for him to refer to the cabinet in his email to his ex-wife. [86] Further, it was well open to the primary judge to conclude that although the “main thing” that the appellant lied about was the dog items, the appellant’s reference to the presence of the cabinet as well as the dog items in the email is an indication that his lie also extended to the cabinet. As the Director’s counsel submitted, in an email describing his false evidence, “one may wonder why the appellant would refer to the presence of the cabinet if that aspect of his evidence was not [also] false”. [87] The appellant has not demonstrated that the primary judge’s finding concerning the presence of the cabinet was not open. This ground of appeal should be dismissed.

424. With great respect, I am not persuaded by that reasoning.

425. First, as I have mentioned earlier, we had the transcript of P20’s interview with police (which the Court of Appeal did not) and in which there was no mention of the cabinet and dog food box. The email was precipitated by that transcript and should be read in that context.

426. Second, as I read the email, the respondent’s reference to the cabinet was in a passage where he was doing no more than recounting to P20 the (full) evidence he had given in order to explain the relatively “simple” issue he referred to in the first sentence. The passage was (emphasis added): The issue relating to the dog is relatively simple. The complainant alleged that as she was trying to leave the apartment, I grabbed her, pulled her back and threw her into a wall. She then claimed that she got to the door, opened it, yelled out let [sic] me go then I chased her to an Uber. I denied doing this. I said that her version of events was not possible because there was a cabinet and a large tub of dog food in the area that she claimed I threw her into the wall. There was also some dog bowls against the wall. I provided a photo out of one of the videos I had taken of the dog. The attached images "near door" and " dog bowls" are what was submitted as evidence. You can see the layout.

427. The Court of Appeal reasoned that unless the respondent was being untruthful there was no need to mention the cabinet. I disagree. Whilst there may not have been a need to refer to the cabinet, the respondent was not a lawyer drafting a legal document. He was a non-legally qualified man indisputably under stress trying to describe to P20 what he regarded as relevant circumstances before coming to his request. There are other matters in the email which were not lies but which were part of the overall picture, namely the reference to P21’s evidence and the dog bowls.

428. Third, the inference that the evidence about the presence of the cabinet was a lie was drawn in the absence of it ever being put to the respondent in cross-examination and the absence of any evidence being given about the presence of the cabinet by P20.

429. Fourth, the prosecution had called P20 who one would have thought could have given evidence about the presence or absence of the cabinet, and no evidence was elicited from her by the prosecution.

430. Fifth, P20 gave evidence in these Tribunal proceedings that in December 2019 the cabinet was in the same place shown in the earlier photos (as of April 2019). The Court of Appeal did not have that evidence.

431. For those reasons I are not persuaded that I should give any weight to the Court of Appeal’s judgment that the large cabinet was absent on the night in question, nor that the respondent lied about its presence. In my opinion, the large cabinet was where the respondent said it was on 1 December 2019, and he did not lie in his evidence when he said that it would not have been possible to have thrown P21 against the wall in the area of the large cabinet.

Decision The alleged sexual assault

432. I have mentioned earlier the NSW Court of Appeal’s observation that it often occurs that important issues of credibility involve sub-issues, and the resolution of sub-issues with the assistance of objective facts, or facts that are probable, may 25 assist in the resolution of ultimate factual issues.

433. Important sub-issues here are the factual disputes as to P21’s level of intoxication at Hopscotch, what interaction (if any) occurred between P21 and the respondent whilst at Hopscotch, the circumstances in which P21 and the respondent left Hopscotch, the circumstances around catching the taxi, what happened in the taxi, and how P21 and the respondent left the taxi to get to his apartment.

25 Coote at [29], cited with approval in Gautam at [24]

434. In relation to all of those sub-issues, discussed below, substantial parts of P21’s recollection of events was contradicted by other witnesses, seemed inherently improbable, and lacked independent corroboration. On the other hand, the respondent’s recollection of events was corroborated in part by two of P21’s friends, was not inherently improbable and was not contradicted by any witness other than P21.

435. The first sub-issue is P21’s asserted level of intoxication, or more precisely, to what degree, if at all, her mental faculties were impaired. Most important was her ability to perceive what was happening around her and her ability to make her own decisions. To me, observations of P21’s actions (walking, talking etc) whilst affected by alcohol are stronger indicators of her degree of inebriations than subjective assessment by the various witnesses on a scale of one to ten.

436. P21’s recollection was that she was very affected by alcohol and was physically pulled out of Hopscotch by the respondent without them having spoken to each other. She was then pushed into a taxi and taken to his apartment. In her evidence at the first trial, she described as being “sort of spacey [and] not able to make any of [her] own decisions” at the point in time when she was in the taxi.

437. Her recollection of being affected by alcohol to the point of being “spacey” and unable to make her own decisions was contradicted by other witnesses and is not corroborated by any objective evidence, contemporaneous material or any other witness.

438. P4 said that although P21 was affected by alcohol, she could walk unaided and could talk coherently. He thought P21 was between five and six out of ten before Hopscotch, and between six and seven out of ten when at Hopscotch. Whatever the precise level on that subjective and informal intoxication scale, he said P21 could walk unaided, did not stumble, and could converse clearly and coherently. P4 said that P21 was able to move around Hopscotch, talk with multiple people, she engaged well and was not really hesitating with any answers.

439. P3 said that shortly before arriving at Hopscotch P21 was able to stay upright and was in control of herself. On the walk to Hopscotch P21 had no difficulty communicating with P3 and P4 and had no difficulty walking in high heels. P3 said that both at Hopscotch and the bar they had been at immediately before, P21 had no problems communicating, no problems standing or walking.

440. P5 thought P21 was something like an eight out of ten, and had become “giggly”, but said P21 could handle her alcohol better than P5. As matters transpired, P5 did not go to Hopscotch and so I place greater weight on the observations of P3 and P4 whilst at Hopscotch.

441. P21 told her treating psychologist that, whatever her state of intoxication at Hopscotch, she had “semi-sobered” up by the time the taxi arrived at the respondent’s apartment. This seems to me to be inconsistent with P21 telling the police that she was “spacy and stumble-y and very drunk” at that point in time, and somewhat inconsistent with P2’s observation.

442. P2, who received the phone call from P21 around 70 minutes after P21 had left Hopscotch, said that during this phone call he “wasn’t convinced she was heavily intoxicated”. She “didn’t slur her speech or have any issues”, presumably meaning some difficulty in communicating because of intoxication (albeit she was in evident distress). P2 told the police that P21 had no trouble conveying information to him and she did not seem to him to be under the influence of alcohol.

443. The respondent said that when he was speaking to P21 at Hopscotch she was rational and coherent although it was clear that she had been drinking.

444. Dr Parekh’s generalised expert evidence was to the effect that alcohol tendered to affect one’s mood first, then, as the level of alcohol went up, it would affect the ability to control one’s movements such as slurred speaking and difficulty coordinating walking. Lastly, it would affect one’s breathing and pulse.

445. Appreciating he was not asked to provide any opinion in relation to P21, his generalised evidence provides me with some additional confidence that P21’s level of intoxication was not as high as she recalled, and whatever that precise level was, the alcohol had not, according to the witnesses I have mentioned, interfered with her ability to talk and walk.

446. Overall, the evidence, and especially that of P3 and P4, corroborates the respondent’s evidence that when he was talking to P21 and when they left Hopscotch, P21 was rational and coherent. I find that P21 was, contrary to her evidence, capable of making her own decisions and was not “spacey”, “stumble-y” nor “very drunk”. P21 said herself in her cross-examination before us, that when in the taxi she was able to make her own decisions (which was contrary to what she said in her cross-examination in the first trial).

447. That ability to make her own decisions at Hopscotch did not lessen by the time the respondent and P21 arrived at the respondent’s apartment. P21 said that by that time she had semi-sobered up.

448. In my opinion P21 was rational, coherent and capable of making her own decisions whilst at Hopscotch. She was not so affected by alcohol as to interfere with her motor skills and was only affected by alcohol to the extent that it affected her mood. To that extent I accept the respondent’s recollection of the extent to which P21 was affected by alcohol whilst at Hopscotch and thereafter.

449. The next sub-issue is the nature of any interaction between P21 and the respondent whilst at Hopscotch. P21 said she never spoke to the respondent until he grabbed her arm and pulled her out of Hopscotch and into a taxi. The respondent said they spoke for some little time in a light-hearted way with a bit of innuendo and “a little bit of suggestion”.

450. Both P3 and P4 saw P21 and the respondent talking to each other for some time at Hopscotch. P4 said he had a clear view of P21 speaking to the respondent. He said that he observed that both P21 and the respondent being flirtatious with each other, namely putting the occasional hand on an arm or around a waist when they were talking, they were leaning into each other and there was some mild sort of touching. He described their interaction as “very friendly” and “at times, it seemed quite flirty”.

451. P3 could see P21 and the respondent “chatting briefly by themselves at some point” at Hopscotch.

452. The evidence of P3 and P4 is broadly corroborative of the respondent’s evidence that, first, he and P21 did speak to each other, and that his conversation with P21 whilst at Hopscotch was light-hearted, funny, contained a bit of innuendo and “a little bit of suggestion” together with some light touching on each other’s hip or arm.

453. On this sub-issue I accept the respondent’s recollection because it is largely corroborated by P3 and P4.

454. The next sub-issue is how P21 and the respondent left Hopscotch.

455. According to P21, she was forcefully pulled out of Hopscotch by the arm whilst she was talking to P17, with her arm at right angles to her body, and during which she was asking the respondent what he was doing and where were they going. The respondent’s evidence was that whilst they were talking in Hopscotch he had invited P21 back to his apartment and she had accepted the invitation. He said that they then left Hopscotch, walking out side by side and holding hands.

456. P21 said that she was talking to P17 when the respondent pulled her out of Hopscotch. P17 gave evidence that she was very drunk and had no recollection of anything which occurred at Hopscotch.

457. P4 saw P21 and the respondent leave together, mainly walking side by side, and said that the respondent was not being pulled along by the respondent with her arm at right angles to her body. He said he saw P21 and the respondent both take their phones out when nearing the front gate.

458. No other witness gave evidence of seeing P21 and the respondent leave Hopscotch.

459. P3’s evidence was that P21 subsequently told her that “she had left” Hopscotch with the respondent “voluntarily” and had not mentioned being pulled from Hopscotch.

460. In his record-of-interview P2 said that P21 told him that the respondent “took her out of the venue”. In the first trial he said he was told that P21 was “pulled out of the club” meaning “more than led”, not “strongly or assertive … [l]ed, touched, grabbed and pulled but not physically bad”, or “as if you were just leading someone along but not pulling and dragging them along”.

461. In the second trial P2 said he was told by P21 that she “got pulled aside and pulled into a cab”. He said he was told: Got into by being led or pulled in a difficult to ascertain way. She mentioned that it was more being led into and pulled out of the venue itself.

462. I have some difficulty understanding P2’s evidence, but overall the impression I have (relying more on his earlier recollections than the later ones) was that he was told by P21 that she was led (by the hand) out of Hopscotch, but not that she was pulled by the arm as she described.

463. P5 said that P21 told her that the respondent “kind of led her to the taxi and put her in the taxi”. That evidence amounts to something a fair degree less than that described by P21 and seems more consistent with P4’s and the respondent’s recollection of events.

464. In my view the preponderance of the evidence is to the effect, and I so find, that P21 walked out of Hopscotch voluntarily with the respondent, mainly side by side (when not having to squeeze past other patrons) and hand-in-hand. The preponderance of evidence is against P21’s recollection that she was pulled out by her arm, with her arm being at 90 degrees to her body.

465. P21’s recollection of events in relation to the sub-issues I have discussed above also seems inherently improbable. It seems improbable to me that a woman who could walk unaided and talk clearly and coherently would allow herself to be pulled from Hopscotch involuntarily, away from her friends, past other customers and past a security guard on the front gate of Hopscotch, without a word of protest, without seeking assistance from those around her or without expressing a desire to say goodbye to her friends. On her recollection she was able to ask the respondent what he was doing and where were they going, and so it seems reasonable to think she could have sought assistance from her friends or patrons around her if what was happening to her was not what she desired.

466. In my opinion it is more probable than not that P21 spoke alone with the respondent for a short time at Hopscotch. Their conversation was light-hearted and a little flirty. The respondent invited P21 back to his apartment and she accepted the invitation. They then held hands and exited Hopscotch side-by-side (except when squeezing past other patrons).

467. P21 said in her evidence at the first trial that it was not possible that she had agreed to go back to the respondent’s apartment. She said that she had never agreed to go back to a man’s house either before or after 1 December 2019, and she did not like going back to people’s houses. On the findings I have made not only do I not accept that evidence, but it is possibly damaging to P21’s credit in terms of her honesty. I say ‘possibly’ because that evidence was given at the first trial and not before us (and so I had no opportunity to observed P21’s demeanour when giving that and related evidence) but it is so contrary to the findings I have made above that it suggest lack of honesty as distinct from a mistaken recollection. Be that as it may, I do not accept P21’s evidence to the effect that she really did not know what was happening. Rather, she knew what was happening and, after some flirtatious conversation, willingly accepted the respondent’s invitation to go with him to his apartment.

468. The next sub-issue is the circumstances surrounding getting into the taxi outside Hopscotch.

469. In her police interview, P21 described being pushed into the side of the taxi with sufficient force that someone inside would have noticed the impact. The door was then opened and the respondent “sort of slid me in”. She did not think the respondent would get into the taxi, but he did.

470. The taxi driver could not recall the night in question but said that he had never had anyone hitting the side of his taxi, although sometimes (especially near places like Hopscotch where drunk people would sometimes be on the street outside) someone might be pushed or bang into the taxi. He said this type of occurrence was quite rare.

471. He said he would have remembered such an event if it had occurred, but he could recall no such event.

472. The pushing into the side of the taxi is not mentioned in P21’s diary note written within a week or two of 1 December 2019 and was not subsequently mentioned to any of her friends. Rather, P3 confirmed at the first criminal trial that P21 said she had left Hopscotch voluntarily, and had no recollection of P21 telling P3 that she had been pushed, guided or pulled into / out of the taxi. That is not to say that participants in a traumatic event will subsequently record or inform others of 26 every detail without fail, but in this case that particular action was of some significance and it strikes me as a little odd that, had it happened, it was not subsequently recorded or mentioned.

473. I accept the respondent’s evidence about the circumstances surrounding the catching of the taxi. P21’s recollection is not corroborated by any evidence. The evidence corroborative of the respondent’s recollection which I have mentioned above is not the strongest corroboration, but his recollection of events is the more plausible and the more probable given my findings of fact as to what happened at and how they came to leave Hopscotch. That is, given what had happened earlier, it is improbable that P21 would have been pushed into the side of the taxi.

474. The next sub-issue is what occurred in the taxi between Hopscotch and the respondent’s apartment.

475. P21’s recollection (in her record-of-interview) was that the respondent was kissing her neck, but she could not recall saying anything to him and could not remember trying to push him away or anything like that. P21 sat in the middle of the rear bench seat of the taxi, with the respondent on one side. P21 said she did not make any attempt to move to the other side of the seat away from the respondent. In the taxi the respondent said there was consensual kissing and touching.

476. In the first trial P21 said that when the respondent was kissing her she could not recall pushing him away or telling him to stop. Nor did she raise any complaint with the taxi driver. Her evidence did not seem to describe a freezing or surrendering response to sexual violence, nor the fight, flight or negotiating

26 A good example of that fact is that P21 did not tell P6 about any attempted cunnilingus, yet both P21 and the respondent agree that cunnilingus took place responses, although the evidence on those matters was general only and Dr Parekh had not been asked for his expert opinion on those issues in relation to P21’s recollection of events.

477. The taxi driver could not remember the fare in question but said that he had experienced kissing passengers in the back seat of his taxi many times. He had never had a situation where one person was looking like they did not want to be kissed.

478. In light of my findings as to the limited degree to which P21 was affected by alcohol, her ability to make her own decisions, the interaction between the respondent and P21 at Hopscotch, the manner in which they left Hopscotch and that P21 voluntarily entered the taxi knowing she was going to the respondent’s apartment, I consider the respondent’s recollection of what took place in the taxi as being the more probable.

479. The final sub-issue is how and in what manner P21 and the respondent left the taxi and entered the respondent’s apartment.

480. When the taxi arrived at the respondent’s apartment P21 had, according to what she told her psychologist, semi-sobered up. She had been able to walk without stumbling and could speak without slurring her speech whilst at Hopscotch. The use of the expression “semi-sobered up” conveys that she was even less affected by alcohol (at least as a subjective assessment) by the time she arrived at Deakin.

481. In my view P21 was probably not, as she said in her record-of-interview, intoxicated to the level of being eight or nine out of ten, and was not (as she said in her evidence-in-chief in the first trial) “spacey [and] not able to make any of [her] own decisions”.

482. The taxi driver recalled nothing unusual and P21’s recollection of events when the taxi arrived at the respondent’s apartment seems improbable to me given the factual findings I have set out above and the fact that the taxi driver recalled nothing unusual.

483. P21 said that she thought the respondent was going to get out of the taxi and the taxi would continue on to take her home, but the respondent grabbed her by the left hand and pulled her out of the taxi without her saying anything to the taxi driver. When being pulled from the taxi, for example, she did not say anything to the taxi driver along the lines of “I’m not getting out here, I’m going home”. P21’s recollection seems unlikely behaviour for a moderately sober person if her recollection was accurate.

484. In her diary note, P21 does not mention being pulled from the taxi or pulled into the apartment, but simply said that “we walked inside”. P21 told P2 that when they got back to the respondent’s apartment “he invited her in, took her inside” and he did not recall being told by P21 anything about being pulled out of the taxi.

485. In my opinion the respondent’s recollection as to the circumstances of he and P21 leaving the taxi and entering his apartment is more probably correct.

486. Overall, I find that it is more probable that P21 spoke and interacted with the respondent at Hopscotch as described by P4. During that interaction there was some light-hearted conversation and mild flirting. The respondent invited P21 back to his apartment and she accepted. They left Hopscotch together, P21 walking voluntarily and mostly side by side with the respondent. P21 got into the taxi willingly and knowing where the taxi would go. When in the taxi the respondent and P21 engaged in consensual kissing and mild touching. When the taxi arrived at Deakin, P21 willingly left the taxi with the respondent knowing she was going to the respondent’s apartment.

487. Of some significance is P21’s conversation with P2 later on 1 December in which she said she may have led the respondent on, or have caused it (the sexual assault) herself, or that she may have asked for it. Those statements seem incongruous with a recollection that the respondent physically pulled her out of Hopscotch without ever having met or spoken to her, she is pushed into a taxi, kissed and touched without her consent, and then pulled into the respondent’s apartment. If that is what happened, it seems unlikely that a young woman could ever had considered it possible that she had led the respondent on or caused anything.

488. I next turn to what happened in the Deakin apartment.

489. Indisputably, P21 and the respondent were in his apartment for a little over one hour before she called the Uber to take her home. P21 and the respondent had arrived at the apartment at about 1:46am, and the phone call ordering the Uber was made at 2:48am.

490. After entering the apartment P21 said that the respondent lifted her up onto the cube, removed her underwear and commenced cunnilingus. The respondent denied that activity on or near the cube (he said all sexual activity occurred in the bedroom). The diary note is consistent with P21’s recollection, and P2 said that P21 told him the respondent would “pick her up, put her on the bench”, kiss her and perform cunnilingus, a recollection broadly consistent with P21’s recollection.

491. It seems more likely than not that this sexual activity on the cube took place as described by P21. I do not accept the respondent’s evidence that this did not occur as described by P21 as I treat the respondent’s evidence with caution and his recollection is not corroborated by any other evidence. In P21’s favour is the relatively contemporaneous statement she made to P2 that she was lifted onto a bench. There being no other furniture that might meet that description other than the cube, it is more probable than not that the respondent did lift her up onto the cube whereupon some sexual activity occurred.

492. However, I am not comfortably satisfied that that sexual activity took place without P21’s consent. I have set out above the circumstances in which P21 and the respondent met, and the circumstances of their coming to be in the Deakin apartment. Those circumstances are more consistent with consent than the absence of consent. P21 met and talked with the respondent at Hopscotch. She accepted his invitation to go back to his apartment. There was consensual kissing in the taxi. P21 voluntarily left the taxi and accompanied the respondent to his apartment. She was in the apartment for about an hour before she called an Uber to take her home, a phone call only made after she discovered that the respondent was married.

493. P21 had been affected by alcohol, but not to the degree that the alcohol affected her motor skills and she was able to talk and engage with other people without slurring her speech or any other observable difficulties. She had semi-sobered up by the time she arrived at the apartment and there were no apparent signs of any of the five responses to sexual violence described by Dr Parekh (albeit being generalised evidence).

494. There are additional internal and external inconsistencies with P21’s evidence which cause me not to accept her evidence that she did not consent to the sexual activity, and explain why I do not give the same weight as SM Morrison to the evidence of what P21 said to P2, P5 and P6 shortly after P21 left the apartment and later that day. Also, in my view and with great respect, one cannot regard any of the inconsistencies I have mentioned as “gaps” in recollection.

495. It is common ground that P21 first became aware that the respondent was married when she got to his apartment and toward the end of her time at the apartment. She said she became aware of this fact when they were in the bedroom, and the respondent was trying to take his wedding ring off. He said P21 became aware of his married status because she saw a photograph of the respondent’s wife (when he and P21 were in the bedroom). The latter seems improbable because according to the respondent the photograph was next to the phone charger which P21 had, on the respondent’s recollection, attached to her phone shortly after first arriving at the apartment. That is, she would probably have seen the photograph earlier. Nevertheless, P20 corroborated the respondent’s evidence that such a photograph (or frame of photographs) existed.

496. In any event, it is common ground that they were in the bedroom when she noticed the wedding ring. It is common ground that she said “Stop, you’re married”. It is common ground that the respondent and P21 then had a verbal argument after which P21 left the apartment. It is common ground that P21 had not attempted to leave the apartment before that point in time. It was common ground that the respondent provided P21 with a phone charger as soon as he was asked.

497. P21’s evidence at the first trial and before us was that she did not seek to charge her phone (to call an Uber to go home) until after she and the respondent had been in the bedroom (where the last alleged sexual activity took place) and after she 27 had discovered that the respondent was married. On that evidence, this was about 60 minutes after P21 had entered the apartment.

498. Yet, according to P2, P21 told him (when she telephoned him from the Uber) that she had been trying to charge her phone for the whole time she was in the apartment, was trying to leave and the only reason she could not do so was because her phone battery was dead and she needed to charge her phone, which she continually tried to do. That is inconsistent with her sworn evidence.

499. P2 said that P21 told him that, when in the taxi, she was not sure where she was going. I have found that she had earlier accepted the respondent’s invitation to go back to his apartment, and so that statement to P2 was incorrect.

500. P21 said that her phone battery had run out of charge by the time she and the respondent arrived at his apartment. It follows that she knew her phone battery was out of charge when she entered the apartment. Yet, on her own evidence, she did not ask for a charger until at least 50 minutes or so later. This is inconsistent with P21 not wanting to be in the apartment and not consenting to the sexual activity (in the absence of, for example, the freeze response which may explain the delay in asking for a charger).

501. It also seems significant to me that P21 did not tell P2 that she found out that the respondent was married when she was at the apartment (and toward the end of the hour she was there) and that P21 and the respondent had argued about that fact.

502. P21 recorded in her diary note that the respondent kept knocking her phone out of her hands, yet in her sworn evidence at the first trial she said something quite different. In that evidence she said that she only went to charge her phone after she found out that the respondent was married. When she discovered that fact, she went to the dining room to collect her phone, asked the respondent for a charger, then walked into the bedroom where the charger was located and

27 T 38.4, 60.19 attached her phone to it. She said that at no time did the respondent try and prevent her doing any of those things.

503. This is somewhat consistent with what P2 told the police, namely that he did not get the impression from the conversations he had with P21 that the respondent tried to prevent P21 leaving the apartment.

504. If that part of P21’s evidence is correct, which I find it is given it is broadly common to both P21’s and the respondent’s sworn evidence, it begs the question why P21 would not have charged her phone and ordered an Uber after first arriving at the apartment (where, on her evidence, she did not want to be), or when unwanted sexual activity first commenced.

505. It seems unlikely that so soon after leaving the apartment P21 could have been mistaken about the matters she told P2 which I find were incorrect. The more likely possibility is that in those respects she was not being truthful with P2.

506. The same applies to P21’s conversations with P3 (three or four days later), P5 (later that day) and P6 (later that day) in relation to lack of consent to the sexual activity.

507. I note that P21 told P6 that she was trying to charge her phone when on the bed in the bedroom (which was not P21’s sworn evidence), that all sexual activity occurred in the bedroom (which was not P21’s sworn evidence) and that she was “grabbed” and “pulled” out of Hopscotch by the respondent (which did not happen on my findings).

508. I also note that P21 told P5 that P21 was trying to charge her phone whilst the respondent was engaging in sexual activity and that she had “somehow” made her way to the respondent’s apartment (contrary to my finding that she accepted the respondent’s invitation and voluntarily went to the apartment)

509. Given the objective evidence that P21 was in the apartment for about one hour, and, on her’s and the respondent’s evidence, only charged her phone and rang an Uber towards the end of that hour, the more probable explanation is that P21 consented to being in the apartment and consented to the sexual activity. She then discovered that the respondent was married whereupon, on both P21’s and the respondent’s evidence, all sexual activity stopped.

510. I do not find that the respondent used the electric toothbrush as recalled by P21. P21 did not mention the toothbrush to any of the friends she spoke to shortly after the alleged assault, although she did tell the police in her record-of-interview. She said she did not mention this to any of her friends because of its embarrassing and violating nature, but she did record it in her diary note. If I am wrong about that finding, I would have found that P21 consented to the use of the toothbrush.

511. I appreciate the care to be taken in assessing a person’s reactions to unwanted sexual activity as described by Dr Parekh. But P21’s reactions (as described by her) prior to discovering that the respondent was married do not seem to fit into any of the reactions mentioned by Dr Parekh, namely freezing, fleeing, fighting, surrendering or negotiating. Her requests to the respondent to stop once she discovered he was married may have been a negotiating response, but that seems somewhat incongruous to me given she had not tried to leave the apartment earlier, nor had she tried to negotiate her way out earlier.

512. Nevertheless, on P21’s own evidence, her reactions to the earlier claimed non-consensual sexual activity were distinctly different to her reaction when she discovered that the respondent was married. In relation to the latter, but not the former, she organised an Uber and left the apartment.

513. I accept that P21 was very distressed when she got into the Uber, and was distressed later that day and subsequently. I accept the Board’s submission that distress may support the veracity of an allegation of sexual violence. But there must be a causal connection between the distress and the alleged sexual 28 violence. In this case I accept that P21 was distressed, but do not accept that the distress was caused by the alleged non-consensual sexual activity. As the Board fairly accepted in oral argument, P21’s distress may have been caused by P21’s discovery that the respondent was married. This is consistent with the jury direction as to emotion and distress that I have set out above, namely that the

28 See, generally, R v Ryan Churchill (a pseudonym) [2025] HCA 11 presence of emotion or distress does not necessarily mean that a witness is being truthful.

514. The respondent’s evidence of the events at Hopscotch are substantially corroborated by P3 and P4. His evidence involving the taxi is very mildly corroborated by the taxi driver. His evidence of what occurred in the apartment is substantially similar to that of P21, with the stark difference being the issue of consent. His version of events has been consistently the same since his solicitor spoke to the police before knowing P21’s version of events. I have approached his evidence with much caution, but on balance I find his version of events to be the more probable.

515. For those reasons I am not comfortably satisfied that Charge 1 has been proved.

516. I dismiss Charge 1.

Perjury

517. The respondent admitted to the lie for which he was charged and convicted of perjury, being the first lie.

518. He denied the second lie, namely that it was a lie when he gave evidence in the first trial that it would not have been possible to have pushed P21 in the general area she had indicated because there was a large cabinet and the dog food box there.

519. The uncontested evidence of P20 is that the large cabinet was there on 1 December 2019. I have found on the balance of probabilities that the dog food box was not there.

520. But I am not persuaded to the necessary standard that the respondent lied when he gave evidence that the dog food box was there and lied in suggesting that he could not have pushed P21 against the wall adjacent to the dog food box.

521. Accepting I have found that the respondent’s evidence is worthy of little credit, that does not mean I put it all aside.

522. He and P20 had a dog which lived in Newcastle and occasionally visited the Deakin apartment. The dog would require some food, and it seems logical that some dog food would be kept at Deakin.

523. The respondent said he and P20 had three dog food boxes, and it is possible that under the stress of the first trial he had a faulty recollection that one of those had been in the apartment on 1 December 2019.

524. The respondent readily admitted in cross-examination that it would have been possible to have pushed P21 against the wall adjacent to the dog bowls. He was not cross-examined to the effect that it would not have been possible to have pushed P21 against the wall adjacent to the dog food box, but that it seems rather obvious that that would have been possible given the dimensions of the dog food box one can see in the photos, but only if P21 was pushed against the wall in that quite narrow area above the dog food box but to the right of the cabinet.

525. The evidence which led to this charge was a rolled-up statement to the effect that a large cabinet was present, a dog food box was present, and the presence of those items would have prevented P21 from having been pushed against the wall. I have already referred to the absence of cross-examination on certain matters.

526. Although I have doubts about the respondent’s credit, I am not persuaded that the Board has proved to the necessary standard that the relevant evidence about the dog food box was a lie.

Attempt to pervert the course of justice

527. The respondent admitted to attempting to pervert the course of justice in relation to the first lie. He denied doing so in relation to the second lie.

528. As I am not satisfied that the respondent committed the second lie it follows that I could not be satisfied that he attempted to pervert the course of justice in relation to it.

529. Even if I were wrong about that factual finding, and the evidence he gave about the dog food box was a lie, there is no basis to suggest the respondent tried to change P20’s evidence in relation to it.

530. We have the transcript of P20’s interview with the police which was served on the respondent, and which led him to try and contact her and to sending her the email. But that transcript is silent about the dog food box. It follows, there was, at least on the information available to the respondent, no specific evidence to be given by P20 about the dog food box and so no evidence of hers on that topic that needed changing.

531. Further, I do not read the email as attempting to have P20 give certain evidence about the dog food box. The email, as I read it in the context of P20’s interview with the police, is concerned with where the dog was living.

532. The Board submitted that the only reason to lie about where the dog was living was to support the lie that the dog food box was present. That is, if the evidence about the dog’s living arrangements was a lie then it followed that the evidence about the dog food box was also a lie.

533. I do not agree. Witnesses may have an honest recollection of fact A which they desire to support with a lie (fact B) because they have no other corroborative evidence of the existence of fact A. It does not follow that if fact B is a lie, then so must fact A be a lie.

534. I am not persuaded by the Board to the necessary standard that the respondent attempted to pervert the course of justice beyond that which he admitted.

Characterisation

535. The next question is how we characterise the respondent’s conduct in committing perjury and attempting to pervert the course of justice as admitted.

536. In my opinion that conduct amounted to professional misconduct.

537. It was conduct that fell below the requisite standard to a substantial degree. It was 29 contrary to clause 2.1 of the 2020 Code of Conduct which requires medical practitioners to act honestly, ethically and to be trustworthy.

29 Medical Board of Australia, ‘Good Medical Practice: A code of conduct for doctors in Australia’ (October 2020)

538. The respondent did not contend to the contrary.

Orders

539. As the Tribunal has not reached a majority decision on Charge 1, the decision of the presiding member on that question is the decision of the Tribunal pursuant to section 52(3) of the ACAT Act.

540. The Tribunal makes the following orders: 1. Charge 1 is dismissed.

541. Upon being satisfied that the Charge 2 is established in relation to the respondent’s admitted conduct of committing perjury and attempting to pervert the course of justice, the respondent has behaved in a way that constitutes professional misconduct.

542. The matter will be listed on a date to be fixed for the making of directions as to the conduct of the penalty stage of the proceedings.

…………………………… Acting Presidential Member G Curtin SC Senior Member Morrison 30 Multi-member tribunal 1. A multi-member tribunal strengthens the decision-making process by bringing different perspectives and expertise. It also carries the possibility of members reaching different conclusions. Reasonable minds can differ.

2. Section 52(3) of the ACAT Act provides that the view of the presiding member prevails where the tribunal cannot reach a majority on a question.

3. I generally agree with the presiding member’s reasons and conclusion on Charge 2.

4. I respectfully disagree with the presiding member’s reasons and conclusion on Charge 1. I have found Charge 1 to be established and that the respondent’s conduct constitutes professional misconduct within paragraphs (a), (b) and (c) of the definition in section 5 of the National Law.

5. My different conclusion on Charge 1 arises principally from my assessment of P21’s credibility and the weight I have attributed to recent complaint evidence when considering the factual question of consent, particularly P2’s evidence. I reached my conclusion by according limited weight to the evidence of both the respondent and P21 except where corroborated by other, probative evidence and, in relation to the respondent’s alternative hypothesis, by considering whether his account is more probable having regard to the totality of evidence and circumstances of the case. In this sense, I have treated their direct evidence in the same way.

General comments on Charge 1 6. The Tribunal’s task is to determine whether it is satisfied to the Briginshaw standard that the Board’s allegation of sexual activity without consent is

30 In these reasons, a reference to ‘tribunal’ means the ACT Civil and Administrative Tribunal generally; references to ‘Tribunal’ means the two-member tribunal constituted for this application under section 89 of the ACAT Act established and if so, to determine whether the conduct constitutes a basis for 31 disciplinary action. This is a different task to that of a court in a criminal trial.

7. The lack of documentary or other objective evidence means the determination of Charge 1 comes down to the comparative credibility and reliability of oral evidence given by the respondent, P21 and other witnesses. The Tribunal has wrestled with the evidentiary difficulties that commonly arise in sexual assault cases, and while we observed the respondent, P21 and P2 give evidence in these proceedings, our opportunity to do so was far more limited than that of the juries in the two criminal trials, and we did not observe the other witnesses. The lack of a reliable narrator, together with the effects of intoxication and the passage of time on memory, further complicated matters. After two criminal trials resulting in both juries being unable to reach a unanimous verdict, it is unsurprising the Tribunal has also not reached a unanimous decision.

The evidence 8. I generally agree with the presiding member’s summary of the evidence. I add 32 the following points that are relevant to my decision.

P21’s evidence 33 9. P21 said she had vomited earlier in the night and did not remember walking to 34 Hopscotch from the previous venue.

10. In relation to speaking with the respondent at Hopscotch, P21’s evidence was that she was in a group and did not remember having a one-on-one conversation with 35 him but she accepted that another witnesses’ memory may be better than hers.

31 For consideration of the different standard of proof between criminal and civil proceedings, see Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 at [96]-[111] 32 In the following paragraphs, BD refers to the revised book of documents; ROI refers to the relevant police record of interview, XN refers to examination-in-chief during the first criminal trial, XXN refers to cross-examination during the first criminal trial; XN2 refers to examination-in-chief during the second criminal trial; T refers to the transcript from these proceedings 33 BD pp 266-268, 271 (ROI); p 340 (XXN); T 15: 39-30 34 BD p 342-3, 345 (XXN); also T 16: 12-45 35 BD p 355; also see pp 275-276 (ROI); also T 17: 2-4, 31: 4-5; 49: 14-46; 67: 2-6 11. In relation to leaving Hopscotch, P21 accepted that she left Hopscotch voluntarily in the sense that she “wasn’t saying stop over and over or fighting [the 36 respondent]”.

12. When asked why she did not pull her hand away from the respondent upon leaving Hopscotch, or raise an alarm with the taxi driver, P21 said she had no 37 reason to think she was in danger. P21 also said she thought the taxi would drop 38 her home.

13. P21 described her state of mind in the taxi as: I was vaguely aware. I more remember just being sort of spacey but not able to make any of my own decisions, but I could – I remember my thoughts 39 more than I guess what I was actually doing but I couldn’t enact them. 14. P21 said that, when she was on the shelving unit, she kept trying to pick up her 40 underwear off the floor and put it back on.

14. P21 said she was “ushered” or “led” from the shelving unit into the bedroom whilst she was retrieving her underpants from the floor and this is when the 41 respondent pushed her over the bed and she hit her back.

15. In relation to the sequence of events in the bedroom: (a) During the police interview, P21 said that, after repeatedly closing her legs and rolling over on the bed: I rolled over and sort of pushed him off the bed and grabbed his face and I was, like, I told him to stop, like, he can't do this. And he just looked at me blankly and then kept going. He kept trying to come at me and then eventually got off the bed, and went and grabbed my phone and I tried to call an Uber off of my phone, and my phone died immediately as soon as I went on it. So I found his phone charger which was next to his bed, but of course because I was then next to his bed, trying to plug-in my phone, he then kept trying to push me on the bed. And, um, I, um, just kept fighting him off and it was me continuously closing my legs and trying to roll away, and pulling up

36 BD p 357 (ROI); pp 402-405 (XXN); also T 33: 27-33, 38: 33-35 37 BD pp 351, 370 (XXN) 38 BD pp 368, 371 (XXN) 39 BD pp 307-308 (XN); also T 29: 8-10 40 BD pp 283, 286 (ROI); p 403 (XXN) 41 BD p 286 (ROI); p 403-404 (XXN) my dress when he would try and rip it off, continuously for I don't know how long. And then I grabbed my phone when I could get to it -he kept- every time I went to get it whilst it was still on the charger, he would knock it out of my hand. Um, and so eventually I got it and somehow ordered an Uber and got it off the charger, but he kept throwing it away from me. Um, and so finally I got it and then 42 grabbed my purse and made a run for the door. (b) Later in the police interview, P21 recalled saying words to the effect of “stop, you’re married, stop” when she grabbed the respondent’s face while 43 he was off the bed. (c) During cross-examination at the first criminal trial, P21 agreed she became aware the respondent was married whilst in the bedroom but she did not recall the specific point when she noticed the respondent’s wedding ring or 44 seeing him taking it off his finger. P21 said the respondent was off the end of the bed when she said words to the effect of “stop, you are married”. She said he was not doing anything at that point because he was stuck next to 45 the bed. P21 used the opportunity to get her phone. She agreed the respondent did not stop her charging her phone, but disagreed that the 46 respondent did not touch her phone, or rip or hit it out of her hands. P21 also disagreed that the respondent stopped the sexual activity after she said 47 “stop, you are married”. (d) During cross-examination in these proceedings, P21 disagreed that the respondent did not hit her phone out of her hands and said she asked to charge her phone some time after she said words to the effect of “stop, you 48 are married”.

42 BD p 284 (ROI) 43 BD p 288 (ROI); also see BD p 1639 (handwritten diary entry) 44 BD pp 409, 428 (XXN) 45 BD pp 408-409 (XXN) 46 BD pp 427-428, 432 (XXN) 47 BD p 430 (XXN); I am unable to find a reference in the ROI or criminal trial transcript where P21 said that the respondent did not “prevent her from doing the things she described”, except in relation to connecting her phone to the charger 48 T 60: 14-21; 61: 5 17. In relation to the second phone call with P2: (a) During the police interview, P21 explained that she asked P2 if he knew whether she had had sex with the respondent because she had had light bleeding the following day, which occasionally occurred after sex, and her 49 hazy memory caused her to “question it”.

(b) During cross-examination, P21 agreed she could not recall what she had told P2 during the first phone call, that there were gaps in her memory and 50 she was trying to piece together what happened. However, she disagreed that she did not remember what happened in the apartment. P21 had the following exchange: By that you mean that you didn't recall what you had told [P2] in the first phone call from the cab?---Yes. At 322, 'And you were asking him to tell you what you had said'?--- Yes. Then you said, 'Well, because I said, "Do you know if I had sex with him?" and he said, "Not that you told me."' Right. Now, do I take all that to mean that when you spoke to – well, when you had some communication with [P2] the next day whether that be by text or by phone call, by that stage, you didn't remember what you had told him?---Yes, I would take it as that too, yes. Is that because – the next day, you didn't remember what had gone on in Dr Kader's apartment the night before?---No, I remembered. Are you sure about that?---I know what – I remembered what went on in his apartment but me telling [P2] wasn't a – wasn't something I thought I would need to remember. It wasn't traumatic enough to 51 remember. (c) P21 further said that her conversation with P2 did not fill in any memory 52 gaps. P21 was not asked about bleeding when giving evidence during the first criminal trial.

49 BD pp 290-291 (ROI) 50 BD pp 377-378 (XXN) 51 BD pp 395-396 (XXN) 52 BD p 379 (XXN) P2’s evidence 18. P2 said his impression of P21’s description of the taxi ride was that she was 53 surprised, naïve and too polite to resist the respondent’s actions. He also 54 described his impression of P21 as confused and not actively reciprocating.

19. P2 recalled P21 describing being lifted onto a bench or cabinet, that P21 continually had to stop the respondent, that she kept “pulling” him off, and sliding 55 or trying to get off the cabinet or bench.

20. P2 recalled P21 saying that she was trying to leave the apartment but she could not contact anyone due to her phone being “dead” or not charged. He recalled being told about the respondent’s attempts to “go down” on P21 and her 56 continually trying to stop him, pull away and jump off. P2 said P21 kept saying “during all of this” she was trying to get her phone charged to call an Uber or 57 someone to collect her.

21. P2 recalled P21 telling him about the respondent “pulling her into certain areas 58 of the rooms”.

22. In relation to the first phone call, P2’s impression of P21 was she was worried 59 she may have not done enough to stop the respondent.

23. In relation to the second phone call, P2’s impression of P21 was she was concerned she had caused the situation and wanted to check that she was not overreacting. P2 also said P21 wanted clarity about how much she told him rather 60 than what happened at the apartment.

53 BD p 98 (ROI); p 110 (XN) 54 BD p 123 (XXN) 55 BD pp 96, 98 (ROI), p 110 (XN) 56 BD p 96 (ROI) 57 BD p 112 (XN), also BD p 96 (ROI) 58 BD p 141 (XN2) 59 BD p 100 (ROI), p 115 (XN). pp 129-130, 133 (XXN) 60 BD p 97 (ROI); p 127, 133 (XXN), p 156 (XXN2) Other issues from the evidence 24. A key factual issue (not involving sexual activity) was raised in the criminal proceedings but has not been pursued by the applicant in these disciplinary proceedings. This presents some difficulty, as it may have assisted in understanding the sequence of events at the apartment, how the time there was spent and possibly why P21 did not call a taxi or charge her phone shortly after arriving at the apartment. However, I have not taken this issue into account, and it would not have affected my decision in any event.

25. A second issue that featured in the criminal proceedings, but less so in these proceedings, was bruising sustained by P21 in the bedroom. P21 said the bruising occurred when the respondent pushed her into the bed frame. The respondent said they fell onto the bed together and that P21 injured her back in the process. These accounts are not mutually exclusive and have limited probative value other than to confirm that sexual activity occurred in the bedroom.

The respondent’s credibility and the reliability of his evidence 26. The respondent admitted perjury in relation to the first lie. He lied to his lawyers and the court about the dog’s living arrangements. He tried to coerce his (now former) wife into changing her evidence on that issue. I am not persuaded that he did this to protect P20 from having to give evidence in his criminal proceedings but will not speculate.

27. The respondent said in evidence before the Tribunal that his evidence at the second criminal trial in relation to his email to P20 was “not credible”.

28. I agree with the presiding member’s finding that the respondent did not lie about the presence of the white cabinet and dog items (the second lie). However, irrespective of that finding, I find the respondent to be both dishonest and unreliable.

29. A finding that a person has lied in one respect does not necessarily lead to a finding that the person is dishonest generally. I agree with the presiding member’s approach to exercise caution in relation to the respondent’s evidence. I have given limited weight to the respondent’s account of events except where it is corroborated by other, probative evidence or is otherwise inherently probable having regard to the totality of evidence and circumstances of the case.

P21’s credibility, reliability of her evidence and the sub-issues 30. P21’s evidence was generally consistent between her handwritten diary entry, police record of interview, at the first criminal trial and before the Tribunal. During cross-examination, P21 answered questions and made appropriate concessions.

31. There are significant inconsistencies between P21’s recollection of events preceding the apartment and other witness evidence. There is no objective evidence that will assist to reconcile those differences. I have considered the following matters when assessing P21’s credibility, the reliability of her evidence and the weight to be given to it.

32. First, factual findings on the events prior to P21’s arrival at the apartment are only necessary to the extent they relate to the impact of intoxication on memory and P21’s decision on consent. I do not need to decide whether the respondent’s evidence should be preferred to P21’s on these matters.

33. Second, in relation to the evidence about P21’s level of intoxication: (a) P21 said she vomited earlier in the night, felt spacey and hazy in the taxi, but had semi-sobered up by the time she reached the apartment. During cross-examination in these proceedings, P21 said: I would say trauma makes your memory a bit different. You can see a bit clearer once things are happening. I was very drunk at the 61 apartment, but once things happened, you kind of sober up a bit. Although inherently subjective, this statement is not materially inconsistent with her earlier evidence or what P21 told her treating psychologist. (b) P2 said his impression of how P21 described herself in the taxi was that she did not know what was happening, which is consistent with P21’s evidence about feeling spacey and hazy. He also said that P21 did not slur her speech during the first telephone call, which was approximately one hour after she

61 T 23: 20-23 arrived at the apartment and is not inconsistent with her evidence that she had begun to sober up by that time. (c) P3 and P4 observed that P21 had no difficulty walking and talking whilst at Hopscotch, but P3 also expressed the view that P21 holds her alcohol better than P3. These witnesses were also drinking at the Christmas party and so their observations of P21’s behaviour and perceived drunkenness should be treated with caution. Further, at the time, there was no reason for P3 or P4 to pay particular attention to P21 or the respondent beyond general observation. (d) Dr Parekh’s expert opinion was that alcohol tends to work on conscious thought first, before motor skills are impacted. It is quite possible that intoxication may have affected P21’s memory in some way even if she did not show obvious signs of drunkenness. However, Dr Parekh was not asked to give an opinion about P21 so his evidence is of limited utility in that respect. 34. On balance, the evidence supports a finding that P21 was moderately intoxicated when she left Hopscotch. In my view, it is possible that at least some inconsistencies in P21’s recollection are better understood as gaps or misperception attributable to the effects of intoxication. However, the evidence does not clearly establish the impact of intoxication on her memory and I will not speculate.

35. Third, P21’s decisions or choices, other than those relating to consent, are not relevant to the determination of Charge 1. Nothing turns on P21’s statement that that she had never agreed to go back to a man’s house, and it is unnecessary to consider it further. Similarly, P21’s statements that she has a friendly personality, that her actions could be misconstrued as flirting, and that she does not like going to people’s houses, in the absence of contradictory evidence, have limited utility in assessing her credibility and no relevance to the factual inquiry of whether she consented to sexual activity at the apartment.

36. Fourth, it is possible that P21 left Hopscotch willingly, with or without encouragement from the respondent, got into the taxi and arrived at his apartment without raising an alarm. This is not inconsistent with P21’s account. Although she said the respondent pulled her from Hopscotch and into the taxi, she said this was voluntary in the sense that she did not resist. She explained that, despite being confused, she did not fear for her safety at that point in time. P2’s evidence of his phone call with P21 corroborates this aspect of her account. It is also possible that P21 voluntarily went to the respondent’s apartment without any intention to engage in sexual activity. Alcohol affects people differently and there was no evidence to assess whether, or to what extent, P21’s intoxication impaired her judgment even if that were relevant. Finally, for completeness, it is possible that P21 may have intended to consent to sexual activity but changed her mind once she arrived at the apartment, but this was not the applicant’s case.

37. Fifth, there are gaps in P3 and P4’s evidence and their evidence does not —– whether considered together or separately —– fully corroborate either P21’s or the respondent’s account. P3 saw P21 speaking with the respondent at Hopscotch but did not see them leave. P4 said he saw P21 and the respondent talking, leaving side by side, and using their phones outside, but he lost sight of them at two points before and after the front gate. Neither P3 nor P4 saw P21 enter the taxi.

38. Sixth, P22 (the taxi driver) gave evidence at the first criminal trial some 14 months after the trip. Whilst I acknowledge that he did not recall P21 being pushed into the side of the taxi or being pulled out of it, common sense suggests that his recollection must have been affected to some extent by the passage of time and volume of customers in the intervening period. I find that P22’s evidence has limited probative value except to corroborate P21’s direct evidence that she did not struggle in the taxi or raise an alarm.

39. Seventh, P21’s questions to P2 about gaps in her memory, her concern that she may have led the respondent on or caused the situation, and her unwillingness to disclose the toothbrush incident or other details to different witnesses does not necessarily mean she is dishonest, that her account of leaving Hopscotch is improbable or that she must have consented to the sexual activity. In criminal proceedings, the courts recognise that whilst counter-intuitive evidence cannot be used to establish that a complainant was telling the truth, decision-makers need to be careful not to apply stereotypes or make assumptions that counter-intuitive 62 behaviour is necessarily inconsistent with the allegations made. This issue is addressed further below.

40. Overall, I consider that the inconsistencies in P21’s evidence concerning events preceding the apartment are more likely the result of gaps in her memory, misremembering and/or perception, rather than deliberate deception or dishonesty. The combination of those inconsistencies, however, means I have found her evidence to be generally unreliable. In other words, I find P21 to be an honest, but unreliable, witness.

41. However, this does not mean that P21’s evidence must be rejected. Lee J 63 considered this issue in Lehrmann v Network Ten Pty Limited (Trial Judgment) and I have taken a similar approach.

42. In making my decision on Charge 1, I have given limited weight to P21’s account of events in the apartment except where it is corroborated by other probative evidence. This is consistent with the approach I have taken in relation to the respondent’s evidence, although for different reasons.

Findings on sexual activity 43. The applicant alleged that four sexual activities took place at the respondent’s apartment without consent. The respondent’s position is that sexual activity only occurred in the bedroom and it was consensual. He said he did not use a toothbrush on P21.

44. I agree with the finding by the presiding member that sexual activity took place in the dining area on the shelving unit. The precise nature of the shelving unit is immaterial. P2’s recent complaint evidence corroborated P21’s direct evidence on this issue in some detail. The cogency of P2’s evidence is discussed below.

45. I also agree with the finding that sexual activity occurred in the bedroom: this was not disputed by the parties and is supported by evidence of P21’s bruising.

62 For example, see Jacobs (a pseudonym) v R [2019] VSCA 285 at [50]-[61]; also see Baker J’s direction to the jury in DPP v Sullivan (No 3) [2024] ACTSC 390 at [25]; Davis v R [2024] NSWCCA 120 (Davis) at [129]-[130], [144]-[146] 63 [2024] HCA 369 at [137]-[139] 46. I am not comfortably satisfied that the toothbrush incident occurred due to the absence of corroborating evidence. This does not mean it did not happen, but there is insufficient evidence to make that finding.

Findings on consent 47. I am comfortably satisfied that, when P21 arrived at the apartment, she had capacity to decide whether or not to engage in sexual activity and to communicate that decision to the respondent. The question of capacity was not in dispute and requires no further consideration.

48. The respondent said that all sexual activity at the apartment was consensual. His evidence on consent is uncorroborated.

49. P2, P3, P5 and P6 gave evidence about conversations they had with P21 in the hours and days after the sexual activity. While none of those witnesses corroborated P21’s account in its entirety, they corroborated aspects of her account on different issues.

50. ‘Recent complaint evidence' refers to evidence that a complainant reported a sexual assault to a third party shortly after it occurred.

51. Recent complaint evidence does not prove that an assault occurred; rather, it provides context and can be used to corroborate the complainant's own evidence. The weight to be given to recent complaint evidence is to be determined having regard to the content of the communication, its timing, and intervening events 64 that may have influenced its content.

52. When assessing the cogency of recent complaint evidence in this case, I am mindful that trauma can affect how people recall events such that they may not recall all the details in the same way each time, and there may be differences in 65 truthful accounts.

64 Papakosmas v R [1999] HCA 37; also see Medical Board of Australia v Arunkalaivanan [2021] WASAT 127 confirmed on appeal; Medical Board of Australia v Mullaley [2025] WASAT 99 65 NSW Judicial Commission: Criminal Trials Bench Book at [5-050]; Davis at [144]-[146]; cited with approval in, for example, Al-Sheikh v R [2025] NSWCCA 205, Manudhane v R [2025] NSWCCA 53. P2’s evidence about his first conversation with P21 is compelling. P21 called P2 one minute after she left the respondent’s apartment. P2 recalls P21 sounding highly distressed. At the time of making the call, P21 had little, if any, opportunity for reflection or fabrication. In Sawyer v R, the NSW Court of Criminal Appeal recognised that an immediate post-incident phone call may constitute important contemporaneous evidence including in circumstances where the caller has 66 limited or no recollection of the conversation.

54. P2 recalled P21 describing her ongoing attempts to stop the respondent. He recalled P21 telling him that respondent repeatedly lifted her onto a bench or cabinet while she tried to get down, push him away and prevent him from performing oral sex. P2 recalled being told that P21 said “stop” and “no”, and that the respondent’s conduct continued while she was attempting to charge her phone.

55. Despite being woken in the middle of the night, P2 understood P21 to be worried that she had not done enough to stop the respondent. This is different to P21 wondering whether she had consented at all. It is generally recognised that such questioning is not unusual in sexual assault cases and may reflect trauma, shock 67 or internalised misconceptions about how consent must be communicated.

56. P21’s questions to P2 during the second phone call should be viewed in the same way. P2 recalled forming a view that P21 was concerned she may have caused the incident and was overreacting. He said she wanted check what she had told P2 to fill gaps in her memory, rather than having no recollection of what had occurred. P2’s recollection of his impressions of P21 during those calls form part of the overall factual matrix and support P21’s evidence of non-consent.

57. P2’s evidence also corroborates P21’s account of her reactions to the respondent’s conduct during the night, at least in part. P2 said he did not get the impression that P21 was led away from Hopscotch against her will, but rather that she did not know what was happening. This is consistent with P21’s evidence that she felt vague and uncertain. From P21’s description in the taxi, P2 formed the

66 Sawyer v R [2000] NSWCCA 179 67 See discussion in Lehrmann at [112]-[119], [690] impression that she went along with the kissing and touching out of politeness and naivety, despite being “a bit shocked” and uncomfortable. P2’s impression was that, once at the apartment, P21 was more assertive in telling the respondent to stop.

58. P21’s failure to tell P2 about the toothbrush, the bedroom and the respondent being married does not itself undermine the reliability of what she did tell him about consent. The courts have recognised that whilst a person may remember and/or report specific details about a traumatic event, they may not recall tangential details, and they may recall or mention some details but not others. However, it does not “invariably follow that the evidence is necessarily 68 embellishment rather than actual recollection”.

59. P6 gave evidence about her conversation with P21 at about 9:00am or 10:00am on 1 December. P6 recalled being told that P21 went to the respondent’s apartment in a taxi and the respondent was “handsy” during the journey. P6 said she was told that the respondent was also “handsy” at the apartment, grabbed P21 and threw her on the bed, that all sexual activity occurred in the bedroom, and that the respondent was trying to stick his hands up P21’s dress and touch her while she was on the bed trying to charge her phone. P6 recalled being told that P21 was pushing the respondent away and saying ‘no’.

60. P5 gave evidence about her conversation with P21 after lunch on 1 December. She recalled being told that the respondent “aggressively” tried to initiate sexual contact with P21 against her will and pushed her into the bed frame. She was told that P21 tried to leave but her phone was “dead” and the respondent prevented her from leaving at one stage.

61. P3 gave evidence about her conversation with P21 a few days later, on 3 or 4 December. She recalled being told that P21 had taken a taxi or Uber to the respondent’s apartment. The sequence of events was unclear from her evidence but P3 recalled being told there had been a struggle, that P21 tried to leave, that the respondent had tried to sexually assault P21, put his arms on her body and

68 Singh v R [2025] NSWCCA 34 at [119] citing Lee v R [2023] NSWCCA 203 at [53]; also see Reed v R [2006] NSWCAA 314 at [64]; Davis at [129]-[134], [146]-[147] forced her down on the bed. P3 was told that P21’s phone had “died” so she could not contact anyone but then she managed to flee after plugging her phone in to get some charge.

62. In assessing the probative value of the evidence from P3, P5 and P6, the time gap was longer than P2’s first conversation meaning P21 may have had time to reflect. Her accounts to those witnesses were also less detailed. Nevertheless, their evidence was generally consistent with P2’s, except that they recalled sexual 69 activity occurring in the bedroom rather than on the shelving unit. P3, P5 and P6 each corroborated P21’s direct evidence of non-consent and her communication of non-consent to the respondent.

63. In addition to the recent complaint evidence, I have considered other plausible hypotheses.

64. The respondent’s evidence was that P21 left the apartment after she discovered he was married, namely when she saw a photo of P20 on the bedside table and witnessed the respondent trying to remove his wedding ring. His case is that the sexual activity was consensual up to that point, and that P21 became upset and left. On that account, P21’s distress during her first conversation with P2 could be explained by her reaction to having gone home with a married man.

65. The respondent’s account is consistent with P21’s account except in relation to 70 the photo, which P21 said she did not recall seeing. P21 agreed that she became aware the respondent was married while at his apartment, most likely in the bedroom, and that she later left the apartment. However, P21 did not agree that she left the apartment in a state of distress because of that discovery. 71 66. The issue of alternative hypotheses was considered by Lee J in Lehrmann. Lee J determined that the court’s task in civil proceedings was not to choose between competing narratives in the abstract but to test the alternative hypotheses against the totality of the evidence and form a reasonable satisfaction that one hypothesis

69 Whilst P2 did not recall being told about the bedroom, he did recall P21 telling him that she was pulled in certain areas of the “rooms”: BD p 141 (XN2) 70 BD pp 428-429 (XXN) 71 At [133]-[135] 72 was more probable than the other. This is a different inquiry to criminal proceedings where any reasonable hypothesis consistent with innocence must be 73 excluded beyond reasonable doubt before guilt can be found.

67. I consider the alternative hypothesis advanced by the respondent to be less probable for three reasons.

68. First, the timing and content of P21’s first conversation with P2 makes it inherently unlikely that P21 fabricated or exaggerated an account of non-consensual activity to conceal her discomfort at having returned to the home of a married man.

69. Second, P2’s evidence has probative value beyond establishing that P21 was distressed: it supports P21’s account of non-consensual sexual activity at the apartment. According to P2’s evidence, non-consensual sexual activity took place on the shelving unit. This was in the dining room and before P21 moved into the bedroom where she realised the respondent was married. Also, P2 recalled P21 telling him she was trying to get away and get her phone on charge to contact an Uber to get home. This aligns with P21’s direct evidence that she charged her phone after finding out the respondent was married and that the non-consensual sexual activity continued while it was charging. On that basis, I find it more likely that P21’s statement to the effect of “stop, you are married” was made in a further attempt to stop the respondent after her earlier efforts had failed, rather than as an indication that consent had been given prior to that point.

70. Third, the respondent’s sequence of events is not consistent with recent complaint evidence given by P3, P5 and P6. Those witnesses each recalled P21 describing her attempts to charge her phone and that she left the apartment after she was able to call an Uber. Their evidence does not clearly establish when P21 said words to the effect of “stop, you are married”. However, it is possible that she did so before the phone was sufficiently charged, and this aligns more closely with the sequence of events that P2 recalled P21 describing to him.

72 At [135]; also see Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) [2025] FCAFC 67 73 M v R [1994] HCA 63 at 493-494 71. Having considered the totality of evidence, I am comfortably satisfied that P21 did not consent to any sexual activity in the apartment, whether on the shelving unit or in the bedroom.

Findings on respondent’s knowledge of, or recklessness about, consent 72. I am also comfortably satisfied the respondent knew, or was reckless as to whether, P21 consented from the start of the sexual activity on the shelving unit until it ended in the bedroom.

73. P21’s repeated attempts to get down from the shelving unit, push the respondent away and put on her underpants were clear physical indications of non-consent.

74. In the bedroom, her efforts to roll away, push or kick the respondent, pull up her dress and tell him to stop were further physical and verbal indicators that she did not consent.

75. The risk that P21 was not consenting would have been obvious. I find that the respondent either knew P21 did not consent, failed to consider whether she was consenting, or realised the possibility that the was not consenting, but proceeded regardless.

Conclusion on Charge 1 and characterisation 76. Charge 1 is established.

77. The respondent’s conduct under Charge 1 constitutes professional misconduct within paragraphs (a), (b) and (c) of the definition of ‘professional misconduct’ in section 5 of the National Law. This characterisation is consistent with the 74 approach taken in other sexual assault cases involving health practitioners.

…………………………… Senior Member E Morrison

74 For example, Osteopathy Board of Australia v Caminiti [2025] ACAT 37; Chinese Medical Board of Australia v Zhou [2020] SACAT 23 Date(s) of hearing: 1,2 and 4 December 2025 Counsel for the Applicant: Ms P Bindon Solicitors for the Applicant: Australian Government Solicitor Respondent: In person Annexure A Annexure B Annexure C Annexure D