Murray v R

Court of Criminal Appeal (NSW)|2022-04-20|Before: Harrison J, Fagan J

Other evidence in the prosecution case

MJ gave brief evidence, essentially confirming that she (with her then boyfriend, JM), had driven the complainant and the applicant to the complainant's home at about midnight. MJ had been present at the Australia Day event, and had observed the conversation between JM and the applicant. She said: "He [the applicant] was shocked. He did look shocked."
MR, the friend to whom the complainant had sent a text message at 3.23 am, gave evidence that she had met the complainant in the early afternoon of Boxing Day. She said: "Honestly, I saw a really devastated face. I have known her for a long time, and she looked terrified … I hugged her straight away, and she sobbed into my arms … I just remember I hated seeing her sad, so I was trying to joke around and make it feel light hearted, and then I remember telling her that we will figure it out and we will do something about it."
She then said: "So after we sat down, I will say it was quite jumbled, just because it was in between her sobbing, pretty much, and her trying to pull herself together to say what happened. But what I do definitely remember is she said that she was asleep and she woke up to Alan behind her with his hands down her pants. She then continued to say that he tried to put his penis in her hands and tried to make her touch him. She then said that she - she was terrified and that she felt like she was paralysed, and like she couldn't move. And she told me she kept wanting to pretend she was still asleep as to make him get off, or like he would leave her alone."
The complainant's mother gave evidence that she worked on Boxing Day and did not see the complainant until she (the mother) arrived home after 6.30 pm. She said that she asked the complainant how her day was and the complainant: "… just kept saying, 'Okay', and I knew that wasn't like [the complainant] and then she went upstairs after a while and then she come downstairs and just blurted straight out, 'Alan raped me'." She said that the complainant was "very distraught" and: "She said that they got dropped off by [MJ] and they were both upstairs. He was going to catch an Uber from there and she fell asleep and then she's woken during the night and he had his fingers down her pants and he had his penis in her hand and then she froze … and he was trying to get inside her and then when he couldn't get inside her he got up and he put his pants on and he's left."
JM, who at the time was the boyfriend of MJ and a close friend of the complainant, confirmed that he and MJ had driven the complainant and the applicant to the complainant's home. He gave evidence of the events of 29 December, and of Australia Day. He said that on 29 December he was at home but other of their friends had gone out for dinner to a restaurant at Miranda. The complainant was at the dinner but then called, sounding "quite distressed" and asked to be picked up from the restaurant. When he picked her up she was "quite distressed and quite upset". She declined to respond to JM's questions about what had happened. JM said that he then did not see the complainant again until Australia Day when there were drinks at his home to watch the fireworks. He said: "… I finally took her aside and asked her what - what's been going on, like, what had happened. She then proceeded to tell me that on the night of Christmas when we dropped Alan over at her place, she'd fallen asleep. She then woke up to his hands down in her pants. He then tried to put his penis inside of her but that she wasn't wet, so nothing - it didn't happen. So, he then tried to lubricate her himself by spitting on his fingers and putting his hand down her pants again, but it still didn't work. So, I then asked why it was sexual assault and she told me that she wasn't into it at all. She didn't move. I asked her why - why didn't she try and stop him and she said that she froze like an anxiety attack. She couldn't move, she couldn't - she couldn't do anything. He then left shortly afterwards."
JM said that after the fireworks he saw the applicant and his ex-girlfriend walking towards where he was, in the company of the complainant. He tried to stop the applicant from approaching and told him "that he couldn't be around us right now". He said: "He then proceeded to ask me why, what had happened, and I told him that [the complainant] said that he had sexually assaulted her. He got quite angry and worked up by that and then said to me, like, 'why would she say that? When did this happen?' I then told him it was on the night of Christmas when we had dropped him off there. He proceeded to tell me that he only went in there to charge his phone and then left at 3 am to go to [BS's] house to stay the night. He was quite worked up about it and still tried to go over to kind of see [the complainant], but I told him that it wasn't the time and - and then he goes, 'well what am I meant to do about this now?' and I said 'well if - if you didn't do anything wrong, then nothing will come of it and you'll be okay'. And he said, 'well what if people find out?' and I said, 'well if people find out and you didn't do it, then it will be fine because you'll be able to defend yourself and tell them that this isn't what happened'."
JM said that the reason given by the applicant for going to BS's house was that an Uber (presumably to his own home) would be too expensive. BS later gave evidence that she and her family were away from home from Christmas Day until 27 December and that, therefore, the applicant could not have gone to her home.
It was put to JM in cross-examination, and rejected by him, that he was mistaken in saying that the applicant told him that he left the complainant's home to go to BS's home. (In his evidence the applicant said that JM's evidence in this respect was "just plain wrong" because the friendship group was so tight that when anyone went away everybody knew they were away.)

Other evidence in the defence case

Another witness, CA, gave evidence in the defence case. CA was a (female) friend of the applicant. She was present at the Miranda restaurant on 29 December 2018. The complainant was also present. CA said that the complainant told her that the applicant had "sexually assaulted" her. CA said: "All she said was that he touched her, but he didn't try and have sex with her. … She said she was laying on her stomach …"
CA confirmed that the complainant said that the applicant was "touching her" but did not say how. In cross-examination CA said that the account she had given of what the complainant told her was the "exact words" used by the complainant.
It was acknowledged by the Crown that the applicant had no criminal record.

The issues in the trial

As set out above (at [23]) the issue in respect of counts 2, 3 and 4 was whether the applicant had engaged in the conduct alleged by the complainant. The issues in respect of count 1 were not so clearly defined. Although the Crown Prosecutor put to the jury that the only issue with respect to that count was consent, defence counsel made no reference to the applicant's acknowledgment that he had placed his hands inside the complainant's underwear. Certainly no suggestion was made that the complainant consented to that conduct.
One theoretically possible issue in relation to count 1 was whether the applicant believed, on reasonable grounds (notwithstanding that the Crown proved that the complainant did not consent) that the complainant had consented to the sexual touching the subject of that count. It is on that basis that Fagan J would allow the appeal, in relation to all counts. That was not, however, an issue that was ever raised, even subliminally, on behalf of the applicant.
A criminal trial is both accusatorial and adversarial. The parties are, and are entitled to, identify and define the issues to be litigated. In Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 ("Ratten"), in a frequently cited passage, Barwick CJ said (at p 517) of the criminal trial process: "It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility." (italics added)
In Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46 ("Doggett") at [1] Gleeson CJ said: "In our system of criminal justice, a trial is conducted as a contest between the prosecutor (almost always a representative or agency of the executive government) and the accused (almost always an individual citizen). In the case of a trial by jury for an indictable offence, the presiding judge takes no part in the investigation of the alleged crime, or in the framing of the charge or charges, or in the calling of the evidence. Where the accused is represented by counsel, the judge's interventions in the progress of the case are normally minimal. The prosecution and the defence, by the form in which the cases are conducted, define the issues which are presented to the jury for consideration. These include not only the ultimate issue, as to whether the prosecution has established beyond reasonable doubt the accused's guilt of the offence or offences alleged, but also the subsidiary issues which, subject to any directions from the trial judge, are said to be relevant to the determination of the ultimate issue. Such a system, sometimes described as adversarial, reflects values that respect both the autonomy of parties to the trial process and the impartiality of the judge and jury." (italics added)
Gleeson CJ returned to this theme in Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 ("Nudd") at [9]; saying: "A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, the parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise."
It may be accepted that, notwithstanding these admonitions, a trial judge is under a duty to put to the jury, with adequate assistance, any matters in which the jury, upon the evidence, could find for the accused: Pemble v The Queen (1971) 124 CLR 107 at 118 per Barwick CJ; [1971] HCA 20; James v The Queen (2014) 253 CLR 475; [2014] HCA 6 ("James") at [10]. That extends to any defence or partial defence that is open on the evidence; James at [31]; Baden-Clay at [62].
The principles stated in Ratten, Dogget and Nudd have been reaffirmed by the High Court as recently as 2016, in Baden-Clay at [48]. In that case the respondent had been convicted in a jury trial of the murder of his wife. An alternative verdict of manslaughter, on four possible bases proposed by defence counsel, had been left to, and rejected by, the jury (see [60]-[62]). On appeal a further possible hypothesis was raised and accepted by the appellate court (see [3]). The scenario so hypothesised was inconsistent with the evidence given in the trial by the respondent (see [52]). Of this course, the High Court said: "54 … Not only did the respondent not give evidence which might have raised the hypothesis on which the Court of Appeal acted, the evidence he gave was capable of excluding that hypothesis. 55 The Court of Appeal's conclusion to the contrary was not based on evidence. It was mere speculation or conjecture rather than acknowledgement of a hypothesis available on the evidence. … 58 The Court of Appeal should not have treated the case as one in which it was open to it to identify a hypothesis as to the circumstances of the death of the deceased on the basis that the respondent's evidence could be disregarded as if it had not been given at all. 59 There remains another difficulty with the Court of Appeal's approach. The Court of Appeal's hypothesis was never put to the jury by the respondent's counsel, either directly or indirectly. The hypothesis was contrary to, and excluded by, the case that the respondent put to the jury. … 63 But it is quite another matter, as occurred on appeal to the Court of Appeal and again to this Court, to contend for a hypothesis which was not put to the jury for tactical reasons, which is directly contrary to evidence of the respondent at trial, which is directly contrary to the way in which the respondent's counsel conducted the defence and which, in response to direct questions from the trial judge, was expressly rejected by the respondent's counsel. The issues and available lines of argument to be pursued were narrowed by the way the case was conducted at trial."
So it is in the present case. No submission was made to the trial judge that the jury ought to be directed, either with respect to count 1, or, notwithstanding the applicant's outright denial of the conduct constituting counts 2, 3 and 4, with respect to those counts, that a defence of honest belief based on reasonable grounds might be left to the jury. With respect to counts 2, 3 and 4, such a defence would have been directly contrary to the sworn evidence given by the applicant that the conduct alleged by the complainant simply did not occur.
Just as it is for the parties to define the issues to be litigated in a criminal trial, so it is for the parties to define the issues in an appeal, or in an application for leave to appeal. No ground of appeal in this case raised any issue concerning the potential for a defence of honest belief on reasonable grounds on the part of the applicant that the complainant consented, either to the conduct the subject of count 1, or to the conduct the subject of counts 2, 3 and 4; neither did any of the argument in support of the sole proposed ground of appeal. That possibility was raised for the first time in argument in this court, by the court. As in Baden-Clay, it would be wrong, in our firm opinion, to determine the application on that basis. It follows that we are unable to agree with the reasoning of, or the orders proposed by, Fagan J.

Were the verdicts unreasonable?

A ground of appeal asserting that a verdict is unreasonable derives from s 6 of the Criminal Appeal Act 1912 (NSW) which relevantly provides: "6(1) The court on any appeal under s 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence …"
The tests to be applied by an appellate court considering such a ground have been set out above: (see [8]). To repeat, the court must ask itself: 'whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'." (Pell, at [43]).
In Pell, the High Court proceeded on the basis that the jury had accepted the complainant's evidence as "thoroughly credible and reliable", but nevertheless, following careful scrutiny of the evidence, concluded that the "compounding improbabilities" in that case were such to have required the jury, acting rationally, to have entertained a reasonable doubt as to Archbishop Pell's guilt (see at [119]).
In this case, three features of the evidence were identified as indicative of similar frailties in the Crown case.
The first, and most powerful, of these was what was described as the minimisation by the complainant of her relationship with the applicant. This was a reference to the complainant's denial of any significant "one on one" communications or interactions with the applicant, a denial that, it was contended, was belied by the evidence of the numerous Facebook messages between the complainant and the applicant, some of them as recent as November 2018. It was hypothesised that, perhaps, the complainant so characterised the relationship because she was concerned that it would be misinterpreted to cast doubt on her claim that the sexual activity had been non-consensual (in anticipation of a defence that it had been consensual) - but, it was promptly pointed out, that was not the complainant's evidence. That is, the complainant did not claim that, in anticipation of the applicant's raising a defence of consent, she had played down the level of her interactions with him. On behalf of the applicant it was also hypothesised as equally possible that the complainant did not want to reveal the true nature of her relationship with the applicant because the messages could support an inference that she was (sexually) interested in the applicant, and that the Crown case did not exclude that possibility.
One difficulty with that later proposition is that there is nothing in the Facebook messages that are in evidence (Exhibit 1) that indicate anything other than a platonic friendship between the two, and, although the complainant was extensively cross-examined to challenge her account of the relationship, it was not suggested that (prior to Christmas Day 2018) she had harboured any sexual interest in the applicant.
Moreover, as was pointed out on behalf of the Crown, despite the number of messages over several months, throughout the period represented by Exhibit 1 (January to November 2018) only two instances of telephone conversations appear. This is not indicative of a high level of personal interaction. The Crown argued that, on proper analysis of the communications, the level of interaction between the two was overstated in the applicant's submissions.
The suggestion that the complainant and the applicant were more actively involved with each other than the complainant acknowledged was a prominent feature of the submissions put to the jury in defence counsel's final address. Considerable weight was placed on what was characterised as a significant discrepancy between the complainant's portrayal of the relationship and the reality as evidenced by messages contained in Exhibit 1. Indeed, the submissions on the subject were the opening gambit in the address, and are recorded in over four pages of transcript. Notwithstanding the force with which those submissions were put, the jury accepted the complainant as a credible and reliable witness as is evidenced by their verdicts. It cannot be thought that the jury overlooked or disregarded the messages or their importance in their assessment of the complainant's credibility.
The discrepancy, to the extent that it is a discrepancy, of course remains a factor to be taken into account in the assessment that this Court must undertake. There is force in the Crown's submission to the effect that the Facebook messages do not indicate a level of interaction significantly higher than the complainant asserted.
The second point made on behalf of the applicant concerned the accounts given by the complainant and the applicant about the light in the bedroom. The submissions in this respect are difficult to follow. Both the complainant and the applicant agreed that, at the time of the sexual activity, the light was off (the complainant said that the room was "pitch black"). Neither gave any evidence of how, when, by whom or in what circumstances the light was turned off. It was submitted: "55 This was a matter of some importance because on the complainant's version she just fell asleep not expecting that the applicant would also be in the bed with her because she thought he was going home after charging his phone. However, as revealed in cross-examination, the applicant and the complainant were both in the bed together after the lights had been turned off. This was a reasonable indication that at least the complainant, and probably also the applicant, was going to sleep at this point, and there had been no discussion about the applicant ordering an Uber. 56 It is possible that the complainant assumed the applicant would leave, despite the absence of any discussion to indicate as such. However it is equally possible (if not more possible) that she would have thought that he was going to stay in the bed with her. The Crown case did not exclude this as a possibility or otherwise explain this evidence. The possibility that the complainant knew the applicant was going to stay in her bed that night because he was lying next to her in bed when the lights were out casts real doubt on her account. It is suggestive of sexual interest between the pair conducive to consensual sexual activity. It also makes unlikely the complainant's assertion that when the applicant later engaged in sexual activity with her she was so fearful she did not say anything to him to get him to stop."
These submissions are more apposite to a defence of consent than to a denial of sexual activity; in circumstances where the applicant denied the occurrence of the conduct the subject of three counts, consent simply does not arise. It was never made clear how it was contended that, in circumstances where consent was not an issue, the circumstances in which the light was turned off had any bearing on whether the conduct the subject of the counts 2, 3 and 4 took place. How, when, by whom and in what circumstances the light was turned off is immaterial to the issues between the parties with respect to those counts. Nor is it clear what bearing that circumstance has on count 1.
The third point made on behalf of the applicant is expressed as: "The applicant's version of what occurred was reasonably possibly true". The submission was made: "57 … Despite the applicant's prior lack of sexual interest in the complainant, they were close friends who were comfortable with each other, they had both been drinking and they were in the complainant's bedroom playing with a puppy in the middle of Christmas night. It is unsurprising in these circumstances that some low-level consensual sexual contact eventuated." The last sentence, presumably, is intended to be a reference to count 1, as to which no submissions were made to the jury.
The submissions continued: "58 Further, that the complainant was the ex-girlfriend of the applicant's close friend … explains why the applicant suddenly stopped what he was doing and left. An attack of conscience in such circumstances is not inconsistent with human experience. That the complainant, after being rejected by the applicant may have then sought to recharacterise what occurred as 'rape' is also not a farfetched or fanciful scenario." Just what was intended to be conveyed by this paragraph is unclear. On one view, it suggests an element of consensual conduct (possibly plausible in relation to count 1, but irrelevant in relation to counts 2, 3 and 4); the submissions may have been intended to contain an oblique suggestion that not only did the complainant "recharacterise" what occurred (in relation to count 1) as rape, but that she also fabricated the conduct, he described as constituting counts 2, 3 and 4 - something that was not put to the complainant, nor to the jury.
In submissions in support of the third point, it was expressly accepted that the trial judge gave a direction in accordance with Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, in which Brennan J, with whom Deane J agreed (both dissenting in the result) said at [11]: "The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."
The complaint now made is not of failure by the trial judge correctly to direct the jury, but that that direction ought to have resulted in a reasonable doubt in the minds of the jury about the guilt of the applicant on all four counts. We do not agree. None of the submissions made provides any basis for departing from the jury's assessment of the complainant's evidence as credible and reliable. Our own assessment coincides with that of the jury.
In this context, it is relevant to advert to other evidence that supported the credibility of the complainant, not least of which is the text message she sent to MR, at 3.23 am, asserting her belief that she had been raped, and the evidence given by MR and the complainant's mother, each describing the complainant's state of distress. This evidence was strongly corroborative of the complainant's account. The accounts given by her to each of those witnesses maintained consistency.
We have carefully considered the whole of the evidence. We are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of all counts on the indictment. The evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of the offences (Dansie at [7]).
It follows that, while leave to appeal should be given, the appeal must be dismissed. None of the arguments advanced on behalf of the applicant is persuasive.
FAGAN J: Alan Joshua Murray appeals against his conviction following trial by jury on four counts of sexual offending. Her Honour Judge Flannery SC presided at the trial, which was conducted between 16 and 23 November 2020. The indictment contained three counts of sexually touching MV, a female, contrary to s 61KC(a) of the Crimes Act 1900 (NSW) and one count of sexual intercourse with the same complainant without her consent and knowing that she was not consenting (s 61I of the Crimes Act). All four offences were alleged to been committed in the early hours of 26 December 2018 in the complainant's home at Menai, a southern suburb of Sydney.
There is only one ground of appeal: The verdicts were unreasonable having regard to the evidence. As this ground involves a question of fact, leave to appeal is required under s 5 of the Criminal Appeal Act 1912 (NSW). In my view leave should be granted and I will refer to Mr Murray hereafter as the appellant.
On 12 February 2021 the learned trial judge sentenced the appellant to an aggregate term of imprisonment of 3 years commencing on 11 February 2021 and expiring on 10 February 2024 with a non-parole period of 12 months that expired on 10 February 2022. Pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) the appellant was released to parole on 10 February 2022, before this appeal was heard. There is no application for leave to appeal against sentence.

Issues at trial

At trial the appellant gave most attention in his defence to two issues. The first concerned the nature and extent of the physical acts that took place between himself and the complainant on the night in question. The appellant was aged 19 and the complainant was 20 at the time. They had attended high school together from the age of about 13 and had remained friends thereafter within a wider group of about 18 young people who regularly socialised. The appellant and the complainant had both been at a gathering on Christmas night at the home of one of their mutual friends and both of them became moderately affected by alcohol. It was common ground that shortly after midnight two other friends drove them from the gathering to the complainant's house, where she invited the appellant to her bedroom to play with a puppy. They sat on her bed together, with the dog. The complainant then changed into night clothes and lay beside the appellant on the bed, talking. She fell asleep while the appellant was still there beside her.
The complainant's evidence was that she awoke at about 3:00am to find the appellant squeezing her right buttock. She said that he then digitally penetrated her, tried to enclose her hand around his penis and attempted penile intercourse. The complainant estimated that aspects of this activity occupied periods that "felt like" or "seemed like" so many minutes, totalling about 15-20. The appellant then abruptly ceased, got up and left the house soon after. The complainant said that she lay still and pretended to be asleep throughout the appellant's intimate touching of her.
The appellant's version was that he also fell asleep and that when he awoke at about 3:00am he and the complainant were facing each other. He said it was an "intimate moment", they kissed for a minute or two and he put his hands on her back and moved them down to her bottom, inside her underpants, for a few minutes. The appellant said that was the extent of the contact between them and that it lasted only five minutes or so before he thought "it was not such a good idea" and got up. He told the complainant he was going to his own house, then ordered an Uber and departed.
The second matter upon which the appellant's defence concentrated was a challenge to the complainant's evidence that she did not consent to any intimacy. That was to a degree connected with the first question, of what intimacy actually occurred, because the appellant contended that the complainant reciprocated the initial kissing and that that was a manifestation of consent to so much of the sexual activity as he acknowledged, limited to contact of his hand on the complainant's buttock as alleged in count 1. The complainant said they did not kiss.
These direct conflicts of testimony about what occurred on the complainant's bed and about whether the complainant consented to whatever occurred led defence counsel to pursue at trial several grounds of challenge to the complainant's credit. The complainant was cross-examined concerning variances between her evidence and, on the other hand, statements that she had made to her friends, her mother and police. The credit attack included cross-examination about the degree of closeness of the friendship between the complainant and the appellant, particularly over the 12 months preceding the incident. The complainant's evidence in chief conveyed an impression that their association was only as members of a larger social group whereas defence counsel sought to establish that they had extensive one-on-one communications and some in-person contact just between the two of them.
This cross-examination, albeit directed to the complainant's credit, brought forth evidence that was significant to how the appellant may have perceived the situation when he was invited by the complainant to her bedroom. The evidence of their interactions throughout 2018 bore upon whether the jury could be satisfied beyond reasonable doubt that the appellant knew the complainant was not consenting to whatever intimate contact took place between them in the early hours of 26 December 2018. I find it necessary to refer to the evidence in detail, with particular attention to those parts of it that are relevant to whether it was open to the jury to infer beyond reasonable doubt that the appellant knew the complainant did not consent. I regret that this leads to some duplication of identifying evidence that has been summarised or quoted in the judgment of the majority.

Events prior to 25 December 2018

The appellant and the complainant both left high school during year 11 in 2015. The complainant described their relationship at high school as "acquaintances" whereas the appellant said that they "became closer and closer" over their school years "as did everyone in that group". Over the three years after they left school up to the date of the alleged offences the group of which the complainant and the appellant were part comprised nine young men and an equal number of young women, who socialised together frequently. About half of the group had attended the same high school. One medium of their socialising was by posting messages on a "group chat" on the Facebook Messenger application. From time to time all or some of them went out to dinner together or gathered at one another's houses.
On Thursday 13 December 2018 the appellant posted a message to the group requesting that someone drive him from his home at Burraneer Bay, near Cronulla, to a work Christmas party in north-western Sydney the following evening. The complainant agreed to do this. She said that it took "a few hours". As described, the journey would have traversed the metropolitan area from one extremity to the other. "A few hours" would accord with the time required for the return trip. The complainant said that there was conversation between them in the car but no "romance". The complainant left the appellant at the venue for his Christmas party and returned home. He later sent a message when the party was over requesting that she return and drive him home but she declined. In messages sent on 15, 20 and 21 December the complainant asked the appellant to transfer money to pay for the petrol she had used on the trip.

Christmas night 2018

On Christmas Day 2018 TP, a member of the social group, posted a message: "Drinks at mine. 4pm tomorrow". TP's house was in Menai, about one kilometre from where the complainant lived with her parents. The complainant arrived at TP's house by Uber at about 6:00pm. There were about 10-15 members of the friendship group present, including the appellant. The appellant's former girlfriend was not a member of the group but she was also there. The complainant remained at this gathering until about midnight, during which time she conversed with everyone present. The guests swam in a pool, consumed alcohol, played card games, listened to music and talked. The complainant spoke to the appellant during the evening but she said that there was no "romance or flirtation in that conversation".
In response to questioning by the Crown, the appellant said that he did not find the complainant physically or sexually attractive. He said that the nature of their relationship was that although there was flirtation between them, "there was never a romance behind it". The appellant said that at the party on Christmas night he was not hoping for there to be romance between them.
The complainant described her level of intoxication by midnight as "about a 6 out of 10". She had a headache and she told some of the others that she was going to walk home. JM and his partner MJ offered to drive her. The appellant was present at this conversation. The complainant gave evidence that the appellant said he would come back to her house with her to charge his phone and to order an Uber, to which she replied, "No worries". JM's evidence was to similar effect. The appellant gave evidence that the battery of his phone was flat and that he had to recharge it in order to use the Uber application. The complainant's house was not much closer to his own home than TP's house but he said that he wanted to wait before booking an Uber, anyway, because the price would go down in the early hours of the morning. There was other evidence tending to suggest that the appellant was careful with his money. The appellant said that the complainant invited him to her house for this purpose. The jury may have regarded it as not significant whether she invited him to the house or merely acquiesced in him inviting himself.
According to the complainant's evidence her parents were "very chilled out" and "people crashed on my lounge all the time". She said that the appellant had previously "crashed" at her house, "maybe two or three times on the lounge with other people staying over also". The appellant said that he had stayed there as many as 20 times in the past. The complainant and the appellant accepted JM's offer of a ride and were dropped at the complainant's house at about 12:15am.
The lounge room of the house was on the ground floor. The bedrooms of the complainant and her parents were on the first floor. In cross examination the complainant accepted that she understood the appellant was just going to charge his phone and then order an Uber, all of which could have been done in the lounge room downstairs with less likelihood of disturbing her parents who were asleep. However the complainant said that upon entering the house she invited the appellant up to her bedroom. The appellant said that he was invited up "to see the puppy". The complainant went into her parents' bedroom, which adjoined her own with a common wall, and picked up an 11-week-old puppy that the family had recently acquired. She brought the puppy into her bedroom and they sat together on her bed and played with it.
Soon after, the complainant changed into her nightclothes, being a loose fitting sleeveless T-shirt, over her underpants and bra. The complainant said that she "made sure Alan was facing the wall" before she changed. The appellant said that when the complainant changed in his presence he turned away because, "obviously it's the polite thing to do". The complainant agreed in cross examination that thereafter they lay together on the complainant's bed talking for about 30 minutes before she fell asleep. The complainant had plugged the appellant's phone charger into a power outlet near the head of the bed. The complainant lay on the right-hand side of the bed, as viewed from the foot. The appellant said that he had never previously been alone in the complainant's bedroom with her, or in any bedroom where she had changed her clothing in his presence.
The complainant said that at some time between 12:30am and 1:00am she fell asleep. She agreed in cross-examination that up to that time she had not prompted the appellant about calling an Uber, or suggested that he should leave, although 30-40 minutes had elapsed since they arrived at her house. She said that when she fell asleep the appellant was still on the bed, the dog was still there and the lights were off. She did not recall who had turned them off. She said that she had never before been in that situation with the appellant, that is, alone with him, lying together on her bed, she in her nightclothes and with the lights off.
In answer to the Crown the appellant denied that in going to the complainant's house he was "trying to engineer a situation where [he] might be able to have some sexual activity with her". The appellant's evidence in chief was that when he fell asleep the lights were on in the room, he had his T-shirt off and was in his shorts only and the puppy was still on the bed. He also said there had been no conversation between himself and the complainant in her bedroom about him calling an Uber and leaving to go home. When cross-examined the appellant said that he took his shirt off "as it was a hot summer's night and probably uncomfortable". He said he was still planning to take an Uber back to his own house, that he did not intend to stay the night with the complainant but that he "must have just dozed off" while lying down.

The complainant's description of the alleged offending conduct

The complainant said that about two hours after she fell asleep she was lying with her left arm to her side and her right arm hanging over the edge of the bed. Her head was turned to the right. The appellant was lying on the left side of the bed. The complainant said that she was woken by feeling the appellant's hand in her underpants, squeezing her right buttock. This constituted the first instance of sexual touching, charged in count 1. The complainant said that the top sheet and doona on the bed were not covering her but she did not claim that these had been removed while she was sleeping. The effect of the evidence was that she had fallen asleep lying on top of the bedding. She said that upon feeling the appellant's hand touching her she lay "extremely still to make out as I was still asleep". He continued to squeeze her buttock for about three minutes. When asked why she pretended to be asleep she said: A I was scared. I had anxiety if I were to say no or stop him, it would be awkward.
In cross-examination the complainant said that while the appellant was initially touching her bottom she felt she would be "embarrassed to roll over and say no". She gave these answers: Q But when you say that you would be embarrassed to roll over and say no, you assumed that if you did that, that would be the end of it. Correct? A Yes. Q […] you're asking the jury to accept that it was embarrassment of [the appellant] realising that you were aware of what he was doing that stopped you from saying no? A Yes. Q But at the time, you knew that if you said no, there'd be no further problems because the activity would stop. That's what you just said, didn't you? A Yes.
The complainant said that the appellant then put his hand between her legs and touched the area between her vagina and anus. She said that she remained "as still as I could" and that she was "trying to keep my breathing very calm as I was crying and didn't want him to know I was crying". The appellant then moved his hand away, moistened his fingers, and inserted two fingers in her vagina. She said he moved his fingers in and out "for what felt like five or 10 minutes". The complainant said that while this was occurring she was "laying still, crying and trying to control my breathing". The alleged digital penetration was charged as sexual intercourse in count 2.
The complainant said that during the alleged digital penetration she was still "trying to avoid the embarrassment of saying no". When it was put to her that it must have been evident, from what she described, that the appellant was trying to engage her in sexual activity she initially answered, "No comment". When the question was pressed she answered "No" and similarly denied that she realised the appellant was trying to engage her in sexual activity by the subsequent alleged acts, comprising counts 3 and 4. Those answers are irreconcilable with what the complainant told her friend MR (see [133] below), what she told her mother (see [134]) and what she told JM (see [140]). On the other hand they are consistent with her description of the events to CA (see [136]).
The complainant said that the appellant next put his penis onto her left hand, which was positioned palm upward to her left side. She gave the following evidence: A [He] tried to move my fingers to hold it, not - he wasn't forcing me to squeeze it, but just hold it. Q How was he doing that? A With his hand, moving my fingers around his penis. Q What did you do when he tried to move your fingers onto his penis? A I tried to sort of stop him from doing that, but again, not in a way that he would know I was awake. […] A Just moving my fingers to an unclenched position. The complainant said that this continued for what seemed like five to 10 minutes. The second instance of sexual touching, in count 3, was based on this evidence.
The complainant said that her neck became sore in the position in which she was lying, so she moved her right hand up from where it was hanging over the edge of the bed and placed it under the left side of her face. She said that she did this slowly in order not to let the appellant know that she was awake. The complainant said that the appellant at this stage placed his hands beside her hips and tried to raise himself and to "put his penis into my vagina", presumably from behind because she did not say that she ever changed her position from lying face down. The complainant said that the appellant tried to penetrate "about three times and then he gave up", while she kept still throughout. This evidence was relied upon as the third instance of sexual touching, count 4.
The complainant gave the following answers under cross-examination: Q [The] account that you've given about the accused sexually assaulting you for what would be, would you agree around 20 minutes - A Roughly, yes. I don't have an exact time. Q -- with the only thing stopping you from ending it is anytime, was simply because you were scared to feel embarrassed at saying no? A Yes. Q The account you've given is false, isn't it? A (No verbal reply) Q Correct? A I don't know. Q You don't know whether the account you've given is false? A No
The complainant said that after the appellant "gave up", he "rolled off me", used his phone in some manner that caused the screen to illuminate for about one minute, then put on his board shorts and went downstairs. She said that she did not consent to any of the sexual touching or penetration that she described. With respect to sobriety, it is common ground that neither the complainant nor the appellant had consumed any further alcohol after midnight, that is, during the three hours before the intimate contact described by the complainant. The appellant said he was unaffected by the time he woke up. He said that he engaged in less extensive intimacy, as described above at [105].
The complainant gave evidence that she had suffered from anxiety for 4-5 years. The evidence did not reveal whether this was a professionally diagnosed condition or how severely the complainant suffered from anxiety or how, if at all, it manifested itself in her behaviour. There was no evidence that the appellant knew the complainant suffered from anxiety or that he had witnessed any effects of anxiety upon her conduct.
According to the complainant's evidence she left her bedroom, crossed a hallway to a bathroom about 2-3 metres away, washed herself and then returned to her bed. She sent a text message to her friend MR, in these terms: "I think I just got raped". Independent evidence showed that the message was sent at 3:23am. The complainant said that after sending the message to MR she heard the appellant coming back upstairs. She locked her phone so that the screen would be unlit and he would not know she was awake. The appellant re-entered the bedroom, put on his shoes and shirt, picked up his wallet and went downstairs. The complainant heard him leave the house and get into a car. An Uber receipt showed that the appellant arrived home at 4:02am. It was approximately a 35 minute trip.

Appellant's account of the intimate physical contact

The appellant's account of intimate contact with the complainant is summarised at [105] above. He said: it was kind of one of those things in the morning, it just happened and then as soon as you thought about it, it was not such a good idea. In cross-examination he said that when he woke up there was some light in the room from streetlights outside the house. He gave the following answers: Q How did your lips just come into contact with her lips? How did that happen? A We were lying together like this, and something just started. Q How? A I guess it was just like a bit of a spark and when we woke up. Q […] who kissed who? A I can't quite remember. We just started it.
The appellant said that the complainant's ex-boyfriend was J. The evidence did not reveal how recently that relationship had ended. The appellant said that J was a very close friend, whose name he had tattooed on his own leg. He gave evidence to the effect that a factor contributing to him not wishing to continue the sexual contact with the complainant was that he reflected upon his friendship with J and upon the complainant's and J's previous relationship. According to the appellant, when he got up the complainant asked him why he was leaving and he told her: I just want to wake up in my own bed. The complainant denied that that exchange took place.

Complaints on 26 December 2018

When asked why she used the word "think" in her message to MR at 3:23am, the complainant gave the following answers: A Well, that had never happened to me before so I didn't know the correct terminology to use or how to describe what just happened. Q When you sent that message did you have any doubt in your mind about the acts that Alan Murray had done to you? A No. By this time, I felt I was completely sober and I was aware of everything that just happened.
The complainant slept on and off after the appellant had departed, feeling, as she described, "violated, confused, angry". MR sent a text response at 7:06am requesting that the complainant "reply to this as soon as you can". The complainant's next message to MR was at 10:35am, as follows: Sorry I just woke up I had the worst sleep I'll come into your work soon and explain.
MR replied immediately to ask "what time". The complainant did not answer for nearly three hours, until 1:12pm, when she advised by text that she "fell asleep again". She proceeded to make arrangements to meet. The complainant met with MR near to her workplace during the afternoon and gave an account of what had occurred between herself and the appellant, including the following: [She] said that she was asleep and she woke up to [the appellant] behind her with his hands down her pants. She then continued to say that he tried to put his penis in her hands and tried to make her touch him. She then said that she […] was terrified and that she felt like she was paralysed, and like she couldn't move. And she told me she kept wanting to pretend she was still asleep as to make him get off, or like he would leave her alone. […] I am not sure of the exact order, she then said that he did try to have sex with her, but he failed because she wasn't aroused.
The complainant said that later the same day she picked MR up after work and spent part of the evening with her. The complainant then returned home. Later in the evening she started crying in her mother's presence and gave her an account of what had happened, as follows: She said that they got dropped off by [MJ] and they were both upstairs. He was going to catch an Uber from there and she fell asleep and then she's woken during the night and he had his fingers down her pants and he had his penis in her hand and then she froze so […]. She said she froze and he was trying to get inside and then when he couldn't get inside her he got up and he put his pants on and he's left.

Conversations after 26 December 2018 about the complainant's allegations

With her parents' assistance the complainant contacted the detectives at Sutherland Police Station and met with them on 26 December. She made her first statement to police on 27 December 2018. The detectives arranged for the complainant to make a pretext call to the appellant that would be recorded by means of a surveillance device installed under warrant. In furtherance of those arrangements, on 16 January 2019 the complainant attempted to speak to the appellant while he was at work but no voice contact was made.
CA, who was TP's girlfriend, gave evidence of a conversation with the complainant at a restaurant in Miranda on the evening of 29 December 2018, as follows: Q What's the first thing she told you? A She said that Alan had sexually assaulted her. […] Q What's the next thing you remember her saying to you? A All she said was that he touched her, but he didn't try to have sex with her. Q Did she say anything about how she was positioned where they were, anything like that? A She said she was lying on her stomach.
CA said that she had not made any notes of the conversation at the time and that the first occasion on which she had been asked to recount the details of the conversation was when she had spoken to the appellant's solicitor "a couple of months ago", in 2020. She gave the following answers in cross-examination: Q Would it be fair to say that the evidence you've given today is a general summary of what was said in the conversation rather than the exact words? A No, no exact words. Q Can you remember the exact words that you spoke, and [the complainant] spoken the conversation? A I don't remember what I said but I remember what [the complainant] said. Q Was there anything said about [the appellant] putting his fingers in the vagina of [the complainant? A No. Q Was there any mention of what [the complainant] did when [the appellant] did these things to her that she told you about? A No. Q [...] Do you remember what words she used to describe that sexual assault? A That's all she said, sexually assaulted. Q She used the words of sexual assault or rape or indecent assault? A Sexual assault.
On 20 January 2019 at about 10:55am the complainant spoke to the appellant on the phone. He sounded groggy and said he was tired. He gave evidence that when he took the call he had been asleep and had not "woken up fully". The complainant asked, "What the hell happened between us on Christmas Day? […] When you came back to mine." The appellant said that he did not remember anything. He said, "Well obviously something's up" and asked, "Why, what happened?". The complainant did not answer him and said she would speak to him another time.
The appellant gave evidence that at the time of this call he did remember what had occurred but he gave the following explanation for having responded to the complainant as he did: A I thought it was just, like, a really awkward touchy topic that wasn't going to get talked about on the phone. Like, it's something we'd rather do face to face in - A […] I was just trying to palm it off and talk to her about it in person, because it was a bit awkward. A […] I thought it was, like, a bit touchy, seeing how - like, after I'd done it. That's why I stopped it in the first place, because J was such a good friend of mine, I just thought it was one of those things to sweep under the carpet, like, as an accident.
JM gave evidence that at about 8:00pm on 26 January 2019 he and his girlfriend MJ picked up the complainant from her home and brought her to their house near Blaxland Oval. He said that she was "quite drunk" and that he took her aside to ask, "What's been going on?". JM said that the complainant gave the following account of what occurred on Christmas night: [S]he'd fallen asleep. She then woke up to his hands down in her pants. He then tried to put his penis inside her but that she wasn't wet, so nothing - it didn't happen. So he then tried to lubricate her himself by spitting on his fingers and putting his hand down her pants again, but it still didn't work. So I then asked why it was sexual assault and she told me that she wasn't into it at all. She didn't move. I asked her why - why didn't she try and stop him and she said that she froze like an anxiety attack. She couldn't move. She couldn't - she couldn't do anything. He then left shortly afterwards.
Later in the evening of 26 January 2019, JM was with the appellant at Blaxland Oval after watching some fireworks. According to the appellant, JM then told him that the complainant said he had sexually assaulted her. The appellant gave evidence that he was shocked and replied, "What the fuck? Why would she say that?". JM's evidence was that the appellant said "What? Why would she say that?" and that he appeared shocked and angry and that he denied the allegation emphatically. JM's girlfriend, MJ, observed this encounter but did not hear what words were spoken. She described the appellant's reaction in this answer: He was shocked. He did look shocked.
Both the appellant and JM gave evidence that when the complainant arrived at Blaxland Oval that evening the appellant wanted to approach her and try to resolve the allegation but JM restrained him. The appellant agreed with evidence given by JM that he had said something to the effect, "What if anyone else finds out?". The appellant explained what he meant by that in the following answer: [It] was just a - like, a bad thing to say, like, what if people found out and, like, I hadn't said anything. Like, people are just going to think I'm some animal or something.
JM said that the appellant told him in this conversation that he had left the complainant's house at 3:00am on Christmas Night to stay with another member of the group, a female referred to as BS. The appellant denied that he had said this. He gave evidence that he knew BS was away on holiday over Christmas and that all members of the group would have known that because they were all so close and aware of each other's movements.
At 1:36am on Wednesday 30 January 2019 the appellant sent the complainant the following message: Hi we need to have a chat about what Josh told me on the weekend. Because what he said to me was pretty messed up He said that he meant to convey by that message that "she's hiding the fact that something happened and she's making it out like it's something else". The complainant replied three days later saying that she could "chat now" but no evidence was tendered of any further conversation.

Cross examination of complainant concerning closeness of relationship

In evidence in chief the complainant said that the only one-on-one communications with the appellant that she could recall, from prior to the incident, were by Facebook Messenger on 14 December 2018, concerning driving the appellant to his work party in Western Sydney. In cross-examination the complainant agreed that her statement to police made on 27 December 2018 included the following: I don't speak to Alan on the phone or text him individually. I only ever really speak to him in the group chat. I've not been alone with Alan, one-on-one as far as I can remember. I think I have spoken to him one-on-one once.
In cross-examination the complainant agreed with the proposition that "at the outset, you had to provide the police with an impression that [the appellant] and you only had a very distant relationship". She said that she did not recall a number of one-on-one communications with the appellant during 2018. A sample of these were put to her sequentially and, despite her claim not to recall them, they were independently proved. They included audio calls, transmissions of photos to the appellant on the complainant's personal Facebook page and messages between the two of them on her personal Facebook Messenger account.
In February 2018 the complainant loaned the appellant her car to enable him to drive to Gunnedah to visit his mother. In mid-March 2018 the appellant picked up the complainant and her mother from a concert at Homebush late in the evening. Each of these events was accompanied by a plentiful exchange of friendly and familiar text messages. During June 2018 the two of them exchanged numerous friendly messages concerning Snapchat, photographs and mutual friends. In September and November 2018 there were occasions when they exchanged similar one-to-one friendly messages concerning social contact with each other and with other members of their group. The communications referred to in this paragraph were put to the complainant in cross-examination and she acknowledged them but she said she had not recalled them when making her statement to police on 27 December 2018.
When it was put to the complainant in cross-examination that on her personal account she had received 591 messages from the appellant over the three years preceding the incident and had sent 537 messages to him, she agreed that that was so. She was shown a schedule of the messages and said, "the evidence is in front of me". However, she denied that she had knowingly misled police about the extent of direct communication between the two of them.

Principles governing the appeal

The sole ground of appeal is framed on the words of s 6(1) of the Criminal Appeal Act 1912 (NSW) that the Court: shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence.
The authoritative exposition of this ground in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 has recently been re-endorsed by Gageler, Keane, Gordon, Steward and Gleeson JJ in Dansie v The Queen [2022] HCA 25. That appeal concerned a finding of guilt by a judge who conducted a trial without a jury. The principles do not differ as between the two modes of trial. The following extract from Dansie v The Queen sufficiently states the law that this Court is bound to apply (some citations omitted): [7] […] The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence. [8] That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M v The Queen. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty", that question being "one of fact which the court must decide by making its own independent assessment of the evidence". [9] The joint judgment in M v The Queen made clear that "in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses". The joint judgment equally made clear how those considerations are to impact on the court's independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated [[1994] HCA 63; (1994) 181 CLR 487 at 494-495]: It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. [10] […] [11] […]. Menzies J identified the question arising on the unreasonable verdict ground [in Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44] as being "not whether this Court [standing in the shoes of the court of criminal appeal] thinks that the only rational hypothesis open upon the evidence was that the applicant [for special leave to appeal] drowned his wife" but "rather whether this Court thinks that upon the evidence it was open to the jury to be satisfied beyond reasonable doubt that the death of the deceased was not accidental but was the work of the applicant" [(1963) 110 CLR 234 at 247]. Menzies J went on to answer the question so framed by agreeing with the court of criminal appeal below "that there was sufficient evidence upon which the jury, fulfilling their duty not to convict unless the inference of guilt was the only inference which they considered that they could rationally draw from the circumstances, could have convicted the applicant" [(1963) 110 CLR 234 at 252]. The deference to the inference of guilt inherent in the verdict returned by the jury reflected in those statements does not accord with the approach to the exercise of the appellate function set out in the joint judgment in M v The Queen. [12] The authoritative guidance to be gained from the joint judgment in M v The Queen has not diminished with time. M v The Queen was unanimously affirmed in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and again in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, where it was spelt out that the "test set down in M" required a court of criminal appeal to undertake an "independent assessment of the evidence, both as to its sufficiency and its quality" and that consideration of what might be labelled "jury" questions does not lie beyond the scope of that assessment. Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself "to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard" and in so doing to form its own judgment as to whether "the prosecution has failed to exclude an inference consistent with innocence that was reasonably open".
With respect to each count in the present case the jury were correctly directed by the learned judge that, if they found beyond reasonable doubt that the alleged act was committed by the appellant and that the complainant did not consent to it, then in order to convict they would also have to be satisfied beyond reasonable doubt that the appellant knew the complainant did not consent. They were instructed in accordance with s 61HE(3) of the Crimes Act, as in force at the date of the alleged offence, before its replacement by s 61HK with effect from 1 June 2022. I repeat the terms of the applicable sub-section, for ease of reference, together with sub-s (4): (3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if: (a) the person knows that the alleged victim does not consent to the sexual activity, or (b) the person is reckless as to whether the alleged victim consents to the sexual activity, or (c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity. (4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but (b) not including any self-induced intoxication of the person.
In accordance with s 61HE, the learned trial judge directed the jury that the element of knowledge of non-consent would be established in any of the following circumstances: 1. If the jury were satisfied beyond reasonable doubt "that he actually knew that the complainant was not consenting". 2. If the Crown had proved beyond reasonable doubt "that he was reckless as to whether the complainant consented", either because (a) "he simply failed to consider whether or not the complainant was consenting at all, and just went ahead with [his actions] even though the risk that the complainant was not consenting would have been obvious to someone with the accused's mental capacity if he had turned his mind to it" or (b) "he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not". 3. If the appellant "did have an honest belief in consent" but the Crown had proved beyond reasonable doubt "that there were no reasonable grounds for believing that the complainant consented to" the acts comprised in the relevant count. The Crown "must eliminate any reasonable possibility that the accused did honestly believe on reasonable grounds that the complainant was consenting".
Much of defence counsel's closing address to the jury was devoted to questioning the complainant's credit on the issues of how far the sexual activity progressed and whether the complainant consented to the limited contact alleged in count 1, which the appellant agreed had occurred. The address included arguments as to why the jury should have a reasonable doubt as to whether the complainant did not consent to whatever took place between her and the appellant.
With respect to the acts of the appellant that the jury might find proved, there was no direct evidence that the appellant knew the complainant did not consent, within the extended concept of knowledge provided for in s 61HE(3) and explained in the summing up. The element of knowledge of non-consent depended wholly upon inference from circumstances. Defence counsel did not offer an analysis of how the evidence bore upon that question, assuming that the jury accepted the complainant's evidence about the extent of the acts and her lack of consent. Counsel did not concede the element of knowledge of non-consent. The jury had to be satisfied of that matter beyond reasonable doubt in relation to each count.
In submissions on the appeal the appellant advanced his argument that the verdicts are, in the words of s 6(1) of the Criminal Appeal Act, "unreasonable, or cannot be supported, having regard to the evidence" primarily by reference to claimed deficiency of proof of the physical acts alleged against him. But the ground must be upheld if the evidence concerning any element of the offences was insufficient for it to have been open to the jury to find that element proved beyond reasonable doubt. I have concluded that the evidence concerning knowledge of non-consent was not sufficient in nature and quality to eliminate any reasonable doubt on that element. The jury's verdicts of guilty were "unreasonable, or cannot be supported, having regard to the evidence" in this respect.
The appellant is not precluded from succeeding on this basis by reason of the way his defence was conducted at trial. His evidence of mutual kissing immediately before and during the admitted conduct of count 1 was directed to rebutting knowledge of non-consent with respect to that matter. With respect to counts 2-4 he did not expressly deny that he knew the complainant was not consenting because he disputed that any of the conduct in those counts took place. The limits of his own evidence concerning this element did not obviate the necessity for the jury to be satisfied of it with respect to each count if they were to return verdicts of guilty. The element arose for determination from the appellant's pleas of not guilty and upon the whole of the evidence led by the Crown. It had to be left to the jury irrespective of the limits of the accused's evidence and irrespective his counsel not having dealt with the issue in closing address.
This was correctly recognised by the learned trial judge. In a succinct summing up of 29 pages, her Honour devoted 2½ pages to the element of knowledge of non-consent concerning counts 1, 3 and 4 (sexual touching) and a further 2 pages to that element with respect to count 2 (sexual intercourse by digital penetration). On counts 1,3 and 4 her Honour directed the jury in these terms as to the third way in which knowledge of non-consent might be proved (s 61HE(3)(c)): Therefore, the Crown must prove beyond reasonable doubt one of two facts before you could find the accused guilty, either: (a) the accused did not honestly believe that the complainant was consenting or, (b) even if he did have such an honest belief, there were no reasonable grounds for believing that the complainant consented to the sexual touching.
On count 2 her Honour elaborated this third pathway to finding that the element of knowledge of non-consent was proved beyond reasonable doubt, in the following terms: [You] may decide on the basis of the evidence that the accused might have believed the complainant was consenting. Whether that belief amounts to a guilty state of mind depends upon whether he honestly held it, and if so, whether the Crown has proved beyond reasonable doubt that there were no reasonable grounds for the accused to believe that [the complainant] consented. It is for the Crown to prove that the accused had a guilty mind. It must eliminate any reasonable possibility that the accused did honestly believe on reasonable grounds that [the complainant] was consenting. Unless you find beyond reasonable doubt that the Crown has eliminated any such reasonable possibility, then you will have to find this third element of the offence is not made out and return a verdict of "not guilty" to this charge.
As her Honour's summing up correctly recognises, proof of knowledge of non-consent, including by the third pathway of proving absence of honest belief and/or absence of reasonable grounds for belief, was not a matter of defence that had to be affirmatively introduced by the appellant at trial, either by adducing affirmative evidence or by submitting argument. No such conduct in defence, to raise the issue, was a necessary precondition to the jury being directed upon it. The appellant makes no complaint about the summing up. Consideration of his unreasonable verdict ground by reference to the capacity of the evidence to prove knowledge of non-consent, including by the third pathway, does not involve introducing on the appeal a matter that was not in issue at the trial by reason of any forensic choice of the appellant's counsel. As an element of each offence that had not been conceded, knowledge of non-consent was in issue.
In Ratten v The Queen, Doggett v The Queen, Nudd v The Queen and many other authorities there appear firm statements of principle concerning an accused person's choice of the grounds upon which he contests a charge at trial, the extent to which he is bound by forensic decisions made on his behalf by counsel and the limits that such choices and decisions place upon what may be argued on appeal. Ratten v The Queen concerned choices with respect to the calling of evidence. Doggett v The Queen involved a decision not to seek a direction in accordance with Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60. Nudd v The Queen concerned an appellant who claimed that his trial counsel had incompetently addressed the jury upon a misunderstanding of the applicable law and had failed to take proper instructions from him or to call him. The principles expressed and illustrated in those cases do not in my view preclude this Court from assessing, in accordance with M v The Queen, whether evidence tendered in support of one element of an offence - that element not having been admitted - was sufficient for it to have been open to the jury to find the element proved.
In considering a ground of appeal pursuant to which it is said that it was not open to a jury to find a circumstantial Crown case proved beyond reasonable doubt, the Court cannot propound a reasonable possibility consistent with innocence that does not arise upon the evidence in the trial and that is inconsistent with an affirmative explanation of circumstances given by the accused in evidence: The Queen v Baden-Clay. The reasonable possibility that I consider was open and to which the jury should have given effect is a composite of the possibilities that the applicant did not know "that the alleged victim [did] not consent to the sexual activity" (s 61HE(3)(a)), that he was not "reckless as to whether the alleged victim [consented] to the sexual activity" (par (b)) and that he may have honestly believed the complainant consented and may have had "reasonable grounds for believing that the alleged victim [consented] to the sexual activity" (par (c)). This composite of possibilities arose from the whole of the evidence and was not inconsistent with the appellant's case. If the jury disbelieved him in his denial of the conduct in counts 2-4, they were obliged to put that evidence to one side in accordance with De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 and consider such other evidence, relied upon by the Crown, as they accepted. None of the appellant's evidence stood in the way of the jury recognising the reasonable possibility that he did not know the complainant was not consenting. There is no impediment to that possibility being acknowledged on appeal as one that the jury could not exclude.

Consideration of the evidence concerning knowledge of non-consent

It was beyond dispute that these two young people were school friends who had grown up together from early teens and who had maintained close, frequent, comfortable social contact with each other after leaving school. Neither was in a romantic relationship with a member of the opposite sex at the relevant time. Both had broken off such relationships before the evening in question. Each of them knew that the other was presently unattached. On this night the appellant was invited by the complainant to come to her bedroom, in the middle of the night, to sit with her on her bed and play with a pet. The purpose that had brought him to her home, that of charging his phone and waiting for an Uber, did not require that the complainant should take him to her bedroom. The appellant had never before been invited by the complainant to spend time in her company in that intimate setting. The intimacy was accentuated by the complainant changing into night attire in the appellant's presence, then lying down beside him on her bed, without a word of request that he should leave, and then going to sleep next to him with the light out.
For the purpose of considering the Crown's circumstantial case on knowledge of non-consent, I assume that the complainant did not in fact intend to take part in sexual activity with the appellant when she invited him to her bedroom and lay down with him. I make no criticism of her conduct and attribute no fault. Notwithstanding the innocence, inadvertence or naivety with which this may have occurred, in my assessment on the whole of the evidence there was at least a reasonable possibility that, after both of them had fallen asleep in that context and atmosphere, when the appellant awoke approximately two hours later he may have thought the complainant would be receptive to intimate contact. The whole prelude, as recounted above, constituted reasonable grounds for him to believe honestly that that would be so. The reasonable possibility that he had such an honest belief on reasonable grounds to supported could not, in my view, be excluded beyond reasonable doubt on the evidence in the case. The same circumstances, by which the appellant came to be waking up beside complainant on her bed, was similarly an insurmountable impediment to the jury drawing an inference beyond reasonable doubt that the appellant must have acted with advertent or inadvertent recklessness (s 61HE(3)(b)) in commencing and then continuing sexual contact.
As described by the complainant, the appellant's initial contact by his hand upon her bottom was consistent with him sounding out whether she felt a sexual interest. Given the undisputed circumstances in which the complainant had lain on her bed and gone to sleep with him beside her, the jury could not exclude the reasonable possibility that the appellant honestly believed he had her implicit consent at least to touch her in a way that would test her willingness to go further. On the complainant's own evidence she did not then tell the appellant to stop, or push his hand away, or sit up. It was not open to the jury to infer to the exclusion of any other reasonable possibility that her lack of reaction must have conveyed to the appellant that she did not consent, either to his initial touching or to anything more.
As between two young people so completely familiar with each other, it was not open to the jury to find that the only reasonable conclusion from the appellant's continued sexual conduct while the complainant lay still and silent was that he must have interpreted her passivity as either rejection or unwilling submission. What the complainant described to the jury was in the nature of moderate foreplay by the appellant. They knew each other very well. There was no evidence that the appellant had on any prior occasion shown physical or sexual aggression towards the complainant. The evidence overall showed that their friendship was respectful. An illustration was the appellant turning away when the complainant changed into her nightclothes. So far as he knew, on uncontested evidence, the complainant was entirely comfortable and confident with him.
The jury could not exclude that the appellant would have thought that, had the complainant wished him to stop, she knew him well enough to realise that all she had to do was to say so, or to gesture. Indeed, she gave evidence that she did know that he would stop on her word. There was no basis in the evidence upon which it could be concluded that, when the complainant lay still and silent under the appellant's progressive sexual contact, her lack of response must have signified to him an attitude of non-consent that she was unable to express because of fear or reserve.
None of this is to suggest that knowledge in an accused that a complainant is not consenting can only be established by evidence of physical resistance or oral protest. This case turns on its own unusual facts. As the complainant acknowledged, she knew the appellant would desist at her word. From their long familiarity with each other he would have expected that she knew she could stop him by the slightest signal of rejection. Her lying still and pretending to be asleep could only convey non-consent if it went on so long that it became apparent to the applicant that she was feigning and was actually awake but not interested. The jury had no basis for inferring beyond reasonable doubt that that realisation must have dawned at any time before the applicant ceased his physical advances.
On the assumption that the jury accepted the complainant's evidence that she did not, in fact, consent to any of the accused's acts, her lying completely still was a surprising way of dealing with the situation. The jury could not reasonably exclude the possibility that the appellant found her lack of reaction consistent with acceptance. They could not reasonably find it inescapably indicative to the appellant of lack of consent. There is no standard of responsiveness of a sexual partner, short of which it must be apparent to the active party that the other is not consenting. The appellant had no prior sexual experience with the complainant so the jury had no basis for inferring beyond reasonable doubt that he must have immediately interpreted her lack of reaction as rejection.
It was open to the jury to infer that the complainant's lack of reaction when the appellant engaged in sexual touching and digital penetration may have been attributable, in some measure, to the anxiety that she said she had suffered for 4-5 years. However, as earlier noted, there was no evidence that the appellant was aware of her underlying anxiety. The jury had no evidentiary basis for inferring that the appellant must have recognised in her unresponsiveness a lack of consent coupled with an anxious inability to communicate.
Further, the complainant did not suggest to the jury that when she lay still under the appellant's attentions, she did so in a rigid manner that might have suggested stress or hostility. On the contrary, she described having kept still in a controlled fashion, regulating her breathing and moving her hand slowly and discreetly to a position where it would make her head more comfortable while he continued. Her evidence was that she refrained from moving or speaking only because it would be "awkward" and "embarrassing" to tell the appellant to stop. The complainant made inconsistent prior statements about the manner in which she lay still, as follows: to MR - "that she was terrified and that she felt like she was paralysed and like she couldn't move"; to her mother - "she froze"; to JM - "that she froze like an anxiety attack. She couldn't move. She couldn't - she couldn't do anything." Those assertions were contradicted and apparently disavowed in the complainant's oral evidence. They appeared to retain significance only with respect to her credit.
I hold a doubt, which I consider reasonable, concerning whether the appellant knew of the complainant's non-consent, according to any of the extended concepts by which such knowledge may be proved. My doubt does not arise from an assessment of the credit of the witnesses or from any aspect of the evidence in relation to which the jury would have had an advantage from being present throughout the trial. It arises from inherent limitations of the inferences that may be drawn from the complainant's evidence at its highest and from uncontroversial surrounding circumstances. I consider that the doubt I hold about this element is one that a reasonable jury ought to have experienced. I conclude that there is a significant possibility that the trial of the appellant resulted in the conviction of an innocent person.
To reiterate, in the language of the High Court's judgments, assuming that the jury were satisfied to the requisite standard that the appellant committed all of the alleged acts, in the sequence and in the circumstances that the complainant described, and that she did not consent, the evidence was in my view not "sufficient in nature and quality to eliminate any reasonable doubt" (Dansie v The Queen at [7]) as to whether the appellant knew that she did not consent, in any of the senses provided for in s 61HE(3). Having regard to what I see as the insufficiency of the Crown's necessarily circumstantial case on this element, "making [my own] independent assessment of the evidence" (M v The Queen (1994) 181 CLR 487 at 492) I consider "that upon the whole of the evidence it was [not] open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (M v The Queen at 493). The jury, assessing the circumstantial evidence reasonably, ought to have recognised a reasonable possibility that the appellant did not have knowledge of non-consent by any of the three alternative pathways in s 61HE(3).
I would have the Court make the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the appellant's conviction in respect of all counts and enter verdicts of acquittal. 4. Quash the sentence imposed on 12 February 2021.

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Unreasonable verdict

The approach to be taken by this Court to a ground asserting the unreasonableness of a verdict of guilty is well established: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 ("M"); MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 ("Baden-Clay"); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 ("Pell").
The principles, as originally stated by Mason CJ, Deane, Dawson and Toohey JJ in M at p 493, and repeatedly reaffirmed in the decisions mentioned above, are: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
Their Honours went on to say (at p 494): "It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
The court proceeds on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable, and examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt: Pell at [39] per the Court.
Application of the principles has most recently been considered (in relation to a guilty verdict following trial by judge alone) in Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 ("Dansie") in which a unanimous High Court (at [7]) stated the function of a court of criminal appeal when determining an appeal on the unreasonable verdict ground as: "…to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of [the offence charged]."
Three things are clear: the task of the appellate court is (i) to consider the nature and quality of the evidence, while (ii) paying due regard to the advantage enjoyed by the jury in observing the witnesses at first hand; and (iii) recognising the constitutional role of the jury in the determination of criminal guilt.
It will therefore be necessary, in due course, to survey, in some detail, the evidence given in the Crown case, and the applicant's response. For the moment a short synopsis will suffice.

The verdicts

The jury retired to consider its verdict at 10.10 am on Friday, 20 November 2020. At some point that appears to have been about 2 pm on Monday, 23 November 2020, the jury sent the trial judge a note advising that they had reached a unanimous verdict on three counts, but were divided on one. The trial judge took verdicts (which were guilty) on counts 1, 3 and 4, and, with respect to count 2, directed the jury in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 71. At 3.37 pm having followed the procedure laid down in s 55F of the Jury Act 1977 (NSW), the trial judge took a verdict (of guilty) on count 2. It is not entirely clear whether that verdict was unanimous or by majority. That need not be further explored.

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