Nguyen v R

Court of Criminal Appeal (NSW)|2021-02-05|Before: Bathurst CJ, Beech-Jones J, Wilson J, Jones J

Judgment

BATHURST CJ: I agree with the orders proposed by Wilson J and with her Honour's reasons.
BEECH-JONES J: I agree with Wilson J.
WILSON J: On 2 July 2019 the applicant, Simon Nguyen, was arraigned upon indictment before a jury panel in the District Court, pleading not guilty to two offences: 1. Count 1: an offence contrary to s 61I of the Crimes Act 1900 (NSW) ("the Act") of sexual intercourse without consent, knowing that the complainant had not consented, relying on an incident of digital intercourse; and 2. Count 2: an offence contrary to s 61L of the Act of indecent assault of the same complainant, being the manipulation of the complainant's hand on the applicant's penis.
On 8 July 2019, a jury of twelve found the applicant guilty of count 1, and not guilty of count 2.
On 22 November 2019, following conviction, Williams ADCJ imposed a community corrections order ("CCO") upon the applicant with respect to count 1, for a period of three years. The order commenced on 22 November 2019, and will expire on 21 November 2022. A prohibition on associating with the complainant for a period of two years was a condition of the CCO.
By Notice of Application for Leave to Appeal dated 27 July 2020, the applicant seeks leave to appeal against his conviction on the basis that the verdict of guilty on count 1 is "unreasonable and unsafe by reason of inconsistency with the verdict of not guilty on count 2". Unsurprisingly, there is no application for leave to appeal against the non-custodial sentence imposed.

Factual Background

The applicant and the complainant met as students at university in 2016. They commenced a relationship in April of that year, which continued until November 2016. The applicant gave evidence at trial that the relationship ended because he and the complainant "fought a lot", although they maintained a sexual relationship until June 2017.
During early June 2017, the complainant stayed at the applicant's house for a few days and the pair had engaged in consensual sexual intercourse. The Crown's case at trial was that following the consensual sexual intercourse, the applicant and complainant argued about contraception and, as a consequence, the complainant told the applicant that their sexual relationship must end. The applicant agreed. They maintained a friendship.
On 23 June 2017, the applicant and the complainant separately attended a party at the house of a mutual friend, Matthew Chan.
The complainant arrived at Mr Chan's party at around 9pm. She consumed a large quantity of alcohol and, although she had never done so before, took "a puff" of cannabis. She began to feel unwell and friends helped her to a bathroom, where she remained for at least 45 minutes, vomiting repeatedly. The applicant assisted her during this time by putting his fingers down her throat to enable her to vomit.
After that, a friend of the complainant, Thomas Walker, and another male put her to bed in the master bedroom.
The Crown's case at trial was that when the complainant was in bed, intoxicated and unwell, the applicant entered the bedroom and got into bed with her. Without speaking, he put his hand in her underwear and his finger in her vagina (count 1). He then exposed his penis and placed the complainant's hand on his penis (count 2). She did not consent to either act.
The applicant acknowledged at trial that he had gotten into bed with the complainant but maintained that, although they had cuddled and kissed, no touching of a sexual nature occurred, and the charged acts did not take place.
Because of the nature of the proposed ground of appeal, it is necessary to consider the factual circumstances surrounding the relevant events in some detail.

The complainant's evidence

The complainant gave evidence that soon after arriving at the party on 23 June 2017, she had a friendly conversation with the applicant. As they parted, the applicant pinched her on her bottom under her dress; the complainant told him not to.
The complainant was drinking alcohol when at the party. At some stage, she also smoked "a puff" of cannabis, in an outside courtyard. Although she had no memory of returning to the house from the courtyard, the complainant did remember being in the kitchen and feeling extremely ill. She remembered being in the bathroom while the applicant assisted her to vomit, and gave evidence that she could not really walk or stand up at that time. She did not remember how she got from the bathroom to the bedroom.
After the complainant was put to bed by friends, she was roused by the sound of the bedroom door opening and the applicant entering the room and jumping into the bed. The complainant recalled that the applicant said nothing, but lifted her dress and put his hands inside her underwear. He touched her vagina and then inserted one finger into it. In her evidence at trial, the complainant said that: "it felt like just one finger kind of just in and out, almost like he was checking to see if like I was aroused or something."
The complainant deposed that she was confused as to why the applicant was there, and did not consent to the act of digital intercourse. She said that she tried to ask the applicant what he was doing, but was not sure if what she said was intelligible, as she was "very out of it". Her body was numb and her speech may have been slurred.
The applicant next unfastened his pants and put the complainant's hand onto his exposed erect penis. The complainant was unable to move because of the numbness of her body. The applicant moved the complainant's hand on his penis, as if indicating that she should continue the motion.
The complainant deposed that the applicant did not speak to her at any stage, and she did not agree to any sexual activity between them. The Crown's case was that, due to her level of intoxication, the complainant was unable to freely and voluntarily consent to sexual contact.
Thomas Walker, who had earlier assisted the complainant into bed, opened the bedroom door and asked the applicant what he was doing. In an attempt to induce him to go away the applicant told him, "It's OK". Mr Walker did not leave, but waited by the door until the applicant got out of the bed. When the applicant left the room, the complainant closed her eyes and passed out, or fell into a heavy sleep.
When the complainant next awoke, her friend Angela Tran was in the bed with her. The complainant was cold and shaking. She was also frightened because she had never previously been so intoxicated that she could not move her body. The complainant asked Ms Tran to fetch the applicant to keep her warm. She said that, although she remembered what had occurred earlier, she had not been able to process and interpret it and the applicant was the person whom she most trusted at the party.
The complainant said that, whilst she knew that the applicant had done something wrong, she was not sure what to think of it, or if it would be defined as sexual assault.
Acting on the complainant's request, Ms Tran sent the applicant a message around 1:33am, on 24 June, that said, "[the complainant] needs ya to cuddle mate". The applicant returned to the bedroom, got back into bed and cuddled the complainant to keep her warm. The complainant went back to sleep. Ms Tran remained in the bed.
When the complainant woke the next morning, the applicant had left the house, but Ms Tran, Mr Chan and another party-goer, Abishak Raju, were in the bed with her. When the complainant got out of bed she realised she was wearing her shoes, and that her dress was still pulled up above her underwear.

Evidence of Others

Others who attended the party on that night gave evidence in the Crown case. Olivia Morales saw the complainant in the bathroom at Mr Chan's house, "extremely intoxicated. She was hugging the toilet bowl" and vomiting, or trying to vomit. The complainant was unresponsive to Ms Morales' questions. Ms Morales saw the applicant enter the bathroom and put his fingers down the complainant's throat. When Ms Morales expressed some concern at this, he said he had done it "plenty of times" before.
Thomas Walker gave evidence about helping the complainant in the bathroom where she was vomiting and then putting her to bed in the master bedroom. He observed the complainant was not able to talk at that stage, and gradually became less responsive.
Mr Walker said that the applicant entered the bedroom and got into the bed with the complainant. He recalled observing the applicant up close to the complainant and cuddling her from behind; the complainant was not responding physically or verbally. Mr Walker considered the complainant to be "either [a]sleep or so intoxicated she couldn't communicate". Mr Walker asked the applicant "What are you doing?", and the applicant replied, "Nothing, we're just cuddling". He was uncertain as to whether the complainant wanted the applicant to be with her and tried to get some confirmation of that from her, but "she wasn't capable of giving an answer". Mr Walker waited a short time by the door to the bedroom before re-joining the party. He noticed that the applicant re-joined the party some time later.
Matthew Chan gave evidence that he saw the complainant intoxicated at the party and saw her in his parents' bed on two occasions, the second time with a girl he thought was Ms Tran.
Following the party, Mr Chan received a message from the complainant saying that the applicant had groped her in the bed. Mr Chan asked the applicant about this, and the applicant said it was not true. The applicant told Mr Chan he had gone into the room in the first place because he received a text message saying that the complainant wanted to see him in the bedroom.
Angela Tran deposed that she woke the complainant at about midnight to tell her she would be sharing the bed. Ms Tran said the complainant's speech was slurred and she was clearly affected by alcohol.
About half an hour later, the complainant asked Ms Tran to fetch the applicant because she was cold and needed a cuddle. Ms Tran sent the applicant a text message. A few minutes later the applicant entered the room. He cuddled the complainant and Ms Tran went to sleep. Ms Tran was later aware of the applicant's friend coming in to offer the applicant a lift home and the two of them leaving.

Messages exchanged following the incident

The complainant remained at Mr Chan's house for the night, and had breakfast or lunch with him and others from the party on 24 June 2017. She returned to her own home later that day. She had bruises to her body that she could not explain, and was concerned about what had happened at the party. She exchanged a series of messages via Facebook with the applicant on that subject, inquiring about what he had done to her, and these messages formed a significant part of the Crown's case at trial.
The exchange of messages between the complainant and the applicant the day after the party via the Facebook platform included the following: "Complainant: … So did we do anything? We didnt right Applicant: Nup Complainant: I just remember someone touching me I just want to know that's all Applicant: Yeah we like felt each other up a lil But it was mostly cuddles Complainant: Did i feel you up? Because i couldnt even walk to get to bed… Applicant: Barely Mostly just cuddles Complainant: Did you put your hand in my underwear when you put me to bed? Applicant: No My hands were there wen i got into bed with u though Complainant: Yeah that's what i meant Applicant: Yeah i was touching ur leg while w ecuddled [sic] Complainant: Can we talk for a bit? Applicant: Im getting ready for work Everything alright? Look nothing happened major I knew u were drunk U even said do whatever u want to me And i was like Naaaa I dont want u to be worried about anything And also everyone was lookibg after u [sic] U just i reckon need to stop drinking so much"
A little later in the exchange the following was said: "Complainant: Did you really not try anything with me tho? You didnt pull your dick out when we were in bed? Applicant: U pulled it out I didnt stop u One thing for sure we didnt have sex Complainant: I pulled it?? I dont remember it that way Applicant: U didnt pull it But u had like ur hand on and then in ma pabts Complainant: So i did that and you didnt put yours in mine That's what your saying Applicant: I put mine in urs Probably wat got u to put urs in mine I mean i was gone as well Thats why i know what i did was wrong Im just glad i stopped myself from going further […] Complainant: Ok i was just confused and thought i had imagined stuff"
In her evidence, the complainant deposed that, although she could remember what had occurred with the applicant, she wanted to "get his side". She was reluctant to accuse him of doing "something horrible" and wanted to "put things together" and get "the full picture" before taking any formal action.
The complainant also exchanged a series of messages with Mr Walker, on the day following the party, intending to discover if he had seen what had occurred in the bed. These messages became Ex. E at trial. She asked Mr Walker, "Did i do anything?" and, in relation to the applicant, "Is there anything i should know about?".
The complainant also told Mr Walker, "I kinda remember something but i wasnt sure it happened. Were you the one who came in and asked what he was doing?". The complainant gave evidence that she was sure when she sent these messages that the applicant had put his finger in her vagina and her hand on his penis, but she was not sure whether the applicant knew that what he was doing was wrong. She was concerned to ensure what she remembered as having occurred was accurate.
Following these early exchanges, and for some months, the complainant and applicant had no further communication.
The complainant did not wish to have any contact with the applicant and, in an attempt to ensure that there was no incidental contact with him at university, she reported the June 2017 incident to university staff. This prompted a series of further communications between the complainant and the applicant.

Conversations between the complainant and applicant

On 18 October 2017, the complainant contacted the applicant and they exchanged a number of text messages, arranging to talk by telephone. The applicant and the complainant spoke in a telephone call on 18 October 2017. During the conversation, the applicant referred to the text message from Ms Chan telling him that the complainant needed a "cuddle", stating that in response he went into the bedroom, "under the guise of intimacy".
On 6 November 2017, the applicant contacted the complainant and they exchanged a series of text messages (Ex. C at trial) that included the following: "Applicant: […] basically i just wanted to say sorry.im sorry that u did all u did for me and i screwed up. Ive been through counselling and uve had time to think everything over. So im so sorry […] […] Complainant: […] What I would like is for you to own up to what you did, the hurt you caused and the fact that I wont ever be able to forget what you did to me. You went through counselling? You were in the wrong that night […] you took advantage of me in a situation where i needed someone i could trust. […] All i wish for you is that if you cant admit it to me, that you admit it to yourself that you crossed the line that night and treated my body as something you could take rather than ask for. […] Applicant: […] I thought i already recognised the mistake of that night in the phone call… But yeah u wont have to ever hear from. Me again. I dont want to cause u any further grief or trouble Complainant: No, you referred to it as "this alleged indecent assault"and told me it happened "under the guise of intimacy" and that you felt i was trapping you that night so you stopped which thomas can confirm as being untrue since he was why you stopped, you had no choice. Applicant: Right. I'm sorry for what happened that night. It was never my intention. I made a mistake. I will definitely take it on board and change because I do deeply regret the events of that night. I dont know how to convey it but i do wish it had never happened."
Following these exchanges, later, in December 2017 the complainant reported the matter to police. She provided copies of the electronic messages that she had exchanged with the applicant, and these became Ex. A at trial. She also provided copies of the later messages between she and the applicant, from October and November 2017 (Exs. B and C), and of messages with Mr Walker from the day following the party.
On 2 March 2018, about three months after the complainant had contacted the police, the complainant made a telephone call to the applicant that was lawfully recorded by police. The recording became Ex D at trial. Without seeking to reproduce the whole, the following extracts of the discussion are of relevance: "Complainant: […] I just kind of want to hear from your end, like --- Applicant: OK. Complainant: --- what happened at Matt's party. […] Applicant: Like I said, eh, what happened at Matt's party, um, mista, mistake on both parts. Um, I definitely misunderstood. Complainant: What mistake on both parts […] 'cause I got drunk? Applicant: Yeah […] at no point in anything that happened was there a malicious intent. Oh, one thing that happened, I was coming from the guise you know, what had, had just happened back when you were staying at my place, I thought it was in that direction. Clearly it was a --- Complainant: … Applicant: --- miscommunication that could have been sorted out way better on both parts incl, especially mine, I, I realise that […] Complainant: […] But the first time, when you came in, that's when the things happened, when you got into bed with me 'cause I remember that. Yo, you got into the bed. Applicant: Uh-huh. Complainant: Yeah. I just --- Applicant: I don, I definitely don't think, I, I would not have gotten into the bed if I wasn't, if you ….. that I wasn't, like, I didn't, eh, I was told not to do. I got in there because the way, it looked to me, it was appropriate, mmm, coming from the, what had happened back at my house, when you were staying over that's, that's where I was coming from with getting in bed. Comfortability and being able to get in bed, was because I was, like, Oh, OK, this is, this isn't something out of the ordinary, this is something that, you know, I, I, the last time I was with her, we were intimate so this is just natural progression. That's why. Complainant: But we've never been intimate at someone else's house. Applicant: that thing at my house still happened so I was slightly confused. Complainant: Pardon? Applicant: I, I was going off the last time we had interacted and that was it […] Complainant: […] why would you put, like, your hands in my underwear? Like, you lifted up my dress and did that. Like, does that turn you on? Oh --- Applicant: No, no, definitely not. See, that's the thing, that's why I'm trying to, like, turn it to you, like, I'm so, like that's wh, that's why I keep saying the whole misunderstanding, miscommunication --- Complainant: Are you sorry? Applicant: --- because the, it, it, I definitely am so regretful it happened. So regretful --- Complainant: No, that's different. Are you sorry? Applicant: I'm so sorry. It shouldn't have happened. It, it was wrong. […] Applicant: --- the action was a mistake. You know, I read, I read, I definitely read the situation wrong. Complainant: No, you, you don't do that to someone who's --- Applicant: Yeah, no, you don't. Complainant: --- drunk and who didn't --- Applicant: You absolutely don't. And I de, I definitely --- Complainant: --- ask for it. Applicant: --- read the situation, yeah I definitely read the situation wrong. Complainant: I never said to you to get into the bed or you to, like, […] take off my clothes. Like, […] not clothes but, like, pull down my underwear. Applicant: […] yeah. Complainant: … you also put my hand in your pants. Last time we spoke, you said that I put it in. That, and that I did it. Applicant: I'm, I'm, I, I, I am going to stand by the first answer. I, I, I don't --- Complainant: I couldn't walk --- Applicant: --- remember, couldn't --- Complainant: --- Simon. Applicant: I, I, I, m, I, like I said, um, I c, like, you've got your side, that's my side. I, I'm not gunna be, like, OK, at no point in this am I gunna go, Oh, no that's right. No, I put your hand, no. … Like, I'm not, not --- Complainant: I, I was just giving you the opportunity if that was the case. That's all. […] Applicant: --- I, I definitely admit it shouldn't have happened. It's something that definitely should not have happened. Sorry it happened and, ah, it, it, I've spent a lot of time on my own and thinking [….] it's as simple as admitting that what happened was wrong. It shouldn't have happened and I'm sorry, but it happened. And you know what, I'm, I will, I'll always hold myself accountable for that because you know I'm better than that. I know I'm better than that. Complainant: Yeah that's why I trusted you that night when I was sick ---"
The discussion continued: "Complainant: […] There's another thing, with Matt's party --- Applicant: Uh-huh. Complainant: --- like, I don't know, like, … were, were you turned on or something? That's, that's what I don't get. Because when, ah, you put your hand down my underwear, like, it, it, it was like, this may sound weird but, when we would have sex --- Applicant: Uh-huh. Complainant: --- you know how, like, you would sometimes touch to see if I was, like, like wet, like, turned on or something? Applicant: Uh-huh, Uh-huh --- Complainant: It was like you were doing that. Applicant: ….. definitely --- Complainant: Like --- Applicant: --- was ….. sorry, sorry. I don't think that --- Complainant: ….. Applicant: --- I wasn't thinking that --- Complainant: ... your hand --- Applicant: …. About it. Complainant: --- why put your hand down my underwear? Applicant: I thought I was moving towards something affectionate and clearly, I was wrong. Complainant: You thought we were gunna have sex? Applicant: No, we definitely, I d, I d, I don't think I thought we were gunna sex, no. Complainant: Then what did you think? Applicant: I, um, my, my, my dick was too broken for sex that time anyways. Um, I --- Complainant: OK. Applicant: --- I, thought, ah, I, I, I honestly, that's, that's, that's why I am sorry that it happened because I can't, I don't know what I was thinking. That's why I'm so regretful that, like, because, the thing is, if I had a malicious intent, be like, Oh, I want to get something over her, I want to make her feel terrible, then f, I'd be cheering right now 'cause she, you did feel terrible but I didn't want you to feel terrible, I, I never want to hurt you. And so --- Complainant: It just --- Applicant: --- the fact that it happened --- Complainant: Oh --- Applicant: --- yeah, I can't attest, because I definitely wasn't doing, 'cause ….. lets fuck up her shit, no, that wasn't why. I think --- Complainant: Because you realised --- Applicant: --- in my mind, I thought what I was doing was, I suppose, permissible. And I'm --- Complainant: ... OK. Applicant: --- and I ri, and I'm definitely wrong. No, eh, and I'm definitely wrong. I'm not saying that it was --- Complainant: ….. Applicant: --- just --- Complainant: ….. do you know what you did --- Applicant: --- at the time. Complainant: --- that's, that's --- Applicant: Like me --- Complainant: --- unequal? Applicant: --- no, like I s, no, no, yeah, definitely, see, this is what I'm trying to say like, […] I know what I did was wrong. All right? And I'm not excusing it or at the time I thought what I was doing was allowed. I was doing --- Complainant: It was --- Applicant: --- our typi, you know, we had --- Complainant: --- sexual assault. Applicant: --- a previous engagement but, but I stand by the fact it, it wasn't the correct thing to do. […] Complainant: Sorry? Applicant: I, I, I am, like, I […] I agree with you. Like, that's, and that's why I regret it s, 'cause if , if, if I, if I feel like you, I was right in doing what I did, I don't think I would regret it. The reason I regret it is because I know what I did wasn't right."

The Arrest of the Applicant

Detective Senior Constable Rebecca Dummett told the jury that she contacted the applicant and his solicitor and arranged to meet the applicant for the purpose of charging him with the assault of the complainant. He exercised his right to silence and was not interviewed.

The Applicant's Case

The applicant gave evidence at trial and relied upon his good character.
The applicant deposed that after he had assisted the complainant in the bathroom she had wanted to lie down, but he did not see her go to the bedroom. He later went with his friend Ali Azruk to the bedroom to check on her. He saw the complainant lying on the bed with another girl sleeping beside her. The applicant lifted the blanket, asked the complainant if she was okay, and got into bed. They cuddled. She responded that she was not feeling very well. They kissed for a little while, with the complainant reciprocating. She then turned so that her back was against his chest and stomach. He held her for a few minutes and she fell asleep. Mr Azruk signalled to the applicant that he wanted to join the party and was about to leave. The applicant got out of bed as Mr Walker came to the door and asked, "What are you doing?" The applicant responded, "Nothing, I am just cuddling her". The applicant and Mr Azruk left the bedroom.
The applicant later received a text message from an unknown number, which he came to understand was from Ms Tran. Responding to the text message, the applicant returned to the bedroom, got into bed and cuddled the complainant, who was tired but responsive. She asked if he was staying the night, and then told him, "Do whatever you want to me, I don't care anymore". The applicant got out of bed and left. He denied performing any sexual act on the complainant on either occasion he was in the bed.
During cross-examination the applicant denied finding the complainant physically attractive in June 2017, and he denied feeling a level of sexual arousal on either occasion when he got into bed with her. He denied touching her vagina or placing her hand on his penis. He denied pinching the complainant on the bottom at the party.
With respect to the messages and conversations after the party, the applicant conceded he had frequently apologised to the complainant, but said that he was apologising for the failure of his and the complainant's relationship, and for the fact that he had gotten into bed and been intimate despite the relationship having ended. He agreed that he spoke words of apology for having sexually assaulted the complainant, but said he did that to put the incident behind them as he thought that was what the complainant wanted.
Regarding the (recorded) telephone conversation with the complainant, he told the jury that he apologised to the complainant because he "didn't mind apologising" for anything if it meant that they could "bury the hatchet" and reconcile their friendship.
He explained his reference during the conversation to having "felt each other up a little", by deposing that he did not understand "felt up" to be a sexual thing. He said that when he said, "my hands were there when I got into bed with you", he did not mean his hands were in the complainant's underwear. He said the complainant had not pulled his penis out, and when he said "u had like ur hand on and then in ma pabts" [sic] he meant the complainant's hands were on his pants and then in his pants. When he said, "I put mine in urs; Probably wat got u to put urs in mine," he did not mean he put his hands in the complainant's underpants, or that that was why she put her hands on his penis. When he said, "That's why I know what I did was wrong," he was not referring to putting his hand in the complainant's underpants. When he said he was "sorry for what happened that night", he said that was not a reference to the offences.
With respect to the recorded telephone call, the applicant's evidence was that, when he said, "In my mind I thought what I was doing was, I suppose, permissible", he was not referring to the alleged offences. When he said, "I thought I was moving towards something affectionate" he denied that he was demonstrating that he had a sexual interest in the complainant, and maintained that he had not implied that he put his hand into the complainant's underwear. The mistake he said he was never going to able to forgive himself for was getting into bed with his ex-girlfriend. Admitting "what happened" was wrong was not, he said, a reference to sexual assault.
The applicant's friend, Ali Sina Azruk, was called to give evidence in his case. He told the jury that he went to the party with the applicant. During the course of the evening he saw the complainant vomiting in the toilet, and the applicant putting his fingers in her throat to force her to vomit. The next time Mr Azruk saw the complainant was when he went with the applicant into the bedroom where the complainant was sleeping next to another girl. The complainant was awake. She and the applicant spoke and the applicant tucked himself into bed next to her. Mr Azruk glimpsed the applicant and the complainant "making out" for a bit in a "spoon" position. Mr Azruk told the applicant he was going to leave soon. Another male walked in and asked the applicant what he was doing. The applicant said "we are just cuddling", and then left the room. After that, the applicant showed him a text saying "[the complainant] wants you to come cuddle her", and the applicant left Mr Azruk in the kitchen. When Mr Azruk next saw him, the applicant was leaving the bedroom.

The Proposed Conviction Appeal

The sole ground of appeal proposed by the applicant is that "the verdict of guilty on count 1 is unreasonable and unsafe by reason of inconsistency with the verdict on count 2".
Although as articulated the proposed ground uses the language of a verdict which is said to be "unreasonable and unsafe", the appeal as argued focused solely on the asserted inconsistency of the verdicts returned by the jury to counts 1 and 2. The applicant submitted that the verdicts were "inconsistent to the extent that they cannot be reconciled by logic or reasonableness", and there could be no rational explanation for the differing verdicts.
The applicant argued that there were only three possible explanations for the verdicts returned by the jury, and that none of those explanations permitted the verdicts to be sensibly reconciled. The suggested explanations, by reference to the indecent assault alleged and reflected by count 2, were: 1. The jury preferred the evidence of the applicant that the act did not occur as alleged; 2. The jury believed the complainant, but were of the view that she was consenting to the act (or that the applicant thought that she was, in fact, consenting); or 3. The jury did not believe the complainant in relation to this count.
The applicant submitted that, since none of these possible explanations allowed the proper reconciliation of the verdicts, necessarily there was some compromise or misunderstanding by the jury that requires the intervention of this Court to correct an injustice.
The Crown submitted that there are rational reasons beyond the three suggested which can be readily discerned and that explain the differing verdicts returned by the jury with respect to the two alleged events. The Crown points to the greater clarity of the admissions to digital penetration contained in the exchanges between the applicant and complainant following the party as providing a rational basis to find the applicant guilty of count 1, but not guilty of count 2, since there was no equally distinct admission to the act reflecting the latter charge. Alternatively, it is argued that it was logically open to the jury to accept the complainant's account of the events, but entertain a reasonable doubt as to the applicant's knowledge of the absence of consent to the manipulation of the complainant's hand, bearing in mind the applicant's comments after the event as to the recent consensual sexual activity between the two, and his belief that this amounted to an indication of willingness for some level of physical intimacy between them.

Consideration

There is no dispute as to the principles of law by which a ground of appeal complaining that verdicts are inconsistent is to be resolved. The test is one of logic and reasonableness, expressed by the High Court in Mackenzie v R (1996) 190 CLR 348 at 366; [1996] HCA 35 (quoting from R v Stone (Court of Criminal Appeal (UK), Devlin J, 13 December 1954, unrep) with approval): "[The appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
As observed by Gleeson JA (with the concurrence of Harrison and Davies JJ) in Roos v R [2019] NSWCCA 67, at [43] - [45]: "Nevertheless, if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred: MacKenzie at 367 (Gaudron, Gummow and Kirby JJ). It is also to be kept in mind that a verdict of "not guilty" does not necessarily imply any "want of confidence" in the complainant but "may simply reflect the cautious approach to the discharge of a heavy responsibility": MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ). As Spigelman CJ had earlier remarked in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34]: In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M v The Queen, MacKenzie and Jones quoted above. There is a further important consideration to a challenge to the verdicts based on inconsistency. As stated by Simpson J (McClellan CJ at CL and Latham J agreeing) in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128]: In determining whether convictions are unreasonable, ... the focus of the enquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least on that basis. Simpson J continued at [130]: Before … an appellate court, faced with adverse verdicts on multiple counts, must intervene to set aside the convictions, the Court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. … The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility. See also: Jafary v R [2018] NSWCCA 243 at [37] (Leeming JA and Walton and Wilson JJ); Walker v R [2019] NSWCCA 4 at [10] (Hoeben CJ at CL, Rothman and Price JJ agreeing)."
It cannot be assumed at the outset that the not guilty verdict returned against count 2 so affects the credibility of the complainant that a guilty verdict for count 1 was not open to the jury: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ). It is not universally the case that a not guilty verdict returned against one count points to the jury's rejection of the complainant as a witness of truth. A jury is entitled to, and should, take a far more careful and nuanced approach than that to assessing the reliability of witness testimony.
After all, juries are routinely directed that it is open in considering the question of whether the Crown has proved a particular charge to the criminal standard to accept part of what a witness says, and reject part of the testimony of the same witness. In this instance, the jury were given a direction to that effect by the trial judge, being told, "[…] it for you to assess, having looked at [the witnesses] and heard them, is this someone whose evidence I accept? Do I believe them? Are they credible? Are they reliable? As the Crown has pointed out to you, you do not have to completely accept everything a witness says. You might accept some things and not accept other things. But there is nothing wrong with you doing that."
In considering why a jury may have found one count proved but not another in circumstances where, as with most sexual assault trials, there is a single critical witness in the Crown case, it is necessary to consider more broadly the evidence before the jury than that of a single witness alone. The whole of the evidence before the jury must be examined, in the context of the respective cases advanced by the Crown and the applicant and the relevant directions given by the trial judge to the jury, to determine whether any reasonable basis for the differing verdicts exists.
The jury was directed by the trial judge that, to find the applicant guilty of count 2, its members had to be satisfied beyond reasonable doubt that the applicant touched the complainant in an indecent way, that she did not consent to that act (in the sense of giving conscious and voluntary permission for the applicant to touch her), and that the applicant was aware that she did not consent.
The complainant's evidence was of considerable significance in the Crown case, since no other person saw what occurred between her and the applicant under the cover of the bedclothes.
The complainant's evidence with respect to the allegation of indecent assault placed it in the context of the sexual assault, and of her highly intoxicated state. She said in evidence in chief: "He didn't talk to me or anything and he just went straight to like lift up my dress and put his hands down my underwear. He touched like, like my, my vagina and he put a finger in as well. And then he undid his pants and put my hand to his penis and I could feel that he had an erection, but I couldn't really move because my body just felt numb. And I tried to like ask him like what he was doing but he didn't really say anything either. So my hand was on his penis and like I couldn't move so he kind of moved my hand to try and suggest to like masturbate him, and then yeah it wasn't going anywhere because I couldn't move. And then Thomas opened the door […]."
The complainant said she did not consent to either digital penetration or the placing of her hand on the applicant's penis.
It was the Crown case that, at the time those acts occurred, the complainant was severely affected by the large amount of alcohol that she had consumed, as well as the cannabis she had smoked, and was incapable of consenting to sexual activity of any kind. It was open to the jury to accept that, on the complainant's evidence, and that of others who made observations of her seriously intoxicated state. Indeed, the weight of the evidence supported a conclusion that, after she returned to the house from the courtyard, the complainant was incapable of comprehensible speech or directed movement, and was not responsive to others around her. By inference, it was entirely open to the jury to accept that the complainant was not capable of giving free and voluntary consent to sexual activity.
Whilst on the complainant's evidence alone, there may have been no real basis to distinguish between the reliability of her account of the physical events reflected by count 1, and the reliability of her account of the physical events reflected by count 2, there was other evidence available to the Crown which was also of considerable significance - the messages and conversation recorded between the applicant and complainant in which the events at the party were discussed.
The messages exchanged between the complainant and applicant electronically, and the later recorded telephone conversation between them in March 2018, provided evidence which the jury could have reasonably regarded as strongly supportive of the complainant's testimony and, in particular, of her account of the conduct that grounded count 1.
For this act, the applicant had made admissions that it was open to conclude constituted an acknowledgment to having digitally penetrated the complainant's genitalia. That is particularly so bearing in mind that the applicable definition of sexual intercourse given by s 61H of the Crimes Act at the relevant time was "sexual connection occasioned by the penetration to any extent of the genitalia".
In the written messages exchanged on the day following the party, the applicant said that he and the complainant had "felt each other up". Although he disputed in his evidence knowing the meaning ordinarily given to that phrase, he also conceded in a message that his hands were in the complainant's underwear when he got into the bed with her. Further, he admitted that "I put mine in urs", being a reference to putting his hand into the complainant's underpants. He continued: "Probably wat got u to put urs in mine I mean i was gone as well Thats why i know what i did was wrong"
In the recorded telephone conversation, the applicant was asked directly by the complainant why he had put his hand inside her underpants, responding: "I thought I was moving towards something affectionate and clearly, I was wrong".
Elsewhere in the conversation, he again acknowledged this act and, in a context where the complainant referred to him touching her to see if she was "wet", he acknowledged that what he did was wrong. The conversation continued: "Complainant: […] why would you put, like, your hands in my underwear? Like, you lifted up my dress and did that. Like, does that turn you on? Oh --- Applicant: No, no, definitely not. See, that's the thing, that's why I'm trying to, like, turn it to you, like, I'm so, like that's wh, that's why I keep saying the whole misunderstanding, miscommunication --- Complainant: Are you sorry? Applicant: --- because the, it, it, I definitely am so regretful it happened. So regretful --- Complainant: No, that's different. Are you sorry? Applicant: I'm so sorry. It shouldn't have happened. It, it was wrong."
Queen's Counsel for the applicant argued that nowhere in the text messages or recorded telephone conversation did the applicant make an explicit admission to inserting his finger in the complainant's vagina, and thus no distinction could have been drawn by the jury between counts 1 and 2. The absence of an admission using specific words like "finger in vagina" did not, however, preclude the jury from accepting that the applicant had nevertheless acknowledged penetration to some extent of the genitalia of the complainant.
In the March 2018 conversation, the complainant directly accused the applicant of touching her to ascertain whether she was "wet" or sexually aroused. The applicant did not demur, instead apologising and saying he didn't think he had been thinking that at the time. He had earlier referred in a text message to the pair having "felt each other up", a phrase that the jury likely understood to be a reference to mutual touching of the genitals, despite the applicant's denial of that proposition.
The whole of the conversation and messages between the two pointed to the applicant's acceptance that what the complainant had said happened concerning him touching her genitals had in fact happened. From the evidence of these exchanges it was open to the jury to conclude that the applicant had acknowledged that he had carried out the conduct reflected by count 1.
He also acknowledged on a number of occasions that "you don't do that to someone who's drunk and who didn't ask for it", both explicitly by accepting the proposition put to him by the complainant, and implicitly by acknowledging wrongdoing. In those acknowledgments, taken together with the evidence of the complainant's highly intoxicated state, it was open to the jury to find that the elements concerning lack of consent to intercourse and knowledge of lack of consent had been proved by the Crown.
The same conclusion as to the applicant's acknowledgment to an indecent assault having occurred, and knowledge of the touching being unwanted, could not be reached with respect to count 2.
Although the applicant frequently apologised to the complainant in a general way for his conduct, he did not at any point in the messages or recorded conversation acknowledge having taken the complainant's hand and placed it on his penis. On the contrary, he denied it.
In the messages of the day following the party the applicant gave an account to the complainant of her having removed his penis from his pants ("U pulled it out"), and placed her hand on his penis ("u had ur hand on and then in ma pabts"). In the telephone conversation he confirmed his earlier assertion that the complainant initiated the touching of his penis: "Complainant: … you also put my hand in your pants. Last time we spoke, you said that I put it in. That, and that I did it. Applicant: I'm, I'm, I, I, I am going to stand by the first answer […]"
There was thus no evidence independent of the complainant that either, the act occurred as the complainant described it or, perhaps more significantly, that the applicant had known that the complainant could not and did not consent to being touched in that way.
The jury was directed by the trial judge that it was necessary to examine the evidence of the complainant with care. The trial judge said: "[…] you have to look at the evidence of the person who is complaining with a great deal of care. You would need to be satisfied beyond a reasonable doubt that the complainer is a credible, accurate and reliable witness, because if you cannot be satisfied to that extent in regard to that witness, it will be very difficult to be satisfied beyond reasonable doubt".
The jury were earlier told by his Honour that: "Reliability and accuracy is going to be a huge matter for you to determine in this case, and the reasons for that are very obvious, because you know from the complainant's own evidence that she had had a substantial amount to drink that night. Not only that, at some stage before things started to get out of hand she also had some puffs of marijuana. I am not in a position to, and I hope none of you are in a position to say, what the combination of marijuana and alcohol is like. But clearly for this young woman the combination was not a good one because she was quite catastrophically affected by what had happened, vomiting in the bathroom apparently for, I think Mr Walker said he was in there for about an hour, and then being helped to bed, and then what happened thereafter. The defence would say to you someone who was in that situation is someone that you cannot rely on to the degree necessary to be satisfied beyond reasonable doubt that what she says about these offences can be established. That is a matter for you."
Bearing those directions in mind, the jurors, approaching their task with the caution enjoined upon them by the trial judge, may well have concluded that the Crown had proved its case to the high criminal standard of proof only where there was evidence independent of the complainant that supported her testimony. That evidence existed in the applicant's words and acknowledgment with respect to the conduct alleged by count 1, but not the conduct alleged by count 2.
Of course, the applicant had given evidence denying that any sexual contact occurred. Of these exchanges he denied that he had admitted to anything improper beyond getting into bed with an ex-girlfriend, explaining his apologies as empty of meaning. The jury were not, however, obliged to accept his evidence. The Crown submitted to the jury that the applicant's evidence was implausible and should be put to one side. The applicant himself, in his own final address to the jury, appeared to accept that the jury may have found his evidence doubtful, submitting that the jury did not have to accept his evidence to acquit him of both charges.
It was clearly open to the jury to reject the applicant's evidence as, at the very least, implausible, and set it aside, returning to the Crown case.
On the basis that, as it was instructed to do, the jury carefully examined the whole of the evidence, there was in the evidence of the exchanges between the complainant and the applicant a logical and rational basis for the differing verdicts returned to counts 1 and 2. Considering the whole of what the applicant wrote and said about the complainant's accusation that he had touched her genitals, and having regard to his apparent acceptance of that accusation without demur when speaking to the complainant in March 2018, it was open to the jury to reason that there was evidence for count 1 independent and supportive of the complainant. Adopting a cautious approach to the task, it was open to the jury on that basis to be satisfied to the criminal standard of count 1. The same independent support was not available with respect to the allegation that grounded count 2. Therein can be seen a rational reason to distinguish the verdicts returned by the jury.
I am not persuaded that the verdicts represent a compromise or some other unreasonable and impermissible approach to the evidence and the jury's task. On the contrary, the verdicts can be accepted as evidencing a careful approach in which the jurors looked for some support for the complainant's testimony, affected as her evidence was by her state of intoxication at the relevant time, finding it in relation to count 1 but not count 2.
Although the Crown outlined a second basis upon which the differing verdicts can be logically reconciled, it is not necessary to consider any other possible explanation for the verdicts returned by the jury. By reference to the evidence of the text exchanges and telephone conversations, it can be readily seen that there is a proper way to reconcile the verdicts, and conclude that the jury followed the directions given with respect to the care to be taken in assessing the complainant's evidence, with that careful approach accounting for the differing verdicts. There is no reason to find that the jury did other than properly fulfil its function of determining the facts of the matter in accordance with directions of law, and returning its verdicts accordingly.

Conclusion

I would grant the applicant leave to appeal, but dismiss the appeal.

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