NW v R

Counts 1, 2 and 3

1. Counts 1 and 3 concerned images sent by the applicant to the complainant over Facebook between 30 October and 21 November 2015 (when the complainant was 15 years old). Those images include multiple photographs of the applicant's penis and highly graphic photographs of his wife performing sexual acts on him. Those images were accompanied by sexually explicit messages including those in which he described in detail the sexual acts he would like to perform on the complainant. There were also messages in which the applicant indicated that he would like to spend time with the complainant, either picking her up or organising for a taxi to bring her to his house.
2. Count 2 related to sexually explicit photographs of the complainant that she sent to the applicant over the same period. The images sent followed repeated requests by the applicant for such images.
3. The applicant made several unsuccessful attempts to meet the complainant between November 2015 and July 2016. During this period, the applicant continued to make requests for sexually explicit photographs of the complainant, and at the same time sent her sexually explicit photographs of himself and his wife.
4. With respect to the relevance of this evidence to counts 4, 5, 6 and 7, the trial judge explained to the jury that "it may be considered as reflecting in the mind of the accused the willingness of the complainant to have a sexual connection with him". As the Crown submitted, it was also relevant as showing the depth of the applicant's sexual interest in the complainant and his persistence in seeking to have her meet up with him for the purpose of having sexual intercourse.

Counts 4, 5, 6 and 7

1. The first of these counts concerned an allegation that the applicant had sexually assaulted the complainant on 19 July 2016 at a 'lookout' which was a short drive from the complainant's parents' home. Counts 5, 6 and 7 concerned further allegations of multiple sexual assaults shortly afterwards on that day at the complainant's home. Earlier in the morning in a series of Facebook Messenger exchanges, the complainant asked the applicant whether he would drop off some cigarettes and alcohol for her if she sent some photographs of herself. The applicant responded: "How about you send me naughty pics and I'll sort something out tonight". There were further exchanges in which the applicant told her that he may be able to come by "at 1ish" with a "bottle of something".
2. As things turned out, the applicant arrived at the complainant's door at 12:59pm. In the period between 8am that morning and that time, the complainant had drunk about half a bottle of vodka and half a bottle of raspberry vodka. She met the applicant outside the front door of her parents' home. Her evidence was that she was "nauseous, dizzy" and "very intoxicated", "couldn't walk straight" and "would trip a lot", having consumed that quantity of alcohol.
3. Count 4: The complainant sat in the front passenger seat of the applicant's car and they drove to the lookout. When the car was parked and stopped, they had a conversation and the applicant put his hand on her right thigh and moved it up under her dress. The complainant got out of the car and they walked over to a picnic table. The complainant sat down on the tabletop, and the applicant put his hand on her shoulders and pushed her down so that she was laying on the table with her legs hanging off its edge. He removed her underwear, unzipped her jeans and the applicant had penile-vaginal intercourse with her. The complainant's evidence was that she did not remember what she was doing at the time, and that she "just remember[ed] freezing". She put her hands over her face about 10 seconds after intercourse commenced. After one and a half minutes they heard a car, the applicant zipped up his pants and pulled the complainant up and off the table and walked towards his car.
4. The complainant's evidence was that she did not consent to this intercourse. She said she suffered a bruised knee when she fell walking back to the car.
5. Counts 5, 6 and 7: The applicant then drove the complainant back to her house. On arrival, they had a brief conversation whilst the applicant's car was parked out the front of her parents' house. When he was not looking, she left the car, entered the house through the back door and "locked" herself in the house. She waited for the applicant to leave. He did not. She drank some water and heard a knock on the door. She opened the door and saw the applicant there. He pushed the door open and tried to take her dress off. This occurred in the front hallway. Not wanting the dress to rip, the complainant told him to stop and untied the dress from the back.
6. The applicant then took the complainant into her mother's bedroom. The complainant was sitting on the bed. The applicant unzipped his pants, took them off and put his penis in her mouth for three or four minutes, calling her a "good little whore" (count 5). He then got on top of her and had penile-vaginal intercourse with her for 10 minutes, at one point putting his hands around her throat and squeezing (count 6). The complainant described this sex as "rougher than on the picnic table". She tried to cover her eyes with her hands but the applicant pulled them away and put them onto her vagina, making her "rub it". He subsequently put his penis back in the complainant's mouth for about 5 minutes, until he ejaculated (count 7). She said that she "started to choke" as he moved his penis and out. The applicant told the complainant she was a "good girl", put his pants on and left, saying something like "thank you" or "I appreciate that".
7. The complainant's evidence was that she did not consent to anything that occurred in her mother's bedroom. As to injuries suffered during the intercourse, she said that her vagina was sore, her throat burned and she had small bruises on her thighs, elbow and knee, though she did not know when the bruises had been sustained. After the applicant left, the complainant cried, drank some alcohol and got into the shower, where she vomited. She did not remember anything until she woke up that night.
8. Later the same day, the applicant and complainant exchanged messages on Facebook Messenger. The applicant asked "Are you OK please don't tell anyone about today" at 2:21pm. The complainant replied at 8:20pm: "I'm fine… Trust me I won't." The applicant replied with a thumbs up emoji at 11:06pm and a further message at 11:13pm: "Was it that bad LOL. Thank you for today. I thought you were very hot yum mmm x." The complainant replied at 11:14pm: "Not bad. I just regret it. Thank you anyway". The applicant said at 11:15pm: "Sorry don't feel bad it was just fun girl… you obviously just needed to play… all good if you need me again just ask for the record you are amaxing (sic)". Her evidence as to why she sent the 11:14pm message was that she was "pretty scared" and did not want the applicant to think he had done something wrong.
9. The complainant deleted the applicant on Facebook, but re-added him on 27 July 2016 as she wanted cigarettes and alcohol again. On 28 July, she sent a message to that effect to the applicant, which was the last Facebook communication she had with him.
10. The Crown also led evidence of a Facebook Messenger conversation between the complainant and KM on 19 July 2016, in which the complainant said "I didn't LMAO but I did call [the applicant] and he came over and bought me a pack of cigarettes and I closed the door on his face and walked away with them"; and "Shit, I hope I'm not remembering it wrong. If I had sex with him, I would kill myself. I was so drunk, it was the actual worst". KM replied: "I would kill myself if u had sex with [the applicant]." The complainant's evidence was that she did not tell KM that she had been sexually assaulted by the applicant because she was ashamed.
11. The complainant's mother gave evidence that she accessed the complainant's Facebook Messenger account in September 2016 and saw some of her daughter's conversations with the applicant, including the photographs exchanged. She reported the matter to police.
12. The applicant was arrested on 7 October 2016. He participated in an electronically recorded interview with police (ERISP), but did not give evidence at trial. His case in relation to counts 4, 5, 6 and 7 was that he had been with the complainant at both locations, but that he had not had sexual intercourse with her.
13. In his answers to questions asked concerning the events of 19 July 2016, the applicant agreed that he had seen the complainant for around half an hour; that they drove up to a lookout; that she showed him cuts on her leg; that she "tried it on [him]" and tried to kiss him and "grabbed [his] crotch" over his clothes, in response to which he "pushed her away" and said he had to "go to work". He said that on the drive home the complainant became "very slurry" and appeared to be drunk. On their arrival at her house, she entered via the back door and opened the front door for him; he "grabbed her a drink of water" and asked "Look, are you alright?" to which she replied "No, not really". He then said "Well, I've really got to go to work, but are you gunna be all right?", and left.

Relevant principles

1. The first ground is that the verdict of acquittal on count 4 is inconsistent with the guilty verdicts on counts 5, 6 and 7. In MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1995] HCA 35, Gaudron, Gummow and Kirby JJ cited with approval Devlin J's formulation in R v Stone (Court of Criminal Appeal (England and Wales), 13 December 1954, unrep) of the test for determining whether inconsistency arises in jury verdicts upon different counts in a criminal trial, describing that test as "one of logic and reasonableness": [The applicant] 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.
2. In the context of a case involving multiple sexual assaults against a single complainant, Spigelman CJ observed 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 v The Queen (1997) 191 CLR 439; [1997] HCA 56] 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…
3. In Jones v The Queen, three acts of sexual intercourse were charged. On the complainant's evidence, the acts of intercourse took place when there was nobody present but herself and the accused. The jury acquitted the accused on the second count, but convicted him on the first and third. The plurality (Gaudron, McHugh and Gummow JJ) at 453 considered the question of inconsistency by reference to the adverse impact of the acquittal on the second count. From the jury's finding on that count, it was not open to the jury to be convinced beyond a reasonable doubt as to the guilt of the appellant with respect to the first and third counts. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. Whatever the explanation may have been for that rejection, it diminished the complainant's overall credibility such that the only reasonable conclusion was that the jurors were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident.
4. In TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130], Simpson J (as her Honour then was), with McClellan CJ at CL and Latham J agreeing, observed: Before… an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility… The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility.

Disposition of ground 1

1. Two directions given by the trial judge provide the context for consideration of this ground, which is in essence that the only rational explanation for the applicant's acquittal on ground 4 was the jury's doubts as to the complainant's credibility, and in circumstances where there was nothing in her evidence in relation to that count or the surrounding circumstances which provided any basis for supposing that her evidence was more reliable in relation to counts 5, 6 and 7 than it was in relation to ground 4. First, the trial judge instructed the jury to consider each count separately with regard to the evidence relevant to that particular count. Secondly, his Honour instructed the jury that if they had a reasonable doubt as to the truthfulness or credibility of the complainant in relation to a particular count, they should take that into account in assessing the truthfulness and credibility of her evidence in relation to the other counts.
2. Addressing the question posed by Simpson J in TK v R, and contrary to the applicant's submission, an examination of the evidence reveals a logical and reasonable explanation for the verdict of acquittal in relation to count 4 which does not suggest that the jury rejected the complainant's evidence concerning that count. That evidence included that she did not remember what she was doing at the time of the alleged assault, and that she "just remember[ed] freezing". Also, that the alleged assault occurred in circumstances where the Facebook Messenger exchanges reveal that the complainant had asked the applicant for cigarettes and alcohol and requested the meeting, including by telling him she would "do anything".
3. The trial judge provided the jury with a note setting out the elements of each of counts 4, 5, 6 and 7 (MFI 8). Those elements were that the accused: (i) had sexual intercourse with the complainant; (ii) without the complainant's consent; and (iii) knowing the complainant did not consent. The jurors were directed in relation to the third element that they had to satisfied beyond reasonable doubt that applicant actually knew that the complainant was not consenting or that he had no reasonable grounds for believing that she was consenting.
4. In the course of his closing address, the applicant's counsel referred to the circumstances in which the complainant and applicant came to meet on 19 July 2016, and submitted that it "shows that she was the one more pushing the sexual agenda", which he submitted "does go to the issue of consent that the Crown was talking about before, but we say, in any case that no sex took place". He then concluded his closing address by saying: In relation to the issue of consent that my friend referred to, we say, well, really you don't need to worry about the issue of consent because we say sex didn't take place in any case. But, we say that [the complainant] does appear to have been a person who did want to participate in sex with my client, from her text messages, and the fact the sex did not take place was not due to her lack of consent, it's due to my client not wanting to.
5. Returning then to the circumstances of count 4, after the applicant arrived at her home, the complainant willingly got into his car. They drove to the lookout and she walked with him to a picnic table and sat on the tabletop. The complainant did not communicate her lack of consent to the penile-vaginal intercourse, either verbally or physically. That reaction was not an uncommon one, and was understandable given both her age, the disparity in age between her and the applicant, and the fact that she was intoxicated at the time. However, whilst the jury may have accepted her account as both truthful and reliable, the jurors could nevertheless have had a reasonable doubt as to whether the applicant knew she was not consenting. To have had such a doubt would have been consistent with the jury adopting "a cautious approach to the discharge of [the jury's] heavy responsibility" (MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34]).
6. Conversely, on the Crown's case the circumstances of counts 5, 6 and 7 were considerably different. They did not occur in public. The applicant had dropped the complainant home and, on her account, which the jury implicitly accepted, their interaction had ended and she was waiting for him to leave. He knocked on the door, pushed his way in and tried forcibly to remove her dress. He then forced his penis so far into her mouth that she had the urge to vomit. Her account included his putting his hand around her throat and squeezing. The applicant was aware of the complainant's attempt to cover her eyes, to which he responded by ripping her hands away from her eyes.
7. The defence case at trial in relation to counts 5, 6 and 7 appeared to accept that some intimate activity had taken place in the complainant's home. Counsel for the applicant put to the complainant in cross-examination that she and the applicant had kissed and cuddled consensually in her mother's bedroom, but that no sexual intercourse had taken place. That was said to be consistent with the Facebook exchanges on the night of 19 July extracted at [32] above. However, that was inconsistent with the applicant's statement in his recorded interview that "nothing happened" on 19 July 2016, either at the lookout or at the parents' home.
8. This analysis shows that there was a rational explanation for the applicant's acquittal on count 4 which was other than that the jury had doubts about the complainant's credibility. That explanation was that the jurors were not satisfied beyond reasonable doubt that the applicant knew she was not consenting. In the face of that explanation, the jury's verdict of acquittal does not demonstrate that the jurors found the applicant to be an untruthful or unreliable witness. On the contrary, the verdict of acquittal is consistent with the jury having accepted her as truthful and reliable in her account of what occurred at the lookout, and as also having paid careful regard to the directions given by the trial judge and to the different context in which that alleged offence occurred.
9. The verdicts are not inconsistent, and ground 1 is without merit. Leave on that ground should be granted, and the appeal on that ground dismissed.

Relevant principles

1. The question for this Court is whether "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]). In answering it, the Court is required to "make its own independent assessment of the evidence" (M v The Queen at 492) and in doing so focus on whether the jury "must, as distinct from might, have entertained a doubt about the appellant's guilt" per Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]. In relation to counts 5, 6 and 7, the question for the jury was whether the jurors accepted beyond reasonable doubt the evidence of the complainant.
2. The jury's verdicts on those counts show that the jurors accepted the complainant as a credible and reliable witness. Her evidence laid bare the applicant's sexual interest and his continued pursuit of the complainant before and on 19 July 2016 for gratification of that interest. In addition, Facebook Messenger exchanges made by the applicant to the complainant within hours of the alleged sexual assault strongly supported the complainant's evidence that sexual intercourse had occurred. Those exchanges were also inconsistent with the applicant's statements in his recorded interview that sexual intercourse "definitely did not occur".

Disposition of ground 2

1. The applicant identified five matters as supporting a conclusion that the jury must have entertained a doubt as to whether the offending acts which are the subject of these three counts occurred at all. These matters are not relied on as casting any reasonable doubt on whether if the acts occurred, they did so with the complainant's consent, or in circumstances where there was reasonable doubt as to whether the applicant knew that she did not consent.
2. Those five matters are that the complainant was a "troubled child"; that she had consumed a considerable amount of alcohol; that there was no immediate complaint; that there was an absence of scientific and/or medical evidence in support of the Crown case; and that KM's complaint evidence was of little assistance.
3. As to the first, the indicators of her being a "troubled child" included her "having issues… regarding the use of/abuse of alcohol" and being a "moderator on a website called Kink Playgrounds". It was not further explained how this behaviour affected her credibility and reliability generally, or when giving evidence of the charged events. There was evidence that she had also self-harmed on occasions, that she suffered from anxiety for which she was medicated, and that she had once run away from home. However, none of these matters necessarily, or by reference to specific circumstances, is said to have undermined the credibility and reliability of her evidence.
4. More relevantly, as the Crown submits, each of these matters was before the jurors, who were well-placed to assess the complainant's evidence in the context of her relationship with the applicant and the circumstances in which the offences were alleged committed. Those exchanges are referred to in more detail in the early narrative of these reasons. They reveal the applicant's undoubted sexual interest in the complainant and his persistence in seeking to have sexual intercourse with her. The exchanges after the event also suggest that at least some intimate activity had occurred earlier on 19 July 2016.
5. Secondly, the applicant points out that the complainant was intoxicated at the time of the events charged by counts 5, 6 and 7. Her evidence was that she had difficulty walking, stumbled over words and felt sick. Counsel for the applicant sought to emphasise the effect that may well have had on her recollections as to what had occurred. However, as the trial judge observed in his summing up, it was not suggested that the complainant was so intoxicated that she was incapable of consenting.
6. The trial judge gave a clear direction in relation to intoxication, which is not the subject of any challenge. It included: Although there is evidence that the complainant had consumed alcohol, the evidence in this trial is not that she was intoxicated to the point that she could not or did not consent. A person can consent to sexual activity when intoxicated. If the Crown fails to prove that the complainant was not consenting in respect of a particular count or allegation, the accused is not guilty of that particular count. (Emphasis added.)
7. Having seen and heard the complainant's evidence, the jury was well able to assess whether she was able to give a sufficiently consistent and detailed account of the events of the afternoon of 19 July 2016 for them to be satisfied beyond reasonable doubt that those events occurred as she described them.
8. Thirdly, it is pointed out that there was no immediate complaint made. The absence of complaint fell to be assessed in the light of the complainant's evidence that she did not reveal that she had been sexually assaulted to her friend KM because she was ashamed. As the Crown submits, taking account of her age and personal circumstances, that was a perfectly understandable reaction, even more so in the light of KM's pointed response that she would "kill [herself]" if the complainant had had sexual intercourse with the applicant.
9. As the applicant's counsel had raised the complainant's delay as a factor which might undermine her credibility, the judge was required to give, and gave, the jury a warning in accordance with Criminal Procedure Act 1986 (NSW), s 294: If there be any delay in making [a] relevant complaint or a failure to complain to a person that the complainant may be expected to make a complaint to in respect of particular allegations the subject of evidence, that may indicate that the allegations or particular allegations are not true or reliable. But, remember, there may be good reasons why a complainant did not raise particular allegations in a timely manner, or at all, and a failure to do so does… not necessarily mean that any particular allegation is false. You need to consider all the circumstances in assessing whether there is good reason not to make relevant complaint and/or disclosure to a person that she may be expected to complain.
10. The complainant's failure to make complaint was not something that necessarily undermined her credibility. The jury would have been justified in thinking that it would not be uncommon for a young person in the complainant's position to refrain from making any complaint about the applicant's conduct either to her friend or her mother because of embarrassment and shame, amongst other reasons.
11. The fourth matter raised by the applicant is that there was no "forensic" or "medical" evidence to support the Crown case that sexual intercourse had occurred. That was so, and in his summing up, the trial judge drew the loss of the opportunity for a medical examination to the attention of the jury in the context of dealing with delay. However, the absence of such forensic or medical evidence was of less significance in the present case because of the Facebook Messenger exchanges in the hours after the alleged offences occurred. They included the applicant saying: "Are you OK please don't tell anyone about today" and "Was it that bad LOL. Thank you for today. I thought you were very hot yum mmm x". These exchanges were contemporaneous and incontrovertible evidence which suggested that, contrary to the applicant's denial, sexual activity had occurred.
12. Finally, KM's complaint evidence is said to be of "little assistance". From the jury's perspective, that evidence (which is summarised in [32] above) gave an insight into the complainant's reaction to the relevant events and provided a sound basis for the jury to treat her absence of complaint to KM as explicable and not as casting any doubt on the veracity of her evidence.
13. Having considered the whole of the evidence in the light of the matters raised by the applicant and the need to establish the elements of counts 5, 6 and 7, it is my view that it was open to the jury to be satisfied beyond reasonable doubt as to his guilt on each of those counts.
14. For these reasons, ground 2 is not made out. Leave to appeal on that ground should be granted, and the appeal on that ground dismissed.

Conclusion

1. In the result, the orders I propose are: 1. Extend the time for the applicant to file his draft notice of appeal to 5 April 2022. 2. Grant leave to appeal on grounds 1 and 2, and dismiss the appeal on each ground.
2. BUTTON J: I agree with Meagher JA.
3. There was a rational basis of differentiation between the verdicts.
4. Separately, on my assessment, it was well open to the jury to return verdicts of guilty on the counts on which it did.
5. WILSON J: I have had the benefit of reading in draft the judgment of Meagher JA. Like the Presiding Judge, having assessed the evidence given at trial I have concluded that it was open to the jury to be satisfied of the applicant's guilt with respect to those counts where verdicts of guilty were returned. Even without the advantage the jury had of seeing the evidence given at trial, I do not experience a doubt as to proof of the applicant's guilt. Nor do I conclude that there was inconsistency with respect to the verdicts returned, as Meagher JA concluded. I agree with the orders proposed by his Honour, and with the reasons given by him.

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