Pandamooz v R

JUDGMENT

1. ADAMSON JA: Aref Pandamooz (the applicant) seeks leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) against his conviction for two counts of sexual intercourse without consent, following a trial by jury before Culver DCJ (the trial judge) in the District Court in Sydney.
2. The indictment charged the following two counts, in identical terms, contrary to s 61J(1) of the Crimes Act 1900 (NSW) (the Act), namely that on 19 May 2019, in Darlinghurst: "he had sexual intercourse with [the complainant] without her consent, knowing she was not consenting, in circumstances of aggravation (that he deprived [the complainant] of her liberty for a period before the commission of the offence)."
3. The trial commenced on 15 November 2021. The jury returned the verdicts of guilty to both counts on 29 November 2021.
4. At the time of the alleged offences, s 61HE of the Act relevantly provided as follows: "61HE Consent in relation to sexual offences (1) Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF. (2) Meaning of 'consent' A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity. (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. (5) Negation of consent A person does not consent to a sexual activity: (a) if the person does not have the capacity to consent to the sexual activity, including because of age or cognitive incapacity, or … … (8) The grounds on which it may be established that a person does not consent to a sexual activity include: (a) if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug, or … (9) A person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity. (10) This section does not limit the grounds on which it may be established that a person does not consent to a sexual activity. (11) In this section: sexual activity means sexual intercourse, sexual touching or a sexual act."
5. Section 61HE(8)(a) of the Act in the terms set out above was in force from 1 December 2018 (when s 61HE was introduced) until 31 May 2022, when s 61HE was repealed.

The grounds of appeal

1. The applicant seeks leave to appeal against his conviction on five grounds: 1 Her Honour erred in her direction to the jury upon consent as it related to intoxication. 2 The trial miscarried because of the direction the trial judge gave in response to a jury question upon intoxication. 3 The trial miscarried because the trial judge in effect directed the jury to decide a central issues of fact (whether the complainant did consent and whether she had the capacity to give such consent) in favour of the prosecution. 4 The trial miscarried by virtue of the admission into evidence contrary to s 293 of the Criminal Procedure Act 1986 (NSW) (repealed) that the complainant had "complex things around sex because of what happened in the past and [difficulties] with intimacy". 5 The trial miscarried as a result of irregularities in the evidence and submissions prejudicial to the applicant's interest: a. the admission into evidence and subsequent direction to ignore a statement by the complainant in a recorded phone call to a sexual assault counsellor that due to a prior experience she had issues in relation to sex and intimacy (ie, that which is contended in ground 4 of the applicant's application to this Court); b. the admission into evidence (subject to a direction limiting its use) of inadmissible opinion evidence from investigating police in the applicant's ERISP; c. the admission into evidence (subject to a direction limiting its use) of inadmissible opinion evidence from sexual assault counsellors during recorded counselling sessions with the complainant; d. the questioning by the solicitor advocate for the Crown enquiring as to whether the applicant was "homosexual"; and e. the closing submissions by the solicitor advocate for the Crown where he called upon the reasoning process that the jury had been directed to not follow and in particular asserted that the applicant had a tendency to attend nightclubs for the sole purpose of having sexual intercourse.

The trial

1. In order to address the grounds of appeal, it is not necessary to summarise all the evidence at the trial in detail, although some aspects of the trial will be recounted. The complainant was the principal witness in the Crown case. The Crown also relied on evidence adduced from the complainant's friends and associates, Ms K, Ms W, Ms S and Mr P. The applicant gave evidence in his case.

The Crown's opening address

1. The Crown, in its opening, outlined the evidence which it was expected that the complainant would give, which was to the effect that she did not consent to either of the two acts of sexual intercourse. In opening address, the Crown said, of the relevance of the complainant's intoxication: "I just want to say something about the consumption of alcohol. I have already made reference to that earlier in my opening address. When you give consideration to what is at the heart of this trial, that is consent, when giving consideration to the second element, that is that the complainant did not consent to sexual intercourse, substantial intoxication is one of the grounds on which it may be established that the complainant did not consent to sexual intercourse. That of course is a matter for you to determine as to whether she was in fact substantially intoxicated, and that is for you to decide, having heard the evidence and also having seen the evidence in the CCTV footage, that is you can assess her demeanour in the CCTV footage."
2. I understand this part of the Crown's opening to allow for the operation of s 61HE(8)(a) of the Act: namely, that the complainant did not have the capacity to consent to sexual intercourse because of her intoxication. This aspect of the opening was not reflected in the closing, in light of the complainant's evidence that she did not consent and that she did, and said, things before and during the assaults to communicate her lack of consent to the applicant, rather than that she was too intoxicated to have been able to consent.

The defence identification of the issues

1. In the defence opening before the Crown case, defence counsel identified the primary issue as being consent, as the applicant admitted having sexual intercourse with the complainant.

The complainant's evidence

1. The complainant, who was 24 years old at the time of the alleged sexual assaults, gave evidence that she visited a friend, Ms K, at her home at Bondi at about 7.15pm on 18 May 2019. They consumed a bottle of rosé together with crackers and hummus over the next hour, after which they went to Bar Reggio, arriving at about 8.30pm. The complainant had two or three glasses of wine and ate pizza and pasta. After about two hours, she went with friends to a party nearby where she drank a glass of wine. Subsequently, she travelled in an Uber to the Lord Gladstone Hotel. While there, she drank two whisky shots and two full strength pints of cider.
2. The complainant, Ms K and the latter's boyfriend went to the Stonewall Hotel on Oxford Street where they joined another couple, who were their friends. According to CCTV footage tendered in the Crown case, they arrived at 1.14am and went upstairs to the second level where there was a dance floor. The complainant assessed her state of intoxication on her arrival at the Stonewall Hotel as "about a six" out of ten and, after the additional drinks, "probably seven". When she was on the dance floor she was stumbling but did not feel sick and "was just happy and, and yeah, just silly basically". In cross-examination, she accepted that she was sufficiently sober enough to speak with security staff, climb stairs, think to put her purse aside and dance unassisted. These actions were depicted on the CCTV footage which was played to the jury.
3. The complainant drank one or two whisky shots and a vodka and soda. She described herself as feeling "quite drunk but merry" and decided to dance. She thought that was when she first met the applicant. She said "… it happened so quickly, we started kissing and then I remember just running back to my friends…".
4. On the dance floor, the complainant "felt innocent and just playful" but also "quite drunk". She went back to her friends because she wanted to dance with them. The complainant noticed that the applicant was behind her "so I would sort of be dancing one second and then be dancing with him and kissing him again". She noticed that Ms K was being "protective" of her and "trying to stop" the interaction between the complainant and the applicant. The complainant was not worried at this stage, but "… was quite gangly… I just mean kind of floppy or not in full control of my motor skills, like I was just drunk". When the applicant pulled her to him, he was "playful" but "definitely persistent".
5. According to the complainant, when Ms K went back to the booth where the complainant's group had been sitting, the applicant started kissing the complainant again and taking her somewhere (to the bathroom). Her evidence was: "I just remember being - I, I just remember being confused between what was happening. So like dancing one moment, kissing the next, not knowing where [Ms K] is, and then suddenly we're like near the bar and he - he's always behind me, like pressed against me. And just - but I didn't - I, I felt like I wasn't choosing where I was going. He was moving us somewhere. And I thought maybe we were going to the bar. And then I just remember being acutely aware that I was getting further away from my friends. I don't know if that was concerning at the time at all. I just remember - I just remember that. But it was - this, this part is kind of blurry… for me, just in between the dance floor and the bathroom is, is sort of hazy. But I just - yeah. It was a lot of - I just felt like a puppet almost, like my arms and my legs were just - sorry. I'm not being very articulate. I guess just a, a bit out of control and that he was taking us somewhere."
6. The complainant said that it suddenly became light (which led her to infer that the applicant had opened the bathroom door). The applicant was leading her by the arm. The complainant described herself as quite drunk and thought that it was possible that she was at the bar (on a different level). She said: "… And then I realised we're in the corridor and to the right is the, the girl's bathroom, and to the left was the male bathroom. And I was just confused and sort of like, 'What, what, what's going on?' I don't know if I said that. I'm just - this - these were my thoughts. And then it happened so quickly. He just pulled me into the male bathroom. And it's not even like I thought if off [sic] - I just was resisting because I was so confused. And it - yeah. Sorry. He had - he was holding - leading me by my left arm. And I was sort of shaking my head and just protesting."
7. She said that she leant back "resisting sort of, just to slow down what was happening".
8. In the complainant's cross-examination, the following exchange took place: "Q. Where did you think you were going when you went through those main bathroom doors? A. I - everything up until then still consensual, I wasn't afraid of the accused and I thought I was going potentially into that other area. I thought there was a separate area to the dance floor. And yes, maybe kissing would happen but I in no way thought in my - without a shadow of a doubt thought that what happened could have happened in a public place and I had no intention or idea that I would be in a male bathroom in a matter of seconds."

Count 1

1. In the men's bathroom, the complainant was shocked by how quickly the applicant pulled her into the far right (of two) cubicles and locked the door. She believed there was another man or two in the bathroom. She described herself as feeling "gross … embarrassed and just confused".
2. The applicant started kissing her, and she did not pull back but did not reciprocate, starting to feel confused, in shock or overwhelmed. She then pulled back. She felt pressure on her shoulders and him moving her head towards his groin. She resisted and stood up, and "asserted myself as that's not something I want to do". She said: "I, I pulled back and stood up straight, and I said something to the effect of 'I, I'm sorry, I need to go', and I turned around and unlocked, like opened the door, but I was feeling frozen still and confused and it's hazy to me about how it went from that, to then being up against, up against the door, or the corner of the door, and he had, I reached around with my right hand and I felt that he had his penis out of his pants and it was erect, and …"
3. The complainant thought she opened the door inwards for a little way but believed that other men were in the bathroom. The applicant then "used [her] hesitance as an opportunity and then [shut] the door".
4. The complainant realised the applicant had his penis out of his pants, and he pulled her underwear and pants down, and put his penis in her vagina. She froze. She estimated that the applicant had sex with her for about 30 or 40 seconds before she attempted to stop it. She said that she "sort of came out of this fog where I had started to feel numb and [believed that she] tried to open the door again".
5. The complainant said that "then suddenly it was happening again". She believed that the applicant had shut and locked the door (by holding the lock). He pushed her into the corner and she hit her head. He had sex with her again for about 30 to 40 seconds.

Count 2

1. The complainant said that the applicant pulled her pants back down and put his penis in her vagina again (a third time). She remembered this "clear as day". The complainant said that this act of sexual intercourse (count 2) took about 20 seconds.
2. The complainant said: "It felt like I was making a stand and, and took energy to pull up my pants before and be like, no, and so when that happened I, I still felt I needed to leave or stop the situation and instead of going towards the door I remember sort of moving around the cubicle, so moving to the right instead of the left where the door is and he sort of was right behind me still going at first but then we ended up in a position where I was, we were facing each other. So he had stopped again when he saw me moving around. And I remember him sort of exclaiming something seeing [sic] maybe frustrated or confused."
3. The complainant interpreted his exclamation as meaning "[w]hat are you doing". She understood him to be "really frustrated".
4. The complainant pulled up her pants and opened the door, said "I need to go back to my friends" and then ran back to her friends (her evidence of running back to her friends is corroborated by the CCTV footage). She hugged her friends on being reunited with them and sat between two of her male friends with her back against the wall so that she could "see out and feel safer".
5. In her evidence in chief, the complainant identified on a plan of the male bathroom in the Stonewall Hotel where she and the applicant were at the time of sexual intercourse. These annotated drawings were tendered as exhibits in the prosecution case.
6. The complainant estimated her level of intoxication in the bathroom was eight out of ten. She considered that her cognitive ability to appreciate how they arrived there so quickly, or why it was happening, was affected not only by the alcohol but also by "the disassociation of feeling overpowered".
7. The CCTV footage was played to the complainant, who identified herself and the applicant in the footage and gave some evidence as to what it depicted.

Evidence of complaint

1. The complainant did not tell her friends that night what had happened, as she "was in shock and also felt very guilty and ashamed and disgusted".
2. Ms W, with whom the complainant had breakfast the following day, noticed that she was a bit upset. She said that the complainant had mentioned that she had hooked up with someone and was not sure what happened.
3. On 20 May 2019 and 22 May 2019, the complainant called the 1800RESPECT line, which she said was a counselling service "for sexual assault". Audio recordings of the two calls were played to the jury at trial, and edited transcripts provided to the jury. These transcripts are the subject of ground 4. What occurred in relation to the playing of the audio recordings and transcripts, which is relevant to grounds 4, 5a and 5c, is set out in detail below.
4. On 21 May 2019 (the day between the two calls), the complainant was examined by Dr Mary Stewart from the Northern Sydney Sexual Assault Service at Royal North Shore Hospital. Dr Stewart gave evidence of what the complainant had told her which broadly corresponded with the complainant's evidence.
5. Ms S, a colleague of the complainant, gave evidence of what the complainant had told her on 23 May 2019.
6. The following week, the complainant went to Mona Vale Police Station and made a statement. Complaint evidence was also adduced from others, including Mr P and Ms K.

Other evidence in the Crown case

1. The Crown called Dr Van Niuwenhuijzen, a pharmacologist, who gave evidence as to the complainant's estimated blood alcohol level at the time of the alleged offending.
2. The Crown also played the police interview of the applicant (ERISP), which was conducted on 30 June 2020 (some 13 months after the alleged offending). A transcript was provided to the jury as an aide-memoire. The applicant was questioned about his knowledge of the complainant's state of intoxication: "Q 182 … Do you remember the female in the cubicle if she was intoxicated? A Really what I can believe she should've been intoxicated but can I see her face or picture ..... please. Q 183 Can you answer the question? A In my view people who go there most of them are intoxicated. I'm intoxicated she's intoxicated. Q185 Thank you. Nothing else. A (int:) So the girl says - - - DETECTIVE SENIOR CONSTABLE SCHARKIE Q 186 No, no, no. Is he saying she was intoxicated? A I can't say that, Sir. I don't know. I was intoxicated. Q 187 Yeah. A But there are other people there ..... they booze a lot. Q 188 Yeah. A I have no knowledge about that." [Emphasis added.]

The defence case

1. The applicant gave evidence that the complainant had consented to the sexual intercourse. In his evidence, he described oral sex, mutual masturbation, followed by sexual intercourse (one act of which lasted, on his evidence, about four minutes).
2. In cross-examination, he confirmed he went to the Stonewall Hotel to look for people he knew and that he went to level 1 as the music was better. He denied his objective was to have sex. When he was asked about whether, since he had also had sex at the Stonewall Hotel the week prior, he thought he may be able to have sex again, he said he did not think of having sex with the complainant until he asked her.
3. During the applicant's cross-examination, the following exchange occurred: "Q. In your evidence in chief you said that the Turkish fellow who you spoke to as is seen on the footage said he was going to did you say the ARQ nightclub? A. INTERPRETER: That's what he told me. Q. Had you ever been to the ARQ nightclub? A. INTERPRETER: Before, yes. Q. When was that? A. INTERPRETER: I can't recall but that's also a gay club. It's a famous gay club, but the ladies don't go there as much, most of them are males. Q. Are you homosexual? YEH [the applicant's trial counsel]: I object." [Emphasis added to indicate the question which is the subject of ground 5d.]
4. The trial judge dealt with the objection in the absence of the jury and rejected the question. When the jury returned the trial judge gave the following direction (which was not sought by the parties but, when suggested by her Honour, was agreed to by them): "Ladies and gentlemen, you've heard reference during the course of the evidence to the circumstance of the Stonewall Hotel being known as a gay club. I need to make it clear to you all that none of the lawyers are in any way trying to draw any adverse comment about homosexuality or gay people. That's not at all what either lawyer is seeking to do and you must not engage in any prejudicial thinking about gay people or homosexuals or any matter connected with that sexuality."
5. The applicant's trial counsel did not ask the applicant about the complainant's state of intoxication. Nor did the prosecutor cross-examine him about this topic.

Discussion prior to closing addresses in the absence of the jury about direction to be given regarding consent

1. On 25 November 2021, the trial judge provided the parties with a draft elements document, marked MFI 14, which included a definition of "consent", as follows: "A person does not consent to sexual intercourse if the person does not have capacity to consent to the sexual intercourse. A ground on which it may be established that a person does not consent to sexual intercourse is when the person consents to the sexual intercourse while substantially intoxicated by alcohol. It does not follow if, for example, you find [the complainant] was intoxicated by alcohol, that you must be satisfied beyond reasonable doubt that she did not consent to the sexual intercourse. Instead, it is a relevant fact, if you find that she was intoxicated, that you should consider in deciding whether the Crown has proved beyond reasonable doubt that [the complainant] did not consent to the sexual intercourse."
2. Later that day (25 November 2021), the trial judge revisited this direction and said to the parties: "One thing I wasn't sure about in terms of what the parties' wishes might be is this; 'a person does not consent to sexual intercourse if the person does not have the capacity to consent to sexual intercourse.' This is directly taken from s [61HE] of the Crimes Act as it applied at the date of the alleged offences. As required by the authorities I've only taken the parts that could possibly be relevant in the circumstances of this case. So then it goes on to say, 'A ground on which it may be established that a person does not consent to sexual intercourse is when the person consents to sexual intercourse whilst substantially intoxicated by alcohol.' My fear with putting that in there is that whilst that replicates, as relevant, the wording of the legislation, at no point did [the complainant] say she consented." [Emphasis added.]
3. The trial judge indicated a concern that that might be confusing, and it might be better to say, "if you find [the complainant] was intoxicated by alcohol you can take that into account in considering whether she had the capacity to consent to sexual intercourse". However, her Honour then said: "Or given the complainant was adamant that she at all stages did not consent my fear is this; that the Crown might wish to say on the aspect of reasonable grounds for the accused to believe that she was consenting the Crown cross-examined the accused about his awareness of her intoxication so I think I need to make reference to how the jury can use, if they choose to do so, any fact of intoxication they might find in [the complainant]. So to repeat; I was contemplating substituting the sentence which is a direct lift from the legislation, namely, "A ground on which it may be established that a person does not consent to sexual intercourse is when the person consents to sexual intercourse whilst substantially intoxicated by alcohol", to substitute that instead with, 'If you find that [the complainant] was intoxicated by alcohol you can take that into account in deciding whether [the complainant] had the capacity to consent to sexual intercourse.' But, again, the reason I didn't put that in there in the first place is, again, I am fearful it is misleading the jury. She says, "At all stages I never consented. Element 2 is about her state of mind alone. She is not suggesting, "I did not have the capacity." She does say she froze but that is dealt with by the fact that lack of consent does not have to be - there does not have to be resistance for there to be a lack of consent. This meandering discussion by me is my way of saying my preferred view is that on p 5 under the heading, 'Consent.' Instead I would prefer to take out that paragraph, the third paragraph, and instead leave [the complainant's] intoxication as a circumstance the jury can consider when considering if the accused had reasonable grounds to believe she was consenting." [Emphasis added.]
4. Ultimately, the parties agreed that the paragraph defining consent (extracted above) ought be deleted because it was not relevant to whether the complainant consented (element 2, see below), because of the complainant's evidence that she did not consent (and the defence case that she did). The trial judge confirmed with the parties that the evidence of the complainant's intoxication was relevant to whether the applicant knew that she did not consent, was reckless as to whether she consented or had no reasonable grounds for believing that she did consent (element 3, see below).

The Crown closing address

1. In closing submissions, the Crown did not raise the ground in s 61HE(8)(a) of the Act (that the complainant only consented because she was substantially intoxicated). Instead, the prosecutor emphasised the complainant's evidence that she did not consent to the sexual intercourse, submitting it was very clear that the complainant was not consenting to either act of intercourse. The Crown acknowledged that the complainant was intoxicated and submitted that this affected her ability to make sense of the circumstances at the time. The Crown highlighted that the complainant was on the dance floor with friends, was intoxicated and having fun in an unfamiliar nightclub (where she did not know where the toilets were) before encountering the applicant at 1.41am, entering the toilets at 1.47am and, at 1.53am, running out of the toilet to return to her friends.
2. At the end of his closing address, the prosecutor said: "I'll conclude with this. I want to say something finally about the accused's evidence coupled in fact I suppose with the CCTV footage because we know that he attended the Stonewall Hotel at 12.50am on 19 May 2019. He went there alone. His friends were not there. The fellow whom he ultimately ended up talking to, the Turk, the accused only saw him for the first time after the sexual intercourse has concluded. The accused did not drink at the Stonewall Hotel even though he was not in fact a teetotaller. He was dancing by himself. The question which you might want to ask yourselves is, why was he there? It's a matter for you of course but just also bear this in mind. He had sexual intercourse by his own admission at the Stonewall Hotel in the toilets there only a week earlier. In his own mind he was a handsome man. We know this because he said as much in evidence. He said this, 'When [the complainant] turned towards me and she was interested in me and told me that 'You're handsome' because I have heard this from many people before, I know the meaning of it and I told her, 'Thank you, you're gorgeous.' What do we make of this? This is a man who thinks he can go to … a nightclub - what I'm suggesting to you is that he went there for only one purpose and that was to have sexual intercourse at that nightclub. He wasn't there for company. He didn't even know whether his friends were going to be there or not. He didn't go there to listen to the music. He didn't go there to drink alcohol. He went there for just one purpose. Don't forget this, that within five minutes of meeting her on the dance floor he was already steering her towards the toilets where two non-consensual acts of sexual intercourse took place. The accused exited the toilet area at 1.52:36 and then four and a half minutes later, at exactly 1.57am he had exited the nightclub, putting off hanging around on the off chance he might see some more friends or spend some more time with the Turk. So in the intervening time, that is, in that time of 1:52:36 when he exited the toilets to when he exited the nightclub he did the following. He had time to have a glass of water, walk in the direction of [the complainant], tell his Turkish friend that he had just had sex with her, and then shortly after that left the premises and, on his evidence, went home." [Emphasis added to indicate the portions which are the subject of ground 5e.]
3. At that point, the jury was sent out for the adjournment and the trial judge raised the possibility that the Crown submission invited the jury to engage in illegitimate tendency reasoning. After lengthy consultation with counsel, her Honour brought the jury back and gave an anti-tendency direction.

The defence closing

1. Defence counsel made much of the circumstance that the complainant did not tell her friends on the night and said that she did not tell them about the sexual intercourse "[b]ecause she was happy". He placed significance on the circumstance that she did not tell anyone that she had been sexually assaulted until she rang the 1800RESPECT number. He said: "She called the 1800RESPECT line the following day. The staff member on the hotline effectively tells her what to think. If you listen to the call and look at the two transcripts as an aide memoire, you can see that the staff member basically tells her, in the act of counselling in order to counsel her, that she was sexually assaulted, after being told very little by the complainant. The staff member then tells her that's sexual assault. The staff member says that he might be doing it to other women. That appears to fortify her. She informs her of situations where women have been plied with alcohol prior to being raped. That's different from this. She was never plied with alcohol. Despite that, she is still uncertain as to whether or not there was a sexual assault, and she says that quite expressly during the call. The staff member explains to her all about the SAIK test. The staff member says, 'It's what we call a sexual assault service', and then she says, 'I, like, mm I don't - I feel guilty saying that was sexual assault. On the second 1800RESPECT call - let's take a step back. If we accept that all the guilt, she feels is the guilt she has with drinking and putting herself in that position, then that can't be the case when she calls up again on the 1800RESPECT service two days later. It seems from the call that whatever work - Nellie, being the first person she speaks to - has done in persuading her has become unwound. Julia asks her what is the biggest cause for her guilt. She says to Julia in clear, coherent, articulate terms, that she worries that it was not sexual assault. If she has these concerns, why would you entertain the proposition that she was sexually assaulted? There is doubt stemming from the complainant's version itself and it will be them that she has told her friends things which are inconsistent with what she has told you."

The summing up

1. On Friday 26 November 2021, the tenth day of the trial, the trial judge commenced her summing up. Her Honour gave the jury the elements document (MFI 15) and took the jury through the elements of the offence charged. In summary, the document set out the following elements in respect of each of the two counts which were required to be proved by the Crown beyond reasonable doubt: 1. that the applicant had sexual intercourse with the complainant by inserting his penis into her vagina (element 1); 2. that the complainant did not consent to the intercourse (element 2); and 3. any one of the following (element 3): 1. the applicant knew that the complainant did not consent to the intercourse; 2. the applicant was reckless as to whether the complainant consented to the intercourse; or 3. the applicant believed that the complainant was consenting but had no reasonable grounds for believing that the complainant was consenting.
2. Neither the elements document, nor this portion of the summing up, made any reference to the complainant's intoxication. The jury was, however, directed that it could not take into account any intoxication of the accused.

The jury question

1. During the morning tea adjournment, the trial judge received two notes from the jury, only the first of which is relevant to this application. The first note (the jury question) read: "Can someone legally give consent when significant intoxication is present?"
2. The applicant submitted (as addressed below in relation to grounds 1, 2 and 3) that the trial judge should simply have answered the question in the affirmative. Her Honour informed the parties that she proposed to repeat the definition of consent; remind the jury of the complainant's evidence that, at no stage did she consent; and also inform the jury that they were entitled to "consider any apparent symptoms of intoxication when [they came] to consider the accused's position and understanding of [the complainant's] consent". Both parties agreed with this approach.
3. The trial judge brought the jury back and answered the jury question as follows: "I want to start with the question, 'Can someone legally give consent when significant intoxication is present?' Ladies and gentlemen, I am going to answer that, rather than generally speaking, in the context of this case, because you will remember that the whole filter for everything is the fact that you are to bring your decision making based on the evidence. So that is why I am not going to speak generally. I am only going to speak in terms of the available evidence in this case. You will remember that [the complainant's] account at all stages was that she did not consent. She is not saying she consented because she was really drunk. She is saying she did not consent at any stage to sexual intercourse with the accused. The aspect of intoxication, if you find that [the complainant] was intoxicated by alcohol, is for you, if you wish, to take into account whether symptoms of that intoxication would have been apparent when you come to consider element 3, the accused's state of mind. You will see the various pathways there the subject of your second note, and we will come back to that. Symptoms of any intoxication apparent in [the complainant] are matters that may be taken into account when you come to draw inferences, or not draw inferences, about the accused's state of mind from the available evidence. I hope I have addressed your question. I know it is not a direct answer, because I do not want to bother you with law that does not arise in this case. I am only confining my answer to where it can arise if you consider it relevant in your consideration of the matters."
4. As referred to above, the jury returned verdicts of guilty in respect of both counts on the following Monday, 29 November 2021.

The requirement for leave

1. It was common ground that leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rules) was required for all grounds as no objection was made by the applicant's trial counsel to any of the matters now raised as grounds of appeal. Indeed, in respect of each of the matters raised, the applicant's trial counsel, after having been consulted as to the correct approach, acceded to the course proposed and adopted by the trial judge. Further, as none of the grounds raises a question of law alone, leave to appeal is also required. As the merits of each ground are relevant to the grant of leave, I propose to address the question of leave at the conclusion of my reasons.

Whether there has been a miscarriage of justice

1. Each of the grounds of appeal, except for ground 1, alleges that the alleged error or irregularity identified caused the trial to miscarry. Before turning to the grounds of appeal, I propose to identify the relevant principles which apply to the determination whether a trial has miscarried.
2. Section 6(1) of the Criminal Appeal Act relevantly provides, as its second limb, that the Court shall allow an appeal "on the ground of the wrong of any question of law" and, as its third limb, "or that on any other ground there was a miscarriage of justice". Both limbs are subject to the proviso that the Court "may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
3. To the extent that the second limb error is relied upon, the applicant must satisfy the Court the error of law produced a miscarriage of justice in the sense of a departure from trial according to law: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [4], [13]. An inconsequential error is not a miscarriage. The applicant must show that the irregularity (or error) had the meaningful potential or tendency to have affected the result of the trial: Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 (Hofer) at [116]-[118] (Gageler J). At [116], his Honour explained (footnotes omitted): "In the application of the miscarriage of justice ground, there is no principled reason for treating 'an error in strict law' differently from another error or irregularity in the conduct of a trial. The miscarriage of justice in a particular case might arise from a singular error or irregularity, or it might arise from a cumulation of errors or irregularities some or all of which might or might not be connected and some or all of which might or might not be capable of being characterised as errors of law. Whether or not some or all of them might be characterised as errors of law, the consideration required to be given to their individual or cumulative consequence remains the same."
4. At [41], the plurality (Kiefel CJ, Keane and Gleeson JJ) said: "A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused. This accords with the long tradition of criminal law that a person is entitled to a trial where rules of procedure and evidence are strictly followed."
5. In DS v R [2023] NSWCCA 151 at [120], Yehia J (Beech-Jones CJ at CL and Weinstein J agreeing), after considering Hofer and authorities referred to below, proceeded on the basis that the error or irregularity will rise to the level of a miscarriage of justice where it is of a nature and degree that could realistically have affected the verdict, or verdicts, of guilt that were actually returned by the jury in the trial.
6. In Saunders v R [2022] NSWCCA 273, Simpson AJA (Hamill and Ierace JJ agreeing) said: "92 … on the basis of the reasoning in Hofer, (including the reasoning of Gageler J) … the blanket rule that any departure, no matter how inconsequential, from rules of law, evidence or procedure, will constitute a miscarriage of justice for the purposes of the third limb of s 6(1) (and before resort to the proviso) is no longer applicable. To establish a miscarriage of justice for the purposes of the third limb of s 6(1), it is necessary that an appellant establish, not only error, but also that the error was prejudicial in the sense that it 'had the meaningful potential or tendency to have affected the result of the trial'. Beech-Jones CJ at CL (with whom Davies and Wilson JJ agreed) had taken a similar approach in Zhou v R [2021] NSWCCA 278 at [22]. 93 I am content … to proceed on the basis that, for a miscarriage of justice as contemplated by the third limb of s 6(1) of the Criminal Appeal Act, it is not sufficient to identify some inconsequential error of law, fact, evidence or procedure. It is necessary, also to establish that the error did, or might have had, a prejudicial effect on the accused's prospects of acquittal."
7. It follows from the principles set out above, that the applicant needs to establish a connection between the alleged error or irregularity and the verdict: Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 at [134] (N Adams J), referring to Hofer at [120]. The different terms used to explain a finding of miscarriage, such as "real chance", "significant possibility", "prejudicial", all are different ways of expressing a realistic possibility of a causal connection between one or more identified legal errors or procedural irregularities and the verdict returned by the jury: Hofer at [120].

Grounds 1-2: the direction given by the trial judge regarding element 2 (whether the complainant consented to sexual intercourse with the applicant)

1. These two grounds will be addressed together because they are related. These grounds turned on the following two matters, which will be addressed in turn: 1. the submission made by Mr Carroll, who appeared for the applicant, that the trial judge ought not to have directed the jury that they could take into account the complainant's intoxication when assessing the applicant's mental element for the purposes of element 3 in circumstances where the applicant had not been cross-examined about his knowledge of the complainant's intoxication; and 2. the answer which the trial judge gave to the jury question and to the additional directions which the trial judge gave in that context.

The prosecutor's decision not to cross-examine the applicant about the complainant's intoxication

1. The first submission can be addressed briefly. As referred to above, the Crown tendered the applicant's ERISP, in which he said that he had no knowledge of the complainant's state of intoxication. It must have been readily apparent to the applicant and his counsel, through the Crown opening and the evidence adduced from the complainant and the pharmacologist, that the Crown was relying on the complainant's intoxication as part of the circumstances surrounding the encounter between the applicant and the complainant on the dance floor which led to her being in a male toilet cubicle with the applicant: see Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16D-F (Hunt J). The Crown's evidence of the complainant's state of intoxication included her own evidence about what she had drunk in the hours preceding the sexual intercourse and how she felt during particular periods that evening. The Crown also relied on the CCTV footage which depicted the complainant as being somewhat disinhibited but also in control of her movements (able to climb and descend stairs, dance and run back from the male toilets to join her friends in the booth). Her intoxication was relevant to her disorientation, the expression of her lack of consent and her reaction to what occurred.
2. There was no utility, from the Crown's point of view, in putting to the applicant in cross-examination his (inferred) understanding of her state of intoxication in circumstances where he had said in his ERISP that he did not know about it and gave no evidence in chief as to her state of intoxication. The Crown did not seek to controvert the applicant's evidence that he "had no knowledge" of the complainant's state of intoxication. Accordingly, there was no issue joined on that matter. Therefore, there was no need for the Crown to cross-examine him to the contrary. It was understandable that the prosecutor decided not to give the applicant an opportunity to give a different version, in circumstances where he had not been asked about it in chief.
3. In these circumstances, there was no obligation on the Crown to cross-examine the applicant about his knowledge of the complainant's state of intoxication: see R v Arnott (2009) 26 VR 490; [2009] VSCA 299 at [105]-[109] (Ashley JA, Nettle and Redlich JJA agreeing).
4. Thus, the trial judge was not only entitled, but also obliged (given the way the Crown case had been put), to direct the jury as to how they could use the evidence of the complainant's intoxication when assessing the applicant's state of mind for the purposes of element 3, to which it was relevant. No error or irregularity on this basis has been established.

The answer to the jury's question

1. Mr Carroll submitted that the trial judge ought to have answered the jury question "Yes", since that answer would have informed the jury of the correct legal position: namely, that a substantially intoxicated person could (in the sense of having the capacity to) consent to sexual intercourse. In the alternative, he put forward various options which he contended would have been a proper answer to the question.
2. He contended that the trial judge's answer was not responsive since it did not, in fact, answer the question. He submitted further that it might have confused the jury by making reference to element 3 as well as element 2, when the question pertained only to element 2. He submitted that it was also prejudicial to the applicant since it provided the jury with a "pathway to guilt" (because the trial judge in her answer referred to the complainant's evidence that she did not consent).
3. Mr Carroll also submitted that this Court ought not infer that defence counsel at trial was competent when he acceded to the trial judge's proposed answer since this was a question which could be determined by this Court on an objective basis. He submitted that, because the inquiry was objective, there was no denial of procedural fairness in his not having raised the alleged incompetence of defence counsel as a separate ground of appeal, since it did not matter what defence counsel's subjective view was.
4. I am not persuaded that the trial judge's answer was erroneous. Although her Honour could have answered the question in the affirmative, there were good reasons for her Honour to answer it in the way she did.
5. In Alford v Magee (1952) 85 CLR 437; [1952] HCA 3, the High Court (Dixon, Williams, Webb, Fullagar and Kitto JJ) adopted the approach advocated by the late Sir Leo Cussen (a former Chief Justice of Victoria), who insisted that it was "of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them" (at 466). The High Court endorsed the statement that "the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are."
6. The Crown case, as confined by its closing address (Ngo v R [2023] NSWCCA 201 at [94]-[95] (Adamson JA, Chen J agreeing)), was that the complainant did not consent and manifested her lack of consent by resisting, freezing and trying to open the cubicle door to get away. It was not the Crown case that the complainant consented only because she was substantially affected by alcohol (which would have attracted the operation of s 61HE(8)(a) of the Act). The defence case was that the complainant consented by enthusiastically participating in sexual acts with the applicant (such as oral sex and mutual masturbation) as a prelude to the sexual intercourse to which she consented.
7. Thus, there was no issue joined on the complainant's capacity to consent or the extent to which that capacity was the consequence of substantial alcohol intoxication. It followed that the jury did not need to know of the effect of s 61HE(8)(a) of the Act because it did not arise on either of the two cases. By not answering the question directly, her Honour can be taken to have been abiding by the well-established limits on the trial judge's licence to explain the law to the jury, which were endorsed in Alford v Magee.
8. In substance, what her Honour did in answering the question was to remind the jury that the complainant's evidence was that she did not consent and not that she consented because she was really drunk.
9. It is also significant that the trial judge, in accordance with the approach approved by this Court in DJF v R [2011] NSWCCA 6 at [16] (Giles JA, R A Hulme J agreeing), consulted extensively with counsel about how the question ought be answered before bringing the jury back. Both counsel agreed with the trial judge's proposed answer, which was then given to the jury in accordance with their agreement.
10. Where an applicant seeks to rely on alleged incompetence of counsel in an appeal against conviction, it is generally necessary for the applicant to include a separate ground of appeal to that effect as a matter of procedural fairness to the Crown. To the extent possible, this Court ought determine an appeal which involves such an allegation by examining the record of the trial and determining from objective circumstances whether the applicant has had a fair trial: Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at [10] (Gleeson CJ). However, there are cases where a party (usually the Crown) may wish to adduce subjective evidence regarding the reasoning of the applicant's trial counsel to enlighten this Court as to the reason for the forensic decision which is the subject of challenge and the Court allows such evidence to be admitted: see the discussion of the authorities in Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419 at [29]-[31] (Macfarlan JA, Rothman and Bellew JJ agreeing).
11. In the present case, notwithstanding the absence of a separate ground alleging incompetence of counsel, the question can be dealt with shortly. There was no prejudice to the applicant in the question being answered in the way proposed by the trial judge and acceded to by the applicant's trial counsel. Indeed, by reminding the jury that the complainant said that she did not consent, her Honour forestalled the jury convicting on the basis that the complainant consented because she was drunk (and that, accordingly, she had not consented).
12. In light of the trial judge's other directions, the jury would have understood that it had to be satisfied from the complainant's evidence that she did not actually consent before it could return a guilty verdict and that, if there was a reasonable possibility that she consented, it would be obliged to return a not guilty verdict. Thus, the answer to the jury question tended to favour the applicant because it removed from the jury's consideration the question whether the complainant had the capacity to consent. In these circumstances, there was a clear forensic benefit to the applicant in the question being answered in this way, as his trial counsel can be taken to have appreciated. In these circumstances, the approach taken by the applicant's trial counsel provides powerful evidence that he saw no injustice or error in the trial judge's answer to the jury question or subsequent directions.
13. The further direction given by the trial judge about the relevance of the complainant's intoxication to element 3 was not responsive to the jury's question. However, since it was related to the topic of intoxication (which arose in answer to the jury question) it was not inappropriate for the trial judge to give the jury that direction (it not having previously been given) as her Honour was still in the middle of the summing up.
14. For the reasons given above, I am not persuaded that there was an error or irregularity, much less one which would be sufficient to have the effect alleged (of causing the trial to miscarry), since I do not consider that the answer was capable of affecting the verdicts which the jury actually returned.
15. For these reasons, neither ground 1 nor 2 has been made out.

Ground 3: the trial judge's reference to the complainant's evidence

1. Mr Carroll submitted that, by referring to the complainant's evidence that she did not consent and not to the applicant's evidence that she did, the trial judge directed the jury to decide a central factual question in favour of the prosecution.
2. I do not accept this submission. When the direction is read in context, it is plain that the trial judge was referring to the complainant's evidence to remind the jury that the complainant did not say that she only consented because she was drunk. Rather, the complainant's evidence was that she did not consent (and, by implication, that intoxication was not such as to deprive her of her capacity to withhold her consent). It was not necessary, in answering the jury question, for the trial judge to refer to the applicant's evidence that she did consent. Further, there was nothing in the words used by the trial judge to indicate to the jury that it was bound to accept the complainant's evidence (and plenty in the balance of the summing up that it was a matter for the jury, as the tribunal of fact, to determine). I am not persuaded that the applicant has established any error or irregularity as alleged in ground 3.

The background to the playing of the recording of the calls made by the complainant to 1800RESPECT and the provision of the transcript of such calls

1. In order to address grounds 4, 5a and 5c, it is necessary to set out what occurred when the audio recordings from two calls made by the complainant to 1800RESPECT on 20 May 2019 and 22 May 2019 were played, and transcripts provided, to the jury.
2. On 18 November 2021, the Crown foreshadowed that leave would be sought for the recordings of the two calls made by the complainant to 1800RESPECT to be adduced in evidence. The Crown indicated that the parties were in agreement and the complainant had waived sexual assault communications privilege (which arose from s 293 of the Criminal Procedure Act 1986 (NSW)). The Crown provided transcripts of the recordings to the trial judge.
3. The next morning, 19 November 2021, the Crown informed the trial judge that the transcripts (which had already been provided) were to be edited. The prosecutor said that he had already discussed one transcript with defence counsel (of the call on 20 May 2019) and that the second (of the call on 22 May 2019) was "straightforward".
4. Subsequently, the jury was provided with the transcripts of the recording of the first call to help them understand the audio recordings, which were then played to the jury. While the recording of the first call was being played, the prosecutor noticed that statements which were intended to be excluded had not been edited from the transcript of the 20 May 2019 call and stopped the recording before that part was played. The prosecutor indicated that he wanted to raise something in the absence of the jury. The trial judge (after confirming with the prosecutor that this was appropriate) asked the jurors to leave their transcripts on their seats before leaving the courtroom.
5. The portion of the transcript which ought to have been deleted was as follows: "Staff member: Yeah, okay, and is this the first you call or have you called before? Caller: I have called before but it was about something different, a while ago. Staff member: That's perfectly okay, you can call as many times as you like. I just wanted to check that - whether you had or hadn't." [The portion in bold will be referred to as the first statement.]
6. The trial judge said: "I doubt whether the jurors would have read ahead and seen that because you pulled up very quickly, thank you. What do you ask that I do? I think we should collect all the transcripts from the chairs."
7. The trial judge and the parties agreed that the transcripts be collected from each juror's place and destroyed, that the audio recording be edited and that a fresh transcript be prepared, which deleted the relevant portion. The trial judge asked whether there was any other issue and asked that defence counsel also check the edited version.
8. The trial judge raised a further issue with the parties in the following terms: "HER HONOUR: It's apparent to me that in this call as part of the counselling the speaker tells [the complainant] that some things are not acceptable, 'That's not okay' and whatever. I think there should be something said to the jury. SOLICITOR ADVOCATE: Yes, I agree. HER HONOUR: What I'm contemplating is that what should be said to the jury is that the communications were in the context of a counselling communication and that, of course, the only person or people who can determine whether the accused actually did what is charged is in fact the jury. … And whilst opinions may be expressed about what's okay and what's not okay, that's not a matter for anyone else other than the jury in accordance with the directions of law I give them and based on the evidence as they find it."
9. Both parties agreed with the direction proposed by the trial judge. The following further exchange occurred in the absence of the jury: "HER HONOUR: Can I just check that the parties do want left in there the staff member saying, '[The complainant's name], what I'm hearing is this is not your fault', and what sounds like to me is, 'You were sexually assaulted in that room'? SOLICITOR ADVOCATE: Mr Yeh [the applicant's trial counsel] and I have discussed all of this before and Mr Yeh would like it to stay in. HER HONOUR: All right. Look, I can see a forensic position that might be taken by the defence insofar as the evolution of the complaint is concerned. I can see there may be a forensic purpose. The best thing I can do is to say that anyone else's opinion is not the issue. It's not available for the jury to accept as an opinion but is instead only for the context of the communication between [the complainant] and the speaker but they must not use that comment as an opinion that would in any way be evidence of what they should decide."
10. When the jury returned to Court after the adjournment, the trial judge said: "… there was something that was in the transcript that really just couldn't help you in any way determine the issues in this case so that's why your previous transcript has been removed. What the law requires is that lawyers be able to streamline things for trial and remove things that can't possibly help a jury so don't be troubled by the fact that there have been edits made… So if any of you read ahead in that transcript please totally put out of your mind the previous transcript. The transcript that's about to be given to you is more reflective of what's on the tape."
11. The trial judge also gave a direction about the opinions expressed in the recording as foreshadowed above.
12. The audio recording was played to the jury. The jury was not provided with any transcripts at that stage because they had not yet been prepared (since the transcript of the first call was still being edited). During one of the breaks, the trial judge again raised the issue of the counsellor's comments in the following exchange: "HER HONOUR: The counsellor's comments have, in my view, a lot of potentially prejudicial aspects. I have understood that the defence wanted those comments in, as I understand it, to suggest that there was a position originally taken by the complainant with respect to the events on the evening and that following this counselling communication certain things have evolved in the complainant's account. That's as my understanding goes. YEH: That's right. Yes. HER HONOUR: So, I can understand there's a probative value. But, I have to control the prejudicial effect of what the counsellor is saying. So far I have attempted to do that in very brief contemporaneous form. Do the parties ask that I say more at this stage? Because, in my view much of what this counsellor is saying does need to be contained in terms of the potential prejudicial effect. Have I gone far enough, Mr Yeh? YEH: I think you've gone far enough."
13. The correct approach was discussed at length with defence counsel. The trial judge proposed that a further direction be given to contain the risk of prejudice arising from the counsellor's comments. The breaks were longer that day because the complainant sought them due to the stress of hearing the recording of her conversations to the 1800RESPECT line.
14. When the jury returned, the prosecutor proposed that the second call be played. After it was played, the trial judge gave the following direction: "… You've now just heard two different conversations, two different counsellors, so I need to remind you again because it is important and you must apply this direction to your consideration of the evidence. What the counsellor's said is only available to be used by you as putting a context to the responses given by [the complainant] in those conversations. The counsellor comments, either counsellor, cannot be used as any expert opinion about what people do or don't do, it can't be used by you as suggesting any tendency or likelihood of the accused doing things or not doing things. Remember, neither counsellor was there, neither counsellor saw events on the evening in question. The comments made by the counsellors cannot be used by you to make it more likely or less likely the alleged offences occurred because it's not relevant for that purpose. The only relevance as I said, the only use you can make of things said by the counsellors is as to an understanding of the context in which [the complainant] then gave certain responses."
15. After a couple of questions were asked of the complainant, her evidence in chief concluded and her cross-examination began.
16. At the end of that day (19 November 2019), after the jury had been sent away for the weekend, the prosecutor informed the trial judge that, despite the editing, the 1800RESPECT recording still included a reference by the complainant to a prior incident. The reference was in the first call, when the complainant said to the 1800RESPECT staff member: "I just - I have all these complex things around sex because of what happened in the past. I suppose he didn't know that and he still did those things so [unclear]". [The portion in bold will be referred to as the second statement.]
17. In addition, later in the call, the staff member said: "… perhaps even exploring - you mentioned a bit earlier how there's - you - I think you said something like, I've got a thing about intimacy and stuff around that… kind of stuff…" [The portion in bold will be referred to as the third statement.]
18. The trial judge indicated that she did not think that the third statement necessarily transgressed s 293 of the Criminal Procedure Act since intimacy could refer to emotional intimacy.
19. The trial judge noted the jury did not have transcripts of the two calls, and it was determined that the exhibit (the disc from which the audio recordings were played) would be uplifted and edited to remove the two passages and the trial judge would give a direction to the jury. Defence counsel said that he considered the third statement to have no probative value.
20. The trial judge suggested that one way to address the issue was to excise the statements and say to the jury, inter alia, that there was something said on the basis of issues with intimacy, and that that way, both statements would come out. Both the Crown and defence counsel agreed. Her Honour indicated the proposed wording of a direction, which defence counsel said he considered was very thorough.
21. On Monday 22 November 2021, in the absence of the jury, the trial judge raised the proposed direction that had been discussed on Friday 19 November 2021 and confirmed that it was suitable to the parties. In the presence of the jury, the trial judge gave the following direction: "When I listened to the disc on Friday concerning the two calls made by [the complainant] to the 1800RESPECT line, that's exhibit J, it occurred to me that there was a reference to something that cannot logically assist you with any determination in this case. It was a reference to matters concerned with issues of intimacy. Ladies and gentlemen, I have asked the lawyers to remove that from the disc as it should not be in the evidence in circumstances where it simply bears no connection at all with the issues in this case. So, any reference in that regard to issues with intimacy, that's not relevant and it's not part of the evidence and please exclude that from your minds. Bearing that in mind Mr Crown is now going to ask that the transcript of those calls will be handed to you and for those of you who remember the evidence on Friday those aspects that I've said cannot assist you have simply been removed because they're not part of the evidence. All right, thank you, the transcript will now be handed out to you."
22. Edited transcripts of the two calls were provided to the jury.

Ground 4: alleged miscarriage from the admission into evidence that the complainant had "complex things around sex because of what happened in the past" and (according to the counsellor) "[difficulties] with intimacy"

1. The way in which the evidence of the phone calls was adduced and the errors in the recordings and the transcripts have been set out at length above. The impugned evidence and the context in which it came, or might have come, before the jury can be summarised as follows: 1. The jury received transcripts that contained the first statement ('I have called before but it was about something different, a while ago'). Those transcripts were recalled before the playing of the audio recording reached this statement. Accordingly, the jury did not hear this statement played. 2. The jury heard the second statement ('I just - I have all these complex things around sex because of what happened in the past. I suppose he didn't know that and he still did those things so [unclear]') but, at the time the jury heard it, it did not have a transcript of the call. 3. The jury heard the third statement (when the counsellor said, 'you - I think said something like, I've got a thing about intimacy and stuff around that') but, at the time the jury heard it, it did not have a transcript of the call.
2. The transcripts subsequently provided to the jury did not contain any of the three statements.
3. Mr Carroll submitted that the jury would have inferred from the fact that 1800RESPECT was a sexual assault help line that the only reason the complainant had called the helpline "before" (in the first statement) was that she had previously been sexually assaulted. He said that the second and third statements would fortify this inference. Mr Carroll contended that if the jury knew that the complainant had complex issues about sex and intimacy because of her past experience of being sexually assaulted, this would make it less likely that the jury would accept the applicant's evidence that the complainant acted in the manner he described (enthusiastic about sexual acts in a toilet cubicle in a night club with someone whom she had just encountered on the dance floor). Thus, he submitted that the admission of this evidence was highly prejudicial to the applicant.
4. The first difficulty with this submission is that it would, in my view, be unrealistic to assume that the jury, who had been directed to listen to an audio recording and who had been provided with a transcript, would read ahead to the first statement, which was never played to the jury. Secondly, in the unlikely event that one or more jurors did so, it cannot be assumed that the juror or jurors would infer from the first statement that the complainant had called the helpline because she herself had been sexually assaulted (since this is not what she said); or that she had "complex things around sex" (as she put it in the second statement) because she had been sexually assaulted; or that the counsellor considered that she had issues with intimacy (as the counsellor put it in the third statement) because she had previously been sexually assaulted. While it is possible to speculate from these statements that the complainant had previously been sexually assaulted, this is by no means a reasonable, or the only, inference.
5. It is always a question of judgment whether it is better to highlight something and direct the jury to disregard it or to remove it from the evidence and direct the jury to rely only on what is in the audio recording as reflected in the transcript. The trial judge consulted the parties on which course to adopt. The parties agreed with the approach taken by her Honour. The risk of prejudice arising from the first statement was almost non-existent. The risk of prejudice from the second statement was relatively low. The risk of prejudice from the third statement was also almost non-existent because, as the trial judge pointed out, "intimacy" is not synonymous with sexual experience. I do not consider that the jury's verdict could have been affected by the way the three statements came before the jury, particularly having regard to the trial judge's timely remedial directions.

Ground 5: alleged irregularities in the evidence and submissions

Ground 5a: the admission into evidence of the second and third statements and the alleged inadequate direction

1. Ground 5a overlaps with ground 4 which has been considered and rejected above.

Ground 5b: alleged admission into evidence of the investigating police officers' opinions in the applicant's ERISP

The background to the trial judge's direction regarding the police officers' opinions expressed in the applicant's ERISP

1. In order to address this ground, it is necessary to set out the background to the direction which the trial judge gave in respect of opinions expressed by investigating police officers in the applicant's ERISP.
2. The applicant was interviewed by police on 30 June 2020 through an interpreter. The applicant's ERISP was played to the jury on 23 November 2021 and the jury was provided with a transcript. After part of the ERISP was played, the applicant's trial counsel asked the trial judge to direct the jury that neither the applicant nor the officer in charge were experts on human behaviour, and what they said about how people respond in certain situations relating to sexual assault should not be taken into account by the jury as expert opinions. The trial judge outlined a direction which she proposed to give to the jury when it returned, with which the applicant's trial counsel agreed. Her Honour also foreshadowed that she would give a direction about resistance and lack of resistance in the summing up.
3. When the jury returned, the trial judge directed them as follows: "… In the community we can all have a different understanding of what a sexual assault means. Please bear in mind that, for example, in this interview the accused speaks from an understanding of what a sexual assault allegation is. The police officer is obviously explaining what the police officer understands to be involved in the allegation and what might be or might not be required for a sexual assault allegation to be made out. … just bear in mind that this interview is not relied upon for you to understand what is needed for a sexual assault allegation to be made out. Instead, it's an opportunity for the police officer to put the allegation or allegations to the accused and for the accused, if he wishes, even though he has a right to silence, if he wishes, to give a response to that and for you to hear his account. … neither the Crown nor Mr Yeh on behalf of the accused put forward the police officer or the accused as any expert on human behaviour. That's not what's happening in this evidence."

Consideration of ground 5b

1. The portions of the applicant's ERISP which are the subject of ground 5b are set out in [147] of the applicant's written submissions. The whole ERISP was played to the jury as part of the Crown case without objection from the applicant. In order to appreciate the gravamen the statements which are the subject of this ground, it is necessary to view the police officers' statements in context and address them in turn.

Q63

1. This statement/question was as follows: "Q63 Ok. Every person reacts to sexual assault differently. She does not have to report it straightaway because sexual assault affects mental health, and everybody reacts differently. That's just some basic information about reporting sexual assaults. Some people report straightaway, some people wait years and report it. Ok. From her, from her report, do you want to say anything else?"
2. The police officer's statement in Q63 was in response to the applicant saying that it was not sexual assault because the complainant did not report it to the Stonewall Hotel that evening.

Q105

1. This statement was as follows: "Q105 Again, that's opinion. You're trying to, you're trying to say that someone should behave a certain way, it's not the case, everyone's different."
2. The statement in Q105 was in response to questions asked of the applicant about how his semen came to be found on a high vaginal swab of the complainant, to which he answered that it was not possible to get sexual gratification (ejaculation) in 30 seconds (being the time period nominated by the complainant for the sexual intercourse). He said, in answer to the question immediately preceding the comment at Q105 that the complainant could have called out for help and everyone would have heard her.

Q116

1. This statement was as follows: "Q116 Your opinion is your opinion but your opinion is false. People freeze, victim's freeze all the time and have no power to fight back. The fear takes over them so much that is has been proven that quite often, very commonly, victim's freeze in the moment of fear and do not know what to do and they just freeze."
2. Immediately prior to the police officer's comment at Q116, the applicant had told police that it was not possible that the complainant would have frozen with fear because there was neither violence nor aggression.

Q127

1. This statement was as follows: "Q127 However, she says this happened without her consent. And regardless of your, regardless of your opinion of how a person should react everyone reacts differently."
2. The police officer's comment at Q127 was preceded by a long answer given by the applicant as follows: "No matter how a person, how much he's drink what I'm saying first of all I don't know how old this lady is but what I am saying if you are above the age of consent that you are about 18 you can't just drag somebody's trousers or pants, you know, pull it down and there's no sign of resistance or nothing has been done. I do not accept this assumption or proposition. Yeah, he said, what I'm saying had it been sexual contact it has been mutual and it has been done with each other consent. The way you demonstrated in this interview 30 second there, 30 second there, putting down her head, it's about two, 3 minutes ... two, 3 minutes not yelling or not asking for help, even up to 5 minutes. Within 5 minutes she has not alerted the others? You know as I told you there are people in queue to get to the toilet, male or female, three to 5 minutes or whatever, you are in queue you can hear somebody moaning or doing some sort of sexual thing and people they don't hear? So what doesn't make sense, you know, male toilet, males are more hefty and more stronger and the people who queue up, what do you say that I'm assaulted or had a sexual assault and I have taken her to the male toilet, where there is a male and this doesn't, she has not resisted, she has done nothing about it. She has gone to a male toilet and didn't show any resistance, didn't react or anything. I will not accept this proposition, Sir."

Q200

1. This question was as follows: "Q200 Ok. So just because you went to the cubicle you believe you, the intention was clear to have sex?"
2. The question at Q200, which appears to have been intended to clarify the applicant's earlier answer that the complainant must have consented to sexual intercourse because she went to the cubicle with him. Q200 elicited the following answer from the applicant: "I said, but there was consent to have sex together. That's what I'm saying. Yeah I can't remember just where there is a hypothetical can I have a look at her picture, please, her photo, please?"

Q209

1. This statement was as follows: "Q209 Just because you take someone to a cubicle doesn't mean you can have sex with them though."
2. This comment was preceded by the following exchange: "Q206 OK. But at the beginning of the interview you only said you've had sex in a cubicle once. A I don't remember when l said when you put this question to me, I said there's a probability I've had another but I can't remember the place. Q207 A probability? A Yeah. You see when you go to a cubicle or something ..... men and women, you know, the next day you will not remember, you know, what you have done. … Because you are drunk."

Q217, Q218 and Q219

1. These statements were as follows: Q217 That, it does, it does not mean you have consent to have sex. Ok. Just because she was there she was not a willing participant to have sex with you and did not give you consent. … Q218 She doesn't have to say anything. … Q219 ... She doesn't have to say no, she's tried to leave twice. Therefore, consent is gone. What does he have to say about that? …"
2. The comments at Q217, Q218 and Q219 follow from the applicant's argument (put in answer to questions) that the complainant consented to sexual intercourse by dancing with him and going to the cubicle with him.
3. When the ERISP is listened to as a whole (and the transcript read, as an aide-memoire), it is plain that the police officers were trying to put the complainant's version to the applicant to elicit his response. The applicant responded, in the main, non-responsively and argumentatively, which produced some of the police responses set out above. It was incumbent on the police officers to put these matters to the applicant as a matter of fairness. The trial judge's direction was adequate to direct the jury that they could not use the statements by police officers as expert opinion evidence as to what constituted sexual assault.
4. Further, the applicant's trial counsel made forensic use of the ERISP in closing address and relied on the answers given by the applicant which he contended demonstrated his understanding of "no" in the context of sexual intercourse.
5. I am not persuaded that the admission of these statements, in light of the direction given by the trial judge as to their use, resulted in any error or irregularity in the applicant's trial.

Ground 5c: alleged wrongful admission of inadmissible opinion evidence from sexual assault counsellors during the two 1800RESPECT calls

1. Mr Carroll accepted that the trial judge had directed the jury that it could not use the statements made by counsellors as expert opinion evidence but nonetheless contended that the trial judge ought to have excluded the evidence of their statements entirely. The way in which the issue was addressed has been set out above in the context of the background to ground 4. It is plain from the recitation of the background that the trial judge was alive to the risk of potential prejudice and anxious to ameliorate it while preserving the applicant's opportunity to use the comments for his own forensic advantage.
2. The applicant's trial counsel had foreshadowed the case which was eventually put: namely, that the complainant did not consider what had happened at the Stonewall Hotel to amount to sexual assault until she was, in effect, coached by the sexual assault counsellors at 1800RESPECT, who took advantage of her suggestibility by putting words into her mouth, which became her complaint to police and, eventually, her evidence at the trial. This aspect of the applicant's case was founded on the discussions between the complainant and the counsellors about what had occurred and what it amounted to (and explains why the applicant's trial counsel wanted these discussions to be in evidence).
3. The applicant's trial counsel put this case to the complainant in cross-examination and suggested: 1. that her description of "freezing" during the sexual assault was something which a counsellor had suggested to her in one of the 1800RESPECT calls (which she denied); 2. that she did not consider that she had been sexually assaulted until she spoke to counsellors at 1800RESPECT on 20 May 2019; 3. that she did not think that she had been sexually assaulted when she spoke to others about what had happened at the Stonewall Hotel; and 4. that when she spoke to police on 27 May 2019, she was still uncertain about whether she had been sexually assaulted.
4. The applicant's trial counsel said in closing address: "She called the 1800RESPECT line the following day. The staff member on the hotline effectively tells her what to think. If you listen to the call and look at the two transcripts as an aide memoire, you can see that the staff member basically tells her, in the act of counselling in order to counsel her, that she was sexually assaulted, after being told very little by the complainant. The staff member then tells her that's sexual assault. The staff member says that he might be doing it to other women. That appears to fortify her. She informs her of situations where women have been plied with alcohol prior to being raped. That's different from this. She was never plied with alcohol. … It seems from the call that whatever work - Nellie, being the first person she speaks to - has done in persuading her has become unwound. Julia asks her what is the biggest cause for her guilt. She says to Julia in clear, coherent, articulate terms, that she worries that it was not sexual assault. If she has these concerns, why would you entertain the proposition that she was sexually assaulted?"
5. The case which the applicant wished to put carried with it some risk. By insisting on, or concurring with, the admission of the 1800RESPECT audio recordings and associated transcripts (subject to the errors which are the subject of ground 4), the applicant's trial counsel was putting before the jury the views of the counsellors who spoke to the complainant when she was reporting what had happened. It was a necessary part of the applicant's case that he did so since that evidence was an integral part of the applicant's case that the complainant had been actively persuaded by the counsellors that what happened was sexual assault, when that was not the complainant's assessment of the situation. The applicant's trial counsel's extensive reliance on these recordings plainly arose out of considered forensic decisions which he made in order to advance the applicant's interests. These were rational decisions which had at least the potential to advance the applicant's case in the best manner reasonably available.
6. I am not persuaded that the admission of the opinions of the counsellors, in light of the direction given by the trial judge, amounted to an error or irregularity in the applicant's trial.

Ground 5d: questioning as to whether the applicant was homosexual

1. As set out above, the prosecutor asked the applicant whether he was homosexual. The question was rejected when objection was taken and the direction set out above immediately given to the jury.
2. I understood Mr Carroll to submit that the prosecutor's question was gratuitous and so prejudicial that even its immediate rejection and the judge's direction were insufficient to cure any prejudice. He also submitted: "A substantial part of the cross-examination of the applicant, was directed towards the applicant's reason for attending the Stonewall Hotel and challenging the applicant's account that he attended for the purpose of dancing and the possibility of meeting friends. It also would not have been lost on the Crown and the immediate concern of the complainant the following morning was that she may have acquired AIDS through having unprotected sex with a stranger in a club aligned with gay culture."
3. One of the difficulties with Mr Carroll's submission is that it was accepted that the applicant, a male, had had (hetero)sexual intercourse with the complainant, a female, in a male cubicle of a gay nightclub. In these circumstances, the inference was available that the applicant had gone to the Stonewall Hotel to have sexual intercourse with a woman who had attended a gay night club, believing that she was relatively safe because the usual attendees of such a club would be gay men (and therefore not sexually attracted to her). By taking her to the cubicle of the male toilets, he was taking her to a location where sexual intercourse (between gay men) could be expected to take place. Thus, far from suggesting that the applicant was homosexual, the inference, based on the surrounding circumstances, was to the contrary and was, to an extent, established by his preference in having sex with the complainant rather than any one of the men on the dance floor who may have attended the venue, and been available to the applicant, for the purposes of sex.
4. In this context, the question was not gratuitous. However, in my view, the asking of the question did not add to the inference, which arose from the evidence in any event. The trial judge's direction was, in any event, given promptly and was more than sufficient to address any homophobic prejudice which the jury may have otherwise allowed to affect its decision-making.
5. The question was objected to and the direction was accepted to be sufficient by the applicant's trial counsel. No discharge of the jury was sought. Nor was any such application warranted. I do not consider that there was any risk of a miscarriage of justice as a consequence of the prosecutor asking this question, particularly as the question was immediately objected to, rejected and the subject of a direction.

Ground 5e: alleged tendency reasoning advanced by the prosecutor in closing address

1. As set out above, the prosecutor in closing address implied that the applicant had a tendency to go to nightclubs for the purpose of sexual intercourse. The words used in the address which could be seen as an invitation to engage in tendency reasoning are highlighted in the extract above. What made the portion of the closing address amount to such an invitation was the reference to the applicant having had sex there the previous week and the words, "[t]his is a man who thinks he can go to … a nightclub … to have sexual intercourse."
2. The trial judge immediately directed the jury that they were not to engage in tendency reasoning. Her Honour gave an anti-tendency direction in a relatively standard form. No application for discharge was made. I am not persuaded that any miscarriage of justice arose as a result of this aspect of the prosecutor's closing address, having regard to the way in which the trial judge addressed it.

The alleged cumulative effect of the irregularities alleged in ground 5

1. Mr Carroll submitted that, when all the (alleged) irregularities in ground 5 are considered cumulatively, a substantial miscarriage of justice has been occasioned and that this Court ought quash the applicant's convictions. It will be evident from my reasons that I do not consider any of the matters which comprised the grounds, all of which were the subject of timely directions given by the trial judge, had any effect on the fairness of the applicant's trial or could reasonably be supposed to have had any effect on the verdicts returned by the jury. I am unpersuaded that any of these matters caused the applicant to lose a real chance of acquittal: Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 at [32] (Bellew J, Hoeben CJ at CL and Hidden AJ agreeing).

Leave

1. As referred to above, all grounds require leave pursuant to r 4.15 of the Rules as the applicant's trial counsel endorsed the approach taken by the trial judge. Because of the detailed consideration which all grounds have received, and to ensure finality, I propose that leave under r 4.15 and leave to appeal be granted.

Proposed orders

1. For the reasons given above, I propose the following orders: 1. Grant leave to the applicant pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). 2. Grant leave to appeal. 3. Dismiss the appeal.
2. HARRISON J: I have had the significant advantage of reading in draft the detailed reasons of Adamson JA with which I agree.
3. WEINSTEIN J: I agree with Adamson JA and the orders proposed by her Honour.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2023