Prasad v R

Prasad v R - [2020] NSWCCA 349 - NSWCCA 2020 case summary — Zoe

[3]

Judgment

MACFARLAN JA: At the conclusion of a judge-alone trial in the District Court in October 2018, the trial judge convicted the appellant, Mr Allen Prasad, of offences charged in Counts 2, 3, 4 and 5 of the indictment presented against him. He was found not guilty of the offence charged in the first Count.
The charges, which were all under s 61J(1) of the Crimes Act 1900 (NSW) (except Count 4, which was under both ss 61J(1) and 61P of the Crimes Act), were as follows: Count 1: That on 2 May 2017, the appellant had sexual intercourse with the complainant without her consent, knowing that she was not consenting, and in circumstances of aggravation, namely, at the time, the complainant had a cognitive impairment. The intercourse was alleged to be penile/vaginal penetration. Count 2: That he committed the same offence on 4 May 2017. Again, penile/vaginal penetration was alleged. Count 3: That he committed the same offence on the same occasion as alleged in Count 2, with the intercourse alleged to have been penile/anal penetration. Count 4: That on 11 May 2017 he attempted to commit the same offence, the intercourse alleged to have been an attempt to force performance of fellatio on the appellant. Count 5: That on 11 May 2017 the appellant committed the same offence as alleged in Count 1, penile/vaginal penetration being alleged.
The complainant in respect of each Count was a cognitively impaired 61-year old woman who lived alone. She also suffered from a number of physical impairments including morbid obesity. She was restricted in her mobility and required the attendance of carers to assist with her personal care. She died on 24 July 2018, prior to the appellant's trial, from causes unrelated to the charges against the appellant.
On 17 May 2017 (that is, shortly after the commission of the alleged offences) police video-recorded an interview with the complainant (referred to as the "17 May 2017 interview" or the "first interview"). They recorded a further interview about 2 months later, on 25 July 2017 ("the second interview").
The appellant was a friend of a neighbour of the complainant, Mr Michael Davis, who lived in the same apartment block as the complainant.
On 4 February 2019 the trial judge sentenced the appellant to an aggregate sentence of 15 years and 6 months imprisonment, with a non-parole period of 11 years and 6 months, specifying indicative sentences as follows: Count 2: imprisonment for 9 years with a non-parole period of 6 years 6 months. Count 3: imprisonment for 10 years with a non-parole period of 7 years 6 months. Count 4: imprisonment for 8 years with a non-parole period of 6 years. Count 5: imprisonment for 9 years with a non-parole period of 6 years 6 months.
The complainant having died prior to the trial, the Crown sought to prove its case against the appellant largely by the tender of evidence of representations made by the complainant in the 17 May 2017 interview, relying on s 65 of the Evidence Act 1995 (NSW). Appeal Grounds 1 to 4 allege error in the trial judge's admission of that evidence, Ground 5 contends that the verdicts of guilty were unreasonable and Grounds 6 and 7 concern the appellant's sentence. The Grounds are as follows: 1. The trial judge misapplied s 65 and the High Court decision in Sio v R (2016) 259 CLR 47; [2016] HCA 32. 2. In considering s 65, the trial judge erred in determining the "circumstances" in which relevant representations were made. 3. The trial judge erred in admitting into evidence, or in the alternative by failing to refuse under s 137 of the Evidence Act to admit, the video recording of the complainant's police interview which took place on 17 May 2017. 4. The trial judge erred in taking into account an irrelevant consideration in declining to refuse under s 137 of the Evidence Act to admit the recording of the interview. 5. The verdicts in relation to Counts 2, 3, 4 and 5 are unreasonable and cannot be supported having regard to the evidence. The following Grounds relate to the sentence imposed on the appellant: 1. The sentencing judge erred by determining that the offences were planned and/or were targeted because of the victim's vulnerability. 2. The sentence imposed is manifestly excessive.

[5]

THE EVIDENCE ON THE VOIR DIRE AND AT TRIAL

The admissibility of evidence of representations made by the complainant in the 17 May 2017 interview was argued and determined on a voir dire conducted soon after the commencement of the trial.
The evidence adduced on the voir dire was extensive. It included the records of the complainant's interviews, the records of an electronically recorded interview with the appellant on 18 May 2017 ("ERISP"), as well as statements of carers and others, and limited oral evidence. The voir dire evidence was subsequently tendered at the trial proper. Additional oral evidence was also adduced at the trial.
Except where evidence is described as being evidence at the trial, the evidence referred to below was before the Court both on the voir dire and at trial.
Before referring to the evidence concerning the individual Counts in the indictment, I note that at the trial Professor Susan Hayes, a forensic psychologist, gave oral evidence as follows: "Q: Professor, in terms of given the cognitive impairment of the deceased [the complainant], her ability to formulate an idea that she did not want to participate in something and physically react, is that something that she could do? A: She could certainly formulate that she didn't want to participate, but then the next step is being able to put that plan into action, and the - the options which were available to her were limited by her cognitive impairment to some extent, the speed at which she could reason and by her physical incapacity."
In cross examination Professor Hayes gave the following evidence when asked about the complainant's ability to consent to sexual intercourse: "A: I think she would have had the capacity to consent, you know, in general. She knew the difference between consenting and non-consenting, so if she had been in a situation where she wanted to have sexual intercourse I think that she could have formed a free and voluntary consent."
Opinions expressed by Professor Hayes in a report dated 4 December 2017, which was in evidence both on the voir dire and at trial, were consistent with these views. Professor Hayes described the complainant as having a "borderline-mild intellectual disability", with "deficits in her executive ability, that is, the ability to formulate a plan and execute it", but did not expressly address whether the complainant had the ability to consent to sexual intercourse.

[6]

The complainant's 17 May 2017 interview

The complainant said that at about 8pm on Tuesday 2 May 2017 Mr Davis, who as earlier noted lived in the same apartment block as she did, invited her to come to his apartment. When she did, the appellant was present. She had not met him before. He offered her a beer. She drank it, despite telling the appellant that she did not drink. After about half an hour, Mr Davis left the apartment saying that he was going to obtain some more alcohol.
The complainant said in her interview that the appellant then encouraged her to continue drinking and said "come forward on the lounge and spread your legs". The complainant said in the interview "and I just, did it, 'cause I, um, I just, I, I don't know what I thought I was, going to happen until he…". She also said "… I just did it, only because, I don't know why, I was thinking, unless it was the beer that was, see as I said, I don't drink…".
The complainant said that she was "quite horrified" when the appellant took his erect penis out of his pants. She said to the appellant, "you don't have to do this" and in her interview said "I just did what he, I think I was a bit tipsy, by then". She said that the appellant then "had sex" with her, during which she said to him "you're hurting me", in response to which the appellant did not say anything.
When Mr Davis came back, he asked the appellant if he "got it off" with the complainant, to which the appellant responded "yes". He and the appellant then helped the complainant up and she went back to her unit.
Prior to the police interview of the complainant on 17 May 2017, the complainant's sister, Ms Colleen Johnson, assisted the complainant to prepare for the interview by making notes of the complainant's description of what occurred on the relevant occasions. They were in evidence on the voir dire and at trial. The notes concerning the evening of 2 May 2017 are consistent with what the complainant said in her interview save that they do not refer to a complaint by the complainant to the appellant about him hurting her.
The same comments are applicable to undated handwritten notes of the complainant given by her to police on 25 July 2017. However in them she says that when Mr Davis returned he asked what had happened to her lips, to which she said "he kept biting me. I had actual bite marks on my top lip [which] was very swollen and my neck was bruised". She said that when she returned to her apartment she was "feeling very sore, from being bitten". There is no express reference in them to a lack of consent. Instead the complainant emphasises the effect of the alcohol on her: "I had a swig, which was really potent", "I had a head spin", "my head [was] still spinning" and as she left she was "still feeling dizzy".

[11]

The complainant's 17 May 2017 interview

The complainant said that on the evening of Thursday 4 May 2017, the appellant knocked continuously on the door of her apartment and that she let him in because she did not want to disturb the neighbours. He said to her "put something sexy on" and then "clean your pussy". The complainant said that she was wearing a nightie and a dressing gown when she answered the door.
The complainant said that the appellant told her to go to the bedroom and lie down and that she complied. The complainant said that the appellant "pushed my legs right up, over my head. That's what he did. And then [we] had, was it, vaginal sex". She said in the interview that while that was occurring she said to the appellant "Can you stop doing that", and then the appellant then pushed her onto her face, pressing her head into the mattress, and then had anal intercourse with her. She said that when that was happening she was saying "no, stop doing it" but the appellant kept pressing her head further into the bed. She kept trying to pull the appellant off her. She described it as "the most painful thing".
The complainant said that she still had bruises from the incident on her arms at the time of the police interview and that photographs of them had been taken the previous day (16 May 2017). She confirmed that the appellant had both his hands around her arms or shoulders and was holding her down on the bed and that the appellant did not stop when she told him to. This evidence did not relate to Count 2 as the complainant said that the appellant was holding her legs up high for Count 2. The appellant was not holding her shoulders at that time. During the anal intercourse, the appellant was holding the complainant's arms - she thought that "my arms were gunna break".
She said that she bled all night and that early the next morning (5 May 2017) she sent a text to Mr Davis saying that she had been bleeding all night. He then came to her apartment and she told him what had happened. He said that whatever happened had to be kept between the three of them [Mr Davis, the complainant and the appellant].
The complainant said that a carer came to help her shower on Friday morning 5 May 2017 but nothing was said about what had occurred the night before. When on the next morning (Saturday) the carer asked about bruises on the complainant's body, the complainant said, "I knocked myself, or something", because she was embarrassed. When another carer, Ms Margaret Anderson, came on Sunday morning (7 May 2017) she asked "what have you done to your bottom" to which the complainant replied "I think I was raped". Ms Anderson then said "you've got so many bruises. Um, did he bite you" to which the complainant replied "no, he held me down that tight, I [couldn't] get off… he did it at my anal passage". Ms Anderson then said "that's rape". When Ms Anderson said that the incident would have to be reported, the complainant asked her not to and Ms Anderson said "we'll just keep it between us two". The complainant did not tell Ms Anderson about what had happened on Tuesday 2 May, just what had happened on Thursday 4 May. The complainant also said that Ms Anderson saw her bottom and said that "there was a couple of tears".
The notes made by the complainant's sister on 17 May 2017 generally accord with the above descriptions. The notes refer to both vaginal and anal sex having occurred. They do not refer to an absence of the complainant's consent. They say that the complainant texted Mr Davis early in the morning on 5 May 2017 "because bleeding" and the text read "Please do not send Allan back".
The undated handwritten notes made by the complainant also generally accord with the above descriptions although they do not mention any vaginal intercourse on 4 May 2017 and they contain a more detailed description as follows of the alleged anal penetration on that day: "He said get in the bedroom, get on your hands and knees, and I said, what are you doing, he said I want fuck you in your anus, I said no! I said my knee will not hold me, I kept saying No!! He pushed me face down on the mattress he then proceeded. I was yelling NO NO! He put his penis in my back passage. He was hurting me, he then pushed my head into the mattress, then put his hands around my neck, while I still protesting."
The complainant said in the handwritten notes that she then found that she was bleeding and bled all night. When she spoke to Mr Davis the next day, he said "I hope you have not told anybody" to which the complainant replied that she had told "Kristine, Margaret from Australian Unity, and Rowena from [indecipherable]".

[15]

Ms Giselle Beaumont

In her statement in evidence on the voir dire Ms Giselle Beaumont stated that from January 2017 she took the role on behalf of Mission Australia of primary support facilitator for the complainant. She said that on Monday 15 May 2017 she read an email from the complainant's sister, Ms Colleen Johnson, in which Ms Johnson expressed concern in relation to the complainant. Ms Beaumont picked the complainant up the next day on 16 May 2017 to drive her to an earlier scheduled appointment for the complainant to see Dr Sanaa Labib, a general practitioner. Ms Beaumont said that during the drive the complainant "disclosed to me she felt she had been raped, however she was confused and nervous regarding if she had done something wrong herself and whether she would get in trouble." The complainant repeatedly requested that Ms Beaumont not tell Ms Johnson.
Ms Beaumont said that the complainant went on to tell her that: "Michael, the man upstairs, invited his friend Allen to [the complainant's] unit. [The complainant] told me that the man named 'Allen' was from Fiji and that his mother was sponsoring him to stay in Australia. [The complainant] then told me that the man 'Allen' had gone up her back passage, that he'd 'really hurt' and that she was bleeding for some days afterwards".
The complainant said that "Allen" had used his penis to penetrate her anus, that the incident had happened about two weeks ago and that she had told "Allen" that "she did not wish to have sex".
Ms Beaumont was present when, after the doctor's appointment, the complainant told Ms Johnson "about her assault". Ms Beaumont said that the complainant "did not go into the level of detail" that she had with Ms Beaumont.
Later that afternoon Ms Beaumont attended Blacktown Police Station with the complainant. An interview with police was arranged for the next day. Ms Beaumont then took the complainant to the local hospital. Ms Beaumont saw that the complainant had bruising to both her upper arms which, when she looked closely, she could see were "small round bruises similar to the size of fingers on both arms".
In her oral evidence in chief on the voir dire, Ms Beaumont was asked what the complainant told her "exactly when she used the words, 'rape'". Ms Beaumont replied that the complainant "said that she was raped, and then she said, 'I think I was raped. I don't know'." Ms Beaumont continued: "And I questioned her around the rape, as in, 'Did - did you - you know - have sex? And was it consensual?' She said she had sex, and she said that - she said, 'no', she didn't want to have sex with the man."
The examination continued: "Q. Did she tell you that she told Allen she didn't want to have sex? A: Yes. And that's - yeah. That's when she was - she said to me that that really hurt. She was bleeding, and she was bleeding for a few days, and she was quite distressed over that."
Ms Beaumont said that the complainant kept repeating "don't tell Colleen" and that the complainant was "frightened of Colleen, and her judgements of Colleen".

[17]

The complainant's 17 May 2017 interview

The complainant said that on Monday 8 May 2017 she fell out of bed when she was doing exercises on the bed. She fell on bricks near her bed (apparently a windowsill) and called an ambulance. When the ambulance came, she refused to go to hospital but instead went to her GP. (It was later found that she had broken her sternum).
The complainant said that on the evening of Thursday 11 May 2017 the appellant invited her to come up to Mr Davis' apartment because they had something to tell her. When she arrived, they gave her beer and cigarettes and Mr Davis said that "whatever happens between us here and downstairs happens between us" and asked her whether she would consider marrying the appellant "[t]o stay in the country".
The complainant then said that she had to go back to her apartment because her chest was hurting, that the appellant and Mr Davis followed her down and that they came in and had a few beers. Mr Davis left after about half an hour and then the appellant said "clean your pussy, get on the bed, and spread your legs". The complainant then got onto the bed and the appellant "was standing beside the bed, and held my head, and pulled it towards his penis" to "make me try to have oral sex, but I said, No". He kept pressing her head down and she said "No, I don't want to do this". He then had vaginal sex with her and "he was a bit violent". She said "he knew I had a broken sternum. I told him and I said, please don't press hard on my chest". The complainant said "please do not do this, you're hurting me. … You have to stop doing it" and then "he finally gave in" because he ejaculated. The complainant said that before he had sex with her she said to him "Get off me".
The complainant said that on the afternoon of Saturday 13 May 2017, the appellant and Mr Davis came to her apartment with a third person. She said that they wanted her Eftpos card, which they took and attempted to use, unsuccessfully, to take money out of her account.
The notes that Ms Johnson took on 17 May 2017 of the complainant's complaints generally accord with the descriptions given by the complainant in the interview, as set out above. The references to the acts the subject of Counts 4 and 5 are as follows: "8th - fall - ambulance 11th May: - Allan invited to Michaels apartment - Said they had to tell you something - Had more beer, cigaretts - Michael then said whatever happens here or downstairs stays between us three + make sure you don't tell anyone - Would you consider marrying Allan. Went downstairs Michael + Allan came in with beer. Michael stayed for half an hour, then left. Allan said 'clean your pussy, get on the bed + spread your legs'. He stood beside the bed + held your head & pulled it towards his penis + said don't you want to do this? Vaginal sex - because he couldn't get it in he asked do [you] have another pillow. Pushed his head on your sternum."
The complainant's undated handwritten notes arguably imply that sexual acts took place on 11 May 2017 (they say, "And the last time was on the 11th May 2017 when he had come over…") but the acts are not expressly referred to. The notes also imply a lack of consent on that occasion as they say, "I had a broken sternum and I said no to the third" (apparently a reference to what occurred on 11 May 2017).

[20]

Dr Sanaa Labib

Dr Labib's notes of her consultation with the complainant on 16 May 2017 include the following: "Had a fall at home on 9/5 and hit her chest … She stated that she was raped on 4/5, he pushed her to bed and practised anal sex. She also stated that he came back for sex a week later. She is confused when i asked her if it was consented or not 4cm bruise on L. arm, when he was pushing her on the bed Red area between buttocks, no bruising 2-3 mm of superficial excoriation about 6 o'clock … area of bruising top half of sternum."
A referral signed by Dr Labib on 16 May 2017 has noted on it, in Dr Labib's handwriting, that the complainant "stated on 16/5 that she was raped on 9/5 2017". In oral evidence, Dr Labib stated that the date of the alleged rape that she noted was a slip and should have been a reference to 4/5/17.
Dr Labib's oral evidence in chief at the trial included the following: "Q: But if I can just take you now to where she told you that she was raped on 4 May. A. Yes. Q. He pushed her to bed and practised anal sex? A. Yes. Q. She also stated that he came back for sex a week later. Did she give you any more information or was that just what she told you? A. I was confused myself at this stage, and I spent quite a bit of time, and I mentioned it [to] her sister later, because I tried to ascertain from her whether that was consented sex or not. And I tried to rephrase it in many different ways for Margaret: 'Did you want to or did he force you? Did you both agree to it or not?' And she was really confused. And that's why I mentioned it to her sister, because he's - she - later she's her carer, when I saw her sister with her. And she said, 'Margaret is always eager to please because of her mental disability.' … On the first incident, on 4 May, she did tell [me] that he came to her place, he pushed her to the bed, and he practiced anal sex. So there was no confusion that she was forced into that. When he came back a week later, her words were - was, 'He came back for sex.' And I said, 'Margaret, did you consent to that?' She just looked at me. And I said, 'Margaret, did you want to have sex with him? Or did you not want to have sex with him?' And her words were, 'I am not sure.'"
Dr Labib said that the "red area between the buttocks" that she observed was not in her view "significant one way or another" as the complainant was "a big lady, susceptible to sort of fungal infection and redness in the skin folds". Dr Labib also said that the 2-3mm "superficial excoriation" she observed was "in the anal sphincter" and "anal sex can produce some trauma to the skin", although it could also have been caused by other things such as hard rubbing with toilet paper. Dr Labib assumed that the area of bruising that she saw on the top half of the complainant's sternum was related to the complainant's fall on 9 May 2017.

[24]

The trial judge's ruling on the admissibility of the 17 May 2017 interview

The trial judge noted at the outset that the parties accepted that the admissibility of the complainant's 25 July 2017 interview would be determined by the ruling in respect of the first interview and that, if the first interview was admitted, the appellant in fact wished the second interview to be admitted also. Further, in a ruling that is not challenged on appeal, his Honour found that if the 17 May 2017 interview was to be admitted, it could only be under paragraph (c) of s 65(2).
His Honour prefaced his reasoning concerning s 65 with the following observation: "It is said in the authorities that a global approach to admissibility under s 65 is impermissible. But the way the matter was dealt with by the parties, and in particular by the accused, was to refer to the overall admissibility of the interview, but by way of examples in it which were said to lead to inadmissibility. That is how I shall deal with the argument".
Having referred to Ms Johnson's notes to which the complainant had had reference in the course of the first interview, and observing that by doing this the complainant was "simply reminding herself of what she had already said", his Honour said: "In those circumstances, I do not think that reference to the notes by the complainant detracts from the proposition that it is highly probable that the representations in the interview were reliable. I think in fact that as a positive matter they were highly probably reliable, because whilst I do not think the representations fall within s 65(2)(b), they nevertheless were made at a time fairly shortly after the events described, in circumstances where a cognitively impaired person was doing the best she could to explain what she said occurred to her at the hands of the accused in acts which, if true, would have been extremely upsetting for her and which would have stood out in her memory to a considerable degree. Prima facie, therefore, subject to what follows, I think the representations in the interview were created in circumstances where it is highly probable that they are reliable."
His Honour then noted that the first interview was conducted in "highly formal circumstances with police" and that by stating that she recognised that she had to tell the truth, the complainant acknowledged the "solemnity of the occasion".
His Honour then said that he did not consider that the case authorities indicated that inconsistency with other evidence in the proceedings necessarily precluded a finding that it was highly probable that a representation was made. Nevertheless, his Honour then referred to aspects of the evidence which counsel for the appellant contended were inconsistent with the complainant's representations in the first interview. These included Ms Boye's evidence that the complainant had said to her on 4 May 2017 "I've just had the best night of my life. I had sex with this fellow", various evidence given by Ms Anderson, the evidence of Ms Newland, Dr Labib's notes and the complainant's undated handwritten notes.
His Honour then concluded: "Overall, I agree with the Crown that the focus of s 65(2)(c) is the surrounding circumstances in which the representation or representations are made, rather than the content of the representations as compared to other evidence in the proceedings. But I do not think there is a bright line distinction in this regard because of what was said in [Williams v The Queen (2000) 119 A Crim R 490 at [55] - the s 65(2)(c) requirement is "onerous"], which is authoritative. I do not regard the inconsistencies to which [counsel for the appellant] refers as crucial in determining the question posed by s 65(2)(c), and in fact I do not think they detract from the conclusion that it is highly probable that the repetitions made in the interview are reliable, looking at them in this global way as invited to by Mr Pawar in his submissions."
His Honour added that it was "unsurprising" that the complainant "should give her account in slightly different terms each time she offers it". He clearly did not regard inconsistencies between Ms Johnson's notes and the first interview as detracting from his conclusion that the complainant's first interview was admissible under s 65(2)(c).
Turning to s 137 of the Evidence Act, His Honour noted the "very grave disadvantage" to the appellant in not being able to cross examine the complainant and described the "essential question" as being reduced to "the required balancing exercise between the probative value of the complainant's evidence as against the unfair prejudice to the accused as a result of its admission".
His Honour then said that "there is a public interest in grave allegations of this kind being aired" and noted that that was to be weighed against "the grave prejudice the accused suffers as a result of the unavailability of the complainant for cross-examination". His Honour however considered that he could give himself "strong enough directions to ensure that I give full weight to the fact that the complainant is unavailable for cross-examination". His Honour concluded that in these circumstances the probative value of the representations in the first interview outweighed the unfair prejudice to the appellant that would flow from their admission. As a result, he declined to apply s 137 to refuse to admit them into evidence at the trial.

[25]

Relevant case authority

In Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32, Mr Sio was tried before a judge and jury on charges of murder and armed robbery with wounding. The Crown's case was that Mr Sio engaged in a joint criminal enterprise with a Mr Filihia to commit armed robbery with foresight of the possibility of wounding by the use of a knife by Mr Filihia. The issue on appeal concerned the admissibility under s 65(2)(d) of the Evidence Act of evidence of a prior representation by Mr Filihia that Mr Sio had given the knife to Mr Filihia prior to the robbery. The evidence had been admitted at trial on the basis that the representation was against Mr Filihia's interests and made in circumstances that made it likely to be reliable.
The High Court found that evidence of the representation should not have been admitted because it was not open to the trial judge to be positively satisfied of the likely reliability of Mr Filihia's statement. Of critical relevance in this regard was that Mr Filihia was an accomplice of Mr Sio.
The High Court stated the following as to the proper approach to apply s 65(2): "[57] It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65. [58] It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act."
Taking that approach was of particular importance in Sio because, as the High Court said, "[w]hile it is true to say that, generally speaking, the totality of Mr Filihia's statements were against his own interest, his statement that Mr Sio gave him the knife and put him up to the robbery was, given the circumstances in which that statement was made, plainly apt to minimise his culpability by maximising that of Mr Sio" (at [68]). For this reason, consideration of reliability needed to focus on this particular, critical statement rather than simply on Mr Filihia's statements generally.
The Court then turned to consider the reference in s 65(2)(d) to the "circumstances" that may make it likely that the representation in question is reliable. The Court said in this regard that attention should be directed "not to the apparent truthfulness of the person making [the representation], but to the objective circumstances in which it was made" (at [70]). Their Honours endorsed the observation of Mason P in R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 at [29] that the relevant circumstances can include "evidence of events other than those of the making of the previous representation…" (at [69]). Their Honours then said that the "circumstances" in which a representation was made: "may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation." (At [71]).
The Court emphasised that: "Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial." (At [72]).

[26]

Consideration of the s 65 hearsay issues

The appellant first submitted to this Court that the trial judge erred, contrary to the decision in Sio, in not identifying the relevant facts to be proved by the tender of evidence of the first interview and in not identifying the particular representations made in the first interview to be relied upon to do this. The appellant did not accept that, as the trial judge suggested in his ruling, the appellant countenanced at trial an approach inconsistent with Sio and submitted that, even if he had, that would not have relieved the trial judge of his obligation to apply s 65 properly. As the appellant's trial counsel objected to the admission into evidence of the first interview under s 65, I agree that it was for the trial judge to apply the section properly in accordance with the guidance given by Sio and not simply to take the "global approach" to which he referred.
I do not however understand Sio to have stipulated that in every case the court must exhaustively list material facts and representations, irrespective of whether it is possible and sensible in the circumstances of the case to deal with certain facts and representations on a group basis. There was, as I have indicated in [85], a particular reason in Sio why the critical representation with which the case was concerned needed to be identified and addressed separately. Undoubtedly, courts applying s 65(2) need to be alert to the existence of such particular considerations.
In the present case, the material facts were readily identifiable and no doubt present in the trial judge's mind. These were, in respect of each of the five Counts, whether the act of sexual intercourse (or in the case of Count 4, an attempt to have sexual intercourse) occurred, whether it occurred without the complainant's consent and, if it did, whether the appellant was aware of that lack of consent.
The principally relevant representations made by the complainant in the first interview were, in respect of each Count, such statements as there were to the effect that the sexual intercourse (or attempt) occurred, that the complainant did not consent and that her words or acts manifested that lack of consent to the appellant. In its written submissions at the trial, the Crown included a table which gave references to the parts of the record of the interview (referring to question numbers) where these and representations as to other relevant matters were made.
Many, if not most, of the matters that the trial judge took into account in considering the reliability of the representations were applicable to all of the representations. Obvious examples were that they were made "fairly shortly after the events described", to persons in authority and in formal circumstances where the complainant recognised that she had an obligation to tell the truth, and went to matters that, if true, "would have stood out in her memory" (see [75]-[76] above). There was no need for his Honour to refer to each of the representations and state these matters repeatedly.
The appellant did not submit that circumstances such as those that arose in Sio existed in the present case. The principal circumstances relevant here, such as that the representations were made to police in formal circumstances, were of general application to all of the representations in the first interview. Certainly, particular considerations such as those identified in the appellant's submissions referred to at [96]-[103] below needed to be addressed in relation to admissibility but in large measure they were simply matters to be considered at the trial in assessing the credence and weight to be given to the representations.
I add that this judgment is not to be taken as an endorsement of the trial judge's approach which, as he described it, involved taking a "global approach to admissibility". Consideration of each relevant fact and the particular representations contended to support it, and the circumstances in which those representations were made, was to be undertaken. Grouping of the relevant facts and representations was only permissible to the extent that that did not cause a departure from the guidance provided in Sio as to the proper application of s 65(2).
The question on admissibility that in my view needs to be addressed is, irrespective of any deficiencies in the trial judge's approach, whether his conclusions were not open to him because they were unreasonable or whether his Honour took into account extraneous matters or failed to take into account relevant matters. I approach the question on the basis that the test to be applied on appeal is that stated in Warren v Coombes (1979) 142 CLR 531 at 552; [1979] HCA 9 (see Priday v The Queen [2019] NSWCCA 272 at [46]), that is, this Court is to intervene only if, after making proper allowance for any advantages of the trial judge and giving full weight to his decision, it concludes that error has been demonstrated (see also Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]).
On appeal, the appellant's first assertion of error by the trial judge was that in the course of argument on the voir dire his Honour effectively treated the onus of proof as reversed. Even if his Honour did this in argument, this is not of significance when his Honour delivered a comprehensive statement of reasons for admitting the interview evidence (see You, Jae Bok v The Queen [2020] NSWCCA 71 at [19] per Basten JA). The appellant did not contend that any similar reversal of onus occurred in those reasons.
Secondly, the appellant submitted that the reliability of the representations in the first interview generally was undermined by the evidence of the complainant thinking that she might be in trouble, having an apprehension that she might have done something wrong and fearing the judgment of her sister.
Whilst these are matters that were relevant to the complainant's credibility when considered at the trial, they are not in my view part of the "circumstances" in which the representations were made for the purposes of s 65(2)(c), relevant to whether his Honour's conclusion that it was highly probable that the representations were reliable was erroneous (see Sio at [70]-[72], quoted in [86]-[87] above). They were not for example matters of comparable significance to the instance of a "specific retraction of the assertion of the relevant fact" given by the High Court in Sio as a matter which might make the representation "demonstrably unreliable" (at [71]). Although Sio was concerned with the expression "circumstances that make it likely that the representations is reliable" (s 65(2)(d)) rather than the expression "circumstances that make it highly probable that the representation is reliable" (s 65(2)(c)), its approach is in my view in a general sense relevant to the present case.
Thirdly, the appellant relied on the evidence of Ms Boye that the complainant said to her on the morning of 4 May 2017 that on 2 May 2017 she had "had the best night of [her] life" and "had sex with this fellow".
This evidence did not contradict the complainant's representations in the first interview (referable to Count 1 in the indictment) that the appellant had had sex with her on that night. It did however contradict any representations by the complainant in the interview that she did not consent to that act and said or did things from which that lack of consent would have been apparent to the appellant. As I indicate below (at [135]) it is difficult to discern those representations in the interview but, to the extent, if at all, that they are there, they cannot reasonably be regarded as highly probably reliable in light of Ms Boye's evidence. The trial judge therefore erred in admitting them as evidence of those facts, as distinct from the fact that sexual intercourse occurred. The error was however not of any consequence as his Honour subsequently acquitted the appellant on this Count.
Fourthly, the appellant submitted that there was a "stark contrast" between the complainant's description in her first interview of how and why she fell out of bed on 8 May 2017 and that which Ms Anderson said the complainant gave to her. The evidence of the complainant's accident on 8 May 2017 was however not much more than a part of the narrative linking the incidents the subject of charges against the appellant. The difference in accounts was relevant to the complainant's credibility but was not in my view a matter that constituted part of the "circumstances" in which the complainant's representations in the first interview concerning the accident were made.
The same observations apply to the fifth matter on which the appellant relied, being the inconsistencies between the evidence of Ms Boye and Ms Anderson as to what the complainant told them about what occurred on 4 May 2017, and the complainant's versions of those conversations.
Similarly, the evidence of Dr Labib, which was the sixth matter the appellant relied upon, did not indicate that the complainant's representations in the first interview were "demonstrably unreliable" (Sio at [71]), or anything approaching that. What Dr Labib said did not therefore need to be taken into account as part of the "circumstances" in which the representations in the first interview were made for the purposes of s 65(2)(c).
For these reasons, the trial judge's decision that the evidence of the first interview was admissible under s 65(2)(c) has, save in one respect, not been shown to be in error. The exception is that the representations as recorded in the complainant's answers to questions 126 to 178 in the first interview (these being the passages identified at trial by the Crown as relevant to this topic) were not admissible as evidence that the act the subject of Count 1 occurred without the complainant's consent, or that her words or conduct were such that the appellant would or should have understood that she did not consent. The admission of the evidence of those representations should have been limited to exclude that use. They remained relevant to whether sexual intercourse occurred on 2 May 2017. As I have noted this error was not however of significance because the appellant was acquitted on Count 1.

[27]

Consideration of the s 137 exclusion issues

On appeal, the appellant accepted that for the purposes of s 137 of the Evidence Act (as to which see [8] above), the credibility and reliability of the complainant's representations in the first interview were to be assumed (see IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [39]) and that the probative value of the representations was to be regarded as "very high" in considering the application of s 137.
The critical issue before the trial judge was thus whether that high probative value was, to use the language of s 137, "outweighed by the danger of unfair prejudice" to the appellant.
On the voir dire at trial, the appellant's counsel contended that if the first interview was admitted there would be "unfair prejudice" to the appellant because of his inability to cross examine the complainant and because there was a danger of "her unsworn, untested and out of court testimony being given too much weight". He submitted that, because the evidence of her out of court representations was in the form of two videos, the evidence would, or at least may, be "given greater weight than should be the case, and… this could not be adequately addressed through directions".
On appeal the appellant submits that the trial judge "did not in any real sense, in his reasons, address defence counsel's principal concern, namely, the severe forensic disadvantage suffered by the appellant in being unable to explore a range of matters with the complainant in cross-examination".
The appellant refers to some nine topics which could have been explored on his behalf in cross examination. By way of example, the first four are as follows: "the contrast between [the complainant's] representation to Ms Boye on 4 May as to having 'the best night of my life' and her subsequent inconsistent representations about the events on 2 May 2017; the interrelationship between what the complainant said as to count 1 ('the best night of my life') and counts 2-5; her relationship with her sister and fears she held concerning her sister wanting her to move out of independent accommodation; the inconsistency between her assertion that she had fallen out of bed while having sex on 8 May 2017, and the contrary representations in her interviews".
These, and the remainder of the nine topics, identify points that the appellant was well able to make forcefully through his counsel's address to the trial judge, and presumably he did so to the extent he thought appropriate. The trial judge was also well able to direct himself as to the existence of the appellant's disadvantage in not being able to cross examine the complainant, and to take that into account in his deliberations.
It is an inevitable consequence of the application of s 65(2) that the accused will not be able to cross examine the person who has made the previous representations, a condition of the application of the section being that the representor is not available to give evidence. Where the representations relate to disputed facts, which will always be the case where it is necessary to resort to s 65, it is also inevitable that there will be topics on which cross examination could have occurred if the representor had been available.
As Gleeson CJ pointed out in Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [22], unfair prejudice does not arise from the "inculpatory consequences of [the] proper use" of evidence that is admitted. Thus, probative value is not itself prejudice. Unfair prejudice, his Honour said, "lies in the risk of improper use of the evidence" and may arise "because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given". To the same effect, the High Court said in The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 24 at [48] that: "Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury's assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence."
A difficulty for the appellant in the present case is that his trial was a judge-alone trial in relation to which it could be assumed, even more readily than in the case of a jury, that the judge would comply with appropriate directions as to the use of the evidence. As in other judge-alone trials, the judge was to give those directions to himself. Moreover the trial judge here would have been, as he indicated in his judgment on the voir dire that he was, conscious that the appellant would not be able to cross examine the complainant and to factor that into his decision making.
In my view the appellant has not shown that the prejudice he would suffer by being unable to cross examine the complainant was other than what could ordinarily be expected from the admission of important evidence under s 65. In particular, he has not shown that there was a danger of evidence properly admitted under s 65 being misused. As a result he has not, subject to the point with which I next deal, shown that the trial judge erred in declining to refuse under s 137 to admit the appellant's first interview.
A further basis of the appellant's challenge to the trial judge's decision not to decline under s 137 to admit the complainant's first interview was that the trial judge erred in taking into account an irrelevant matter, namely that: "there is a public interest in grave allegations of this kind being aired and they cannot be if I exclude the complainant's first interview."
I do not accept this submission. In making this statement, the trial judge was stating a truism evident from the Crimes Act and Evidence Act, and elsewhere, that certain conduct is against the laws of the community, that the law provides means for offenders to be brought to account and that the community has an interest in allegations of offending behaviour being brought before courts for adjudication. He was not saying that that matter was decisive but, rather, that the interests of both parties need to be taken into account when the discretion under s 137, and under other provisions, is exercised.

[30]

Relevant legal principles

This ground of appeal invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question to be addressed by the court in this context is "whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). To similar effect it was stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]) that "the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt" (emphasis in original). In Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.
In addressing this Ground, this Court must make its own independent assessment of the evidence. As well, in a jury trial it must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence (M v The Queen at 493; Baden-Clay at [65]) but, as stated in M v The Queen (at 494): "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, the plurality said the following concerning appeals on the unreasonable verdict ground against verdicts arrived at by a judge sitting alone, without a jury (at [12]): "Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen: 'It is only where a [judge's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.'" (Footnotes omitted.)
I note in relation to the trial judge's advantage in the present case that although the complainant was not of course able to give evidence, his Honour watched the DVD recordings of her police interviews, as he did in relation to those of the appellant and Mr Davis. Consistent with SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [31] and Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [35]-[36], this Court was not asked to, and did not, do likewise. As well, the trial judge here saw and heard a number of witnesses give their evidence.

[31]

The trial judge's judgment of 16 October 2018

The trial judge commenced by giving himself general directions, none of which are challenged on appeal. In his 70-page ex tempore judgment his Honour then undertook a detailed examination of the evidence, making points of present relevance as described below.
First, his Honour said both early in the judgment (pages 16 and 19) and at the end (page 69) that he took account of the severe disadvantage to the appellant of being unable to cross examine the complainant.
Secondly, his Honour agreed with the Crown that, considering the nature of the allegations and the cognitive impairment of the complainant, some inconsistencies in her versions of events were to be expected and were "not fatal to an assessment of her reliability or accuracy" (at page 37).
Thirdly, his Honour said that the statement which Ms Boye reported that the complainant made to her about the 2 May 2017 incident that it was "the best night of her life" strongly suggested consensual intercourse. That led his Honour to have a reasonable doubt as to whether the intercourse alleged in Count 1 was not consensual and to acquit the appellant on that Count. His Honour said that he carefully considered whether that acquittal affected his view as to the reliability of the complainant's evidence concerning the remaining Counts but found that, as the absence of consent in relation to the acts the subject of those Counts was "corroborated by the surrounding evidence", the appellant's guilt on those Counts was proved beyond reasonable doubt (at page 42).
Fourthly, his Honour indicated in relation to inconsistencies contended to exist within the complainant's account and with the evidence of witnesses, that he "carefully evaluated [each account] against the circumstances in which the account was given and all of the other evidence in the trial" (at page 45).
Fifthly, his Honour said the following as to bruising of the complainant observed by Dr Labib: "After carefully considering the matter, I am of the view that the Crown is correct to suggest that the bruising seen by Dr Labib does corroborate the deceased's account of forceful anal intercourse. True it is that Ms Anderson and Ms Boye did not notice it. They are not expert observers. Dr Labib was, and she was specifically looking for signs which might corroborate the account given to her by the deceased of the accused's actions. I think in fact that the deceased was then suffering from bruising caused by the accused's act of forceful anal intercourse on her." (At page 59).
Sixthly, his Honour stated that he had "given full weight to the proposition that [the complainant's] account may be doubted because she had a cognitive impairment and therefore was liable to mistake or [have an] incorrect perception of events". His Honour noted that the complainant's cognitive impairment was mild and concluded that it did not affect her ability "to give two sequential accounts to police of the events she alleged against the [appellant]".
Seventhly, his Honour found that the complainant "took active steps to indicate her lack of consent to the [appellant]" in respect of the acts charged in Counts 2, 3, 4, and 5. He inferred from that, to the criminal standard, that the appellant actually knew that the complainant was not consenting to sexual intercourse with him.
His Honour concluded by finding the appellant guilty of the offences charged in Counts 2, 3, 4 and 5.

[33]

Count 1: 2 May 2017

Although the appellant was acquitted on Count 1, the evidence relating to it is relevant in assessing the credibility and reliability of the complainant's evidence concerning the remaining Counts.
In light of Ms Boye's evidence that the complainant described to her the night of 2 May 2017 on which she had sex with the appellant as "the best night of my life", it was unsurprising that the trial judge was not satisfied beyond reasonable doubt that the complainant did not consent to what occurred.
The Crown's case on that Count was in any event not strong. When describing what occurred, the complainant did not give explicit evidence of an absence of consent or of making any lack of consent known to the appellant, although she did say that she told him "you're hurting me". Her denial of consent only came at the end of the interview when a police officer asked her expressly about that. A feature of her description was, instead, her emphasis on the impact on her of the alcohol she drank (see especially [20] above). Moreover, her complaints to Dr Labib and Ms Newland did not include a complaint about a sexual assault on 2 May 2017.
Not inconsistently with the principles stated in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, the limited nature of the complainant's interview statements in relation to Count 1 in my view results in their significance in relation to the other Counts being similarly limited. If the complainant had said outright in her description of the events that she had not consented to intercourse on 2 May 2017 and had indicated that to the appellant at that time, the inconsistency of those statements with her description to Ms Boye of the night as the best night of her life would have been stark, raising real doubt as to the credibility and reliability of the remainder of her interview statements. As it was however her statements were arguably to a significant extent consistent with the possibility that she consented to the intercourse on 2 May 2017.

[34]

Counts 2 and 3: 4 May 2017

The vehemence and multiplicity of the complainant's complaints, as outlined below, that she was anally raped on 4 May 2017 (Count 3) stand in marked contrast to the virtual absence of complaint that vaginal intercourse occurred with the complainant without her consent on that night (Count 2).
First, in her 17 May 2017 interview the complainant said that she complied with the appellant's instructions that led to vaginal intercourse because she was "frightened". She did not say, at least explicitly, that she did not consent to that occurring, or that she expressed any lack of consent. She said that whilst the intercourse was occurring she asked the appellant to stop. It is consistent with what the complainant then said in the interview that he did so, but then engaged in anal intercourse with the complainant. The complainant was then vehement in describing that she told him to stop engaging in that but that he continued.
Her complaints thereafter are consistent with a lack of consent to the anal intercourse but do not clearly refer to the vaginal intercourse, which is the subject of Count 2: 1. Her text to Mr Davis the next day arose out of her posterior bleeding, which she attributed to the anal intercourse. In his evidence at the trial Mr Davis said that this was what the complainant complained to him about on that day. 2. The reason she gave to Ms Boye the next morning for being "upset and shaky" was the anal intercourse. She did not clearly refer to the vaginal intercourse. 3. Her description to Ms Anderson on 7 May 2017 of what had occurred on 4 May 2017 referred to the anal intercourse and not clearly to the vaginal intercourse. 4. Her description to Ms Beaumont on 16 May 2017 of what had occurred related to the anal intercourse. 5. Although the notes made by Ms Johnson on 17 May 2017 refer to both vaginal and anal intercourse, they do not refer to an absence of consent in relation to either but the context suggested that she was asserting an absence of consent at least in relation to one of these acts. 6. The complainant's undated handwritten notes contain a vivid description of the anal intercourse, and her lack of consent to it, but no reference to the vaginal intercourse. 7. Dr Labib's notes of her consultation with the complainant on 16 May 2017 record the complainant complaining of anal rape but not of vaginal rape.
I have taken into account the appellant's submission that it was significant that Ms Anderson's evidence did not refer to any complaint that the anal intercourse referred to by the complainant was not consensual and that the complainant had not appeared "shaky", as she had to Ms Boye. Although this is relevant, it does not significantly undermine the force of the other evidence to which I have referred. First, Ms Boye saw the complainant the morning after the incident whilst Ms Anderson did not see her for another two days. Secondly, the evidence generally demonstrated a reluctance on the complainant's part, depending on who she was speaking to, to provide details of the incidents, partly through embarrassment and partly because she might be thought to have done something wrong. It was understandable that in these circumstances that there might be some variations in the fullness of her accounts.
To the repeated complaints of anal rape should be added the evidence of bruising to the complainant's arms and shoulders which was consistent with that having occurred, as well as descriptions of redness and superficial excoriation in the anal area which were also consistent with the complaints. In these circumstances, and taking into account the advantages that the trial judge had in seeing and hearing the DVDs of the interviews and also in seeing and hearing a number of witnesses (see [122] above), I am not left with any reasonable doubt as to whether the Crown proved the Count 3 charge beyond reasonable doubt. The trial judge's verdict of guilty on that Count was therefore open and the appeal should be dismissed insofar as it relates to that Count.
I have reached a difference conclusion in relation to Count 2.
As I have noted, even the complainant's evidence about that Count was not compelling. It left open as a reasonable construction of the evidence that when the complainant first indicated a lack of consent to vaginal sex, the appellant desisted, although he then proceeded to engage in the anal intercourse to which I have found the complainant did not consent. There was a marked lack of complaint to others about the vaginal sex in contrast to what occurred in relation to the anal sex. The only evidence of complaint about the former appears to be the references to penile-vaginal penetration in the documents prepared by Ms Newland. In the hospital form that penetration is described as "non consensual" and in Ms Newland's certificate it is referred to as a "sexual assault". Ms Newland's evidence did not however expand on these references by stating, if it was the case, that they reflected what the complainant told her, rather than inferences or assumptions that none of the sexual acts were the subject of consent.
In my view those references are insufficient to dispel the reasonable doubt I have as to whether the complainant did not consent to the vaginal intercourse. This doubt arises from the tenor of her description of what occurred and the nature of the complaints she made concerning the anal intercourse. The trial judge ought in my view to have had the same doubt. As a result, his guilty verdict on Count 2 should be quashed.

[35]

Counts 4 and 5: 11 May 2017

Count 4 charged the appellant with attempting to force the complainant to perform fellatio on him.
I have summarised in [56] above the critical part of what the complainant said in this connection in the 17 May 2017 interview. To sustain the guilty verdict on this Count, one would have to accept that the complainant gave a very precise and wholly reliable description of the sequence of events in saying that the appellant pulled her head towards his penis and she objected but he "kept pressing her head down" and desisted only when she said "no" again. On this basis, the offence would have been committed in the period between the complainant's two objections, with no indication having been given as to how long that period was. In light of the appellant's inability to cross examine the complainant and the lack of later complaint by the complainant about that act, I have a reasonable doubt, which the trial judge should have had, as to whether the act occurred precisely as described by the complainant. I add to this that the only reference to this act, beyond that in the complainant's interview, was in the notes taken by Ms Johnson on 17 May 2017 (and referred to by the complainant in the first interview). This reference did not provide sufficient detail to elucidate precisely what occurred. Further, the act was not the subject of complaint to any carer or other witness. The guilty verdict on Count 4 should accordingly be quashed.
Count 5 charged penile-vaginal intercourse without the complainant's consent. In her 17 May 2017 interview, the complainant said that the appellant knew that she had a broken sternum and she told him "please don't press hard on my chest". When precisely she was asserting that she said this and what it was intended to indicate is not entirely clear. It was not therefore unequivocal evidence that the complainant told the appellant before that intercourse commenced that she did not want it to occur. It is consistent with her instead acquiescing in the intercourse, in a way that did not necessarily make her lack of consent apparent to the appellant, but requesting the appellant to be careful. Her undated handwritten notes record "I had a broken sternum and I said no", but again do not contain any precise description of what she alleged occurred.
What the complainant asserts that she said whilst the intercourse was occurring was however clearer. As I noted in [56] above, she told him "please do not do this, you're hurting me… You have to stop doing it". The complainant said "he finally gave in" when he ejaculated shortly afterwards.
Ms Johnson's notes of 17 May 2017 record the following: "Vaginal Sex - because he couldn't get it in he asked to have another pillow. Pushed his head on your sternum".
Ms Beaumont gave evidence that the complainant complained to her about the alleged anal intercourse without consent (Count 3) but there was no clear reference by the complainant to the incident of 11 May 2017, the subject of Counts 4 and 5.
Dr Labib's notes evidence a clear complaint by the complainant concerning 4 May 2017 but record in relation to 11 May 2017: "She also stated that he came back for sex a week later. She is confused when [I] asked her if it was consented or not" (see [62] above). In oral evidence Dr Labib said that the complainant was "really confused" about that occasion. When Dr Labib pressed the complainant for an answer about consent, even when she put it in the form "did you want to have sex with him", the complainant's answer was "I'm not sure".
Ms Newland's notes refer to the penile-vaginal intercourse on 11 May 2017. They say that the complainant stated that "she had been telling him to get off her" and that during the intercourse the appellant "was pressing onto her chest, which was hurting due to a fractured sternum".
Taking all of this evidence into account, I am left with a reasonable doubt as to whether the complainant consented to the intercourse before or when it commenced on 11 May 2017. Of more difficulty is the question of whether at some stage during the intercourse, probably near to its commencement, the complainant felt pain from the injury to her sternum and told the appellant to desist, which he failed to do until he ejaculated. The complainant's statements at the 17 May 2017 interview to this effect are corroborated to some extent by Ms Newland's notes and are consistent with, and arguably credible in light of, the undoubted fact that she had fractured her sternum only a matter of days earlier.
The evidence given by Dr Labib that even when pressed for an answer as to whether the intercourse was non-consensual, the complainant did not so characterise it however leaves me with a reasonable doubt as to whether it was. The complainant had been seeing Dr Labib since 2013 and appears to have had a good rapport with her. The complainant had no compunction in describing to Dr Labib the anal intercourse on 4 May 2017 as rape. As Dr Labib said in relation to that incident, "there was no confusion that she was forced into that". The contrast with what the complainant did and did not say to Dr Labib about the 11 May 2007 incident is marked.
As I consider that the trial judge failed to have the reasonable doubts that I have in relation to the appellant's guilt on Counts 4 and 5, the guilty verdicts on those Counts must be quashed.

[39]

The Facts of the Offence

The evidence relating to this count is set out at [29] - [33] above. In summary, the incident occurred on the evening of 4 May 2017, following the appellant's arrival at the complainant's front door, which he had loudly knocked upon. The complainant opened the door, fearing the noise that he was making would disturb her neighbours.
After an alleged act of penile-vaginal intercourse (count 2, against which an acquittal will be entered), the appellant grabbed the complainant and turned her so that she was positioned face-down on her bed. Pressing her face into the mattress, the offender told the complainant, "this won't hurt". The complainant's response was "you're hurting me now".
The appellant inserted his erect penis into the complainant's anus and thrust himself inside her. This act caused her extreme pain; she endeavoured to get the appellant off her, but he grabbed both her upper arms and pressed her further into the mattress. The complainant yelled, "no, stop doing that", telling the appellant, "You're hurting me and I want you to stop". He did not stop, but rather continued until he ejaculated. He had not used a condom.
He left the complainant's home after cleaning himself in her bathroom.
The complainant suffered anal bleeding and pain as a result of the assault upon her.
The evidence as to her level of cognitive impairment establishes that the complainant suffered from a borderline-mild intellectual disability. Her deficits impacted upon her ability to reason, particularly when faced with an unfamiliar problem. She had difficulty with many life skills and required daily support for ordinary needs. The complainant's disability led to a limited capacity to understand the motivations and intentions of others. Her receptive language capacity - the equivalent of that of a child aged 6 years and 6 months - inhibited her ability to understand interpersonal situations and appropriately respond. Her problem-solving skills were much reduced below the average.

[40]

Evidence Before the District Court on Sentence

The appellant, a Fijian national, was born in April 1971 and is now 49 years old. He was 46 years of age as at the date of offending.
Although he has no criminal history in New South Wales, his Fijian criminal history contains convictions for drugs and violence offences. On two separate occasions in June 2008, the appellant was convicted of being found in possession of dangerous drugs. Bonds were imposed upon him. In May 2014, he was convicted of two counts of assault occasioning actual bodily harm and suspended prison terms were imposed upon him. He was also made subject to a domestic violence restraining order, the crimes having been domestic violence offences.
A sentencing assessment report ("SAR") was prepared for the sentencing proceedings in the District Court. It refers to the appellant as a Fijian citizen, who will be deported upon release from prison. The appellant's mother lives in Australia; his wife and three older teenage children remain in Fiji.
Because the appellant has no social or employment history in Australia, the SAR provides limited information as to his personal circumstances. The appellant told the author of the report that his family is a close one, and that he retains the support of family members. He claimed to have been "mainly employed" since finishing his education.
Of his offending conduct, the appellant "strongly regarded himself as innocent" and "stated that all sexual contact with the victim was consensual". He blamed the complainant, whom he described as "a mental case" for his situation. He was regarded as having a "poor understanding of appropriate boundaries", demonstrating "a sense of sexual entitlement". The only impact of his crime that the appellant recognised was on himself and his family.
He was assessed as posing a low-medium risk of re-offending, and a below average risk of sexual re-offending.
The appellant tendered certificates of attainment relating to his completion of vocational and religious courses, a letter from the prison chaplain, and a psychological assessment.
The appellant had attended religious services whilst held on remand, and was regarded by the chaplain as wanting to live an upright life and to be "right before God". He had sought religious absolution for past wrongs, although not for the offence against the complainant, maintaining his innocence to the chaplain.
Mr Andrew Fordyce, clinical psychologist, prepared a report dated 25 January 2018 at the request of the defendant's solicitors in preparation for the sentencing proceedings on 1 February 2019. The appellant appeared settled and calm and cooperated with the assessment. No indications of psychotic disturbance were observed.
Mr Fordyce obtained a history from the appellant. Despite the death of his father when he was a young child, the appellant described a positive and stable home environment. His family were financially and emotionally stable and he received reliable and appropriate support. He felt loved and encouraged as a child. He completed Fifth Form at high school, the equivalent of the NSW Year 10 School Certificate, but his grades were not high enough to allow him to pursue advanced education. He entered the workforce, initially with a sugar farming corporation, and later managing the family farm. The appellant also worked casually as a carpentry labourer.
The appellant said that he had enjoyed socially positive friendships in both Fiji and Australia, and denied any antisocial associations. He referred to four intimate relationships prior to his marriage. The appellant married when he was aged 30 years old, to a woman selected for him by his mother. The couple have three children. Mr Fordyce noted that the defendant's account of his relationship with his wife focused on "practical matters and caring for their children, rather than an emotional or intimate connection, which may reflect a lack of insight into such elements of their relationship".
The defendant stated that the only significant conflict with his wife occurred when there had been a dispute about exchanges of text messages he had made with other women. The appellant claimed that his wife ran from their home and fell and injured her head. Having regard to the charges brought against the appellant in Fiji, Mr Fordyce thought that the appellant may have minimised the severity of the incident. The appellant asserted that his wife continued to be supportive of him as she "knows [he] hasn't done this".
In later years the appellant's mother moved to Australia and the appellant travelled between Australia and Fiji, visiting his mother.
While he initially denied infidelity in his marriage, the appellant acknowledged having used the services of a sex worker "a couple of times" in Australia and Fiji. He claimed that he and his wife had discussed him forming a sexual relationship with a woman in Australia as a means of gaining a permanent visa, to which his wife had reportedly agreed. He said that he had been attempting to gain a permanent visa since 2011, but had been rejected, and this was an alternate means of doing so. Mr Fordyce stated that: "his account of infidelity and forming a sexual relationship for the purpose of gaining a visa appear incongruent with his emphasis of the importance of sex in his marital relationship. I suggest that these inconsistencies indicate that Mr Prasad holds a superficial understanding of sexual intimacy within a long-term relationship and maintains beliefs that justify infidelity."
Mr Fordyce thought that the appellant demonstrated a basic understanding of sexual consent and boundaries.
The appellant reported alcohol use from the age of 19, which he maintained was social only. He had used cannabis in the past, but ceased after being criminally charged in Fiji with drug offences.
The appellant denied any history of psychiatric or psychological disorders, and denied any symptoms of such disorders.
The appellant denied any offending against the complainant, expressing no empathy or remorse.
Using actuarial tools to assess the risk of reoffending posed by the appellant, Mr Fordyce concluded that his risk fell in the average range of recidivism for sexual violence. He thought that the defendant's primary treatment needs resolve "around his denial of his sexual offending and how his subsequent lack of insight may contribute to his risk of recidivism."
Before this Court the appellant read his affidavit affirmed on 4 September 2020. In it he gave an account of the institutions in which he has been incarcerated over time, and the work that he has undertaken in custody. The appellant has worked in upholstery, and as a cleaner, and has participated in a number of educational courses. He has been attending church services and was recently baptised.
He deposed that his wife and three teenage children continue to support him. He is concerned about his family in Fiji as their financial circumstances are straitened. He is also worried about his elderly mother, as she has no family support in Australia and is unable to return to Fiji because of the quarantine restrictions that presently apply to international travel. The appellant has had only limited contact with family members due to the same pandemic-related restrictions on visits to custodial institutions.

[41]

Proposed Sentence

The maximum sentence of 20 years imprisonment and the standard non-parole period of 10 years provide the legislative guideposts for the sentencing exercise.
This was a most serious offence. It involved the forcible anal rape of a complainant who was not just cognitively impaired, this being the aggravating feature, but who was also physically disabled, and very limited in the physical resistance she could make to the appellant's unwanted sexual attentions. That the offence occasioned injury to her, and occurred in the complainant's home, where she lived alone, isolated from any immediate assistance, are further features which increase the gravity of the crime. The appellant did not wear a condom, potentially exposing the complainant to the risk of disease, or to the anxiety of that exposure.
Whilst it could not be concluded to the criminal standard that the offence was planned, nor can it be concluded on balance that it was spontaneous. I am satisfied, however, that the appellant was aware that the complainant was both physically and cognitively impaired when he forced himself upon her.
The appellant has expressed no remorse and, on the evidence of the SAR, he blames the complainant for his wrongdoing, and seeks to diminish her by referring to her as a "mental case" or "madwoman", impugning her by the very disability he exploited to use her for his sexual gratification. It is clear that a measure of specific deterrence is called for.
The appellant's criminal history, including for two offences of domestic violence, is such as to deny the appellant the leniency that might otherwise have been extended to him, and further indicates a requirement for specific deterrence.
General deterrence must feature in the sentence to be imposed because of the strong need to deter others from similar cynical exploitation of especially vulnerable members of society.
Although the appellant is isolated to a degree in custody, his isolation is a feature he has in common with all prisoners presently, as a consequence of health related restrictions. Those restrictions are now easing, although distance from family internationally will continue to have an adverse impact upon the appellant.
Although that is a matter that could lead to a variation in the ratio of sentence, I am not persuaded that it is appropriate to make that variation in this case. The non-parole period I propose reflects in my view the minimum period of incarceration required to reflect the gravity of the appellant's crime.
I would impose a sentence of 8 years imprisonment, with a non-parole period of 6 years. The sentence should date from the date upon which the appellant entered custody, 18 May 2017. The sentence I propose is: 1. The appellant is sentenced to 8 years imprisonment, to date from 18 May 2017 and expiring on 17 May 2025; with a non-parole period of 6 years, expiring on 17 May 2023.
N ADAMS J: I have had the advantage of reading the reasons of Macfarlan JA and Wilson J in draft. I agree with the orders proposed by their Honours for the reasons provided. I have examined the evidence and am satisfied that the learned trial judge ought to have had a reasonable doubt on counts 2, 4 and 5.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (42 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (30)

Cited By (9)