R v Jesse Robert Thurlow

CROWN WITNESSES

1. The Complainant MH gave evidence via a remote room from Brisbane. She was accompanied by her friend as a support person. Concern was expressed in the early part of her evidence that the support person was whispering to her while she was giving evidence. It was established to my satisfaction that the support person was simply providing calming words, but my observation is that her constant presence stroking and patting the Complainant's arm may have been a distraction. The Complainant however maintained that she did not find it so .She was mostly emotionally well controlled while giving her evidence, although occasionally tearful and occasionally angry, but not inappropriately so. I accept that she found it difficult to speak of the events of that evening in a court setting. Conversely had been discussing the events with many people over the 5 years since the event. I accept and am well used to the requirement for witnesses to give evidence remotely and draw no adverse inference about her evidence for that reason.
2. Kate Thurlow (Kate) the Accused's cousin and housemate, was present during the early part of the evening. Kate gave evidence remotely from Perth, possibly due to COVID restrictions. Her evidence was relevant to the events of that evening, the circumstances in which she gave her statement to police, (therefore Count 4 on the indictment), and specific character evidence concerning the Accused. She was calm and confident in her delivery, but tearful when she spoke of the Accused's character. Her affection for him was obvious.
3. Brenton Pearce (Brenton): a friend of the Accused who was present that evening, and had discussions about the event with the Accused and other witnesses prior to and on the 20th April 2017. Brenton was charged and has pleaded guilty to his part in attempting to pervert the course of justice relating to his police statement. He was nervous and reserved in his presentation and in many places of his retelling of events, gave the impression of being embarrassed, forgetful, evasive or all three. There were many times he simply did not answer questions until he was asked several times.
4. Detective Ward (OIC): The investigating police officer who took the initial statement form the complaint, conducted interviews with Brenton, Kate and Stefan Arabadzhiyski and conducted other investigations regarding complaint evidence. She applied for the telephone intercepts after the complaint was made.
5. Jessie Christensen: A friend of the Complainant, who gave evidence remotely from Queensland. Her evidence related to complaint evidence. A number of statements relating to her evidence were tendered by consent. She is one of the people the Complainant has discussed this event with.
6. Dr De Cure: Medical doctor who conducted the initial medical examination of the Complainant and took notes to direct her physical examination. Her expert report is dated 25 September 2016.
7. Dr Susan Pullman: Master of clinical neuropsychology, who gave evidence covering generally the effects of trauma on memory and the expected difficulties in responding to and reporting sexual assault.
8. The evidence of both experts was not challenged to any extent and I have no reason not to accept it.

DEFENSE WITNESSES

1. The defense case consisted of the Accused (Jesse), and the Co-Accused in related proceedings Stefan Arabadzhiyski (Stefan). Both answered many questions stating that they could not recall. Jesse's evidence was limited as to recollection. He presented as being nervous. Stefan also presented as being nervous, and answered many questions by saying "I imagine", until told not to do so. His recollection of much of the evening was scant. Both gave evidence of the events that evening and related conversations. Further character evidence was called from the Accused sister, Kacey Thurlow, his friends Pieta Rowland and Laura Hartelius.

CROWN CASE

1. The events covered a period of about 4 hours of the of the evening of the 15 April 2015. Several events of note occurred during the evening, and each person at the home had a different version of these events, and a different version as to the presentation and behaviour of the Complainant and the Accused over the course of the evening. The sexual intercourse took place at the end of the evening. It is necessary to assess the evidence relating to each part of the evening.

COMPLAINANTS ARRIVAL AT THE HOME

1. The Complainant told the court that she came to Sydney from her home in Queensland in February 2015 to work in a pizza business in Brighton-Le-Sands. She had few friends, largely work and share house colleges, so she signed up to the Tinder app, in order to meet and make friends.
2. A few days before this event, she clicked on Stefan's profile. He appealed to her because he was an accountant, (her mum an accountant) and he had a nice smile. They exchanged texts and she accepted an invitation to a party/ gathering at his home. She said that she told him via text on the Tinder app that she did not want to attend if it was just boys drinking, but agreed to go after Stefan assured her, another female housemate, would be there too. These chats were not available. Stefan cannot recall conversation regarding the presence of other females.
3. She and Stefan exchanged texts about the possibility of her staying the night, so she took her work clothes for the next day in a tote bag. Stefan agreed that an exchange of texts of this nature occurred, and agreed that he could take her to work the next day if necessary. They did not have a conversation in text or otherwise about where she might sleep if she stayed. She told the court she had no expectations of where or if she would sleep if she stayed.
4. She said did not bring alcohol in her bag. There is no evidence otherwise. Stefan thought she bought cans of drink, but was vague and on balance I accept that she did not. In any event, there is no suggestion that she was intoxicated. This is an irrelevant consideration.
5. The complaint said she wore a blue strappy dress and white Madeline cardigan/ coat, done up with 3 buttons. Kate recalled a low cut dress. Her clothing is, I find, irrelevant to the issues under consideration. On arrival, or when she moved to the balcony, she placed her bag in Stefan's room.
6. The Complainant gave uncontroversial evidence that on arrival, she and Stefan entered through kitchen into the lounge. She said there were some people in the lounge, uncertain who and how many, but was certain that Kate and Kate's friend, a thin girl, were both sitting on the floor in front of the coffee table, and a male was playing a game on the TV. The presence of the other girl was not referred to in her police statement, and it was suggested to be an invention. No one else confirmed the presence of another girl that evening. I doubt there was one.
7. The Complainant dramatically denied, proclaiming …"God No" that at any time she sat on boys laps in lounge, and stated …"I don't dance" when denying dancing in the lounge room. She said that she did not notice anyone dancing. This will be referred to later as it is one of the circumstances the Accused relies upon in suggesting the Complainant was flirting.
8. Kate recalled she was sitting on the 3 seater couch, and the Complainant sat next to her, talking. Her recollection of the room layout (ex A), accords with the recollection of Kate, who seemed to have the best memory of the configuration of the lounge that evening. Her evidence was that the Complainant sat on the lounge chair, next to her and did not give evidence of dancing, nor flirting, nor lap sitting. No other female was present. The invention of an additional female in the house by the Complainant is a puzzling addition to her evidence.
9. Brenton said that the Complainant was sitting on the laps of Jesse and Stefan while they were playing FIFA (in the lounge). There are real issues in accepting Brenton's evidence, noting the disdain he has for truth telling in a court' (ref his telephone calls P11 MFI 5). In his final cross examination (transcript 28/08/2020 page 6), he said that one of the things they discussed at the meeting on the 20th April was the Complainant sitting on laps. He said that as at the time of giving his evidence in court he could not distinguish between what they talked about at that meeting and what he actually remembers.
10. Jesse said that she was sitting on the laps, but that he was told this by Brenton at the meeting on the 20th April 2017, and he believed it. He did not profess independent recollection of it. I do not accept this occurred at all. This became part of the story created by Jesse and/ or Brenton to discredit the Complainant. Further reference will be made to this later.
11. Defense submit that the arrival with clothing for the next day demonstrates an intent on casual sexual engagement. The Crown submit that this detail of how she was to get home is inconsequential to the issues above. There is no evidence that Jesse was aware of the lack of arrangements for her to leave at the end of the evening nor that she knew anything about him. It is I find a largely irrelevant consideration but maybe an indicator of her state of mind. It is not relevant to any matter that this Accused considered.
12. I do not accept that the Complainant was doing anything noteworthy on her arrival other than sitting on lounge chairs, drinking and talking.

BALCONY FIRST TIME

1. All evidence confirmed that after some time all were on the balcony together, drinking and smoking cigarettes. The Complainant could not recall specifically other people. She said she did not feel particularly warmly welcomed by the people in the home, who she felt largely ignored her. She described herself as "introverted with issues of social anxiety". This presentation was not obvious in her evidence. She was open and occasionally dramatic in her presentation. Her recollection of meeting Jesse, who she understood to be Kate's cousin, was on the balcony.
2. The Complainant's recollection of what occurred in the balcony the first time the group moved to that area is not largely in dispute, other than her insistence that the other girl was also on the balcony , at least for a short time. The Complainant agreed that at no time did she say to Stefan that she was not having sex with him, noting "I didn't think I'd have to". This is an obviously true observation.
3. The Complainant said that earlier in the evening she talked generally with Kate and Stefan. This evidence is confirmed by Kate.
4. Kate told the court, that for this time, the complaint was joining in the conversation with others, and that she (Kate) talked to her both inside the lounge and on the balcony, as part of the group. Kate recalled sitting on the balcony ledge talking to Stefan and the complaint who were sitting on one of the balcony couches. Kate recalled (T 31/08/2020 p 15) that the Complainant said to the group that she …"had been told she was really good at giving blow jobs". She could recall nothing else about this conversation or what anyone else said before or after it. She recalled some laughter. I do not accept that this is truthful evidence for reasons I will set out later.
5. In general people on the balcony were drinking, talking and smoking cigarettes. The Complainant said she had 2 or 3 beers over the night. She said that she was not drunk. Her strong recollection is that Jesse and his friend (who it is not in issue was Brenton) were heavily intoxicated. She referred to them and later 2 younger men drinking via beer bongs, which as I understand is a method of rapid drinking of beer through a funnel to increase the rate of alcohol consumption. This process requires 2 people, one to pour the beer into a funnel, and the other to place themselves at the other end of the funnel, below it, to ingest the alcohol quickly. Through the night, including the first time on the balcony, Jesse and Brenton consumed beer via this method. The use of beer bongs by Jesse and Brenton is not in dispute. Brenton said they were both drunk. Jesse he was "somewhat intoxicated". Kate said she did not notice them being intoxicated, but she left early in the evening. Stefan said they were "medium". I find it is likely that Brenton, who was drinking with Jesse all evening is likely to have a more accurate understanding of their level of intoxication. This is supported by Jesse's apparent lack of memory of the night.
6. The Complainant's memory, and indeed the memory of most of those present for detail of this part of the evening is unsurprisingly only partial. At that time there was not any reason to recall events in detail. All the participants were consuming alcohol to some extent.
7. The Complainant was cross examined on the amount she drank, and whether in her self-report completed months later, in the Sex Assault Self Report (SARO) she was attempting to minimise her degree of intoxication. I do not accept this proposition. There is no complaint from any witness that she was acting in an intoxicated manner. She was not participating in the beer bongs and Stefan's evidence that she bought her own alcohol and drank it before she started drinking beer supplied by others, was vague and imprecise.
8. The Complainant told of some flirting with Stefan on the balcony. By flirting she meant talking about past relationships, and small touches on the back and arm. Her recollection of the Accused, is of observing him drinking. She denied flirting with him. Neither Kate nor Stefan say that she was.
9. When she asked, Stefan directed her to the bathroom, by taking her back through the bedroom to the bathroom at the back of the apartment. She was reminded in cross examination that Stefan was changing the music in his bedroom when she came back and she agreed, although she had not recalled this detail before. She was of the opinion that that was the only available route to the balcony, but this does not appear to be the case. It may have been the only one she was aware of. In any event she entered the bedroom.

FIRST EVENT

1. In the bedroom, she described more flirting .Her version of events was that Stefan became more suggestive of sexual activity, and according to her evidence …"he grabbed me and leant down to kiss me, once". He told her that she had …"blow job lips". She said she …"laughed it off". She said she kissed him for a few minutes. She was challenged that she had not previously told police about the detail of this conversation. She said that she did not think the detail was important, and that she had told her friend Stacy. Stacey's statement did not contain this information (ex 19).
2. In relation to this event she denied evidence that Stefan would later give that she said something like …"I give the best blowjobs". She proclaimed " No" in an animated presentation when denying this or that Stefan also said .."yes sure you do, No guy is ever going to tell a girl otherwise." Later when counsel returned to the topic, she denied that she had ever bragged about giving blow jobs, or had heard this suggestion before.
3. In any event, whatever this private conversation between Stefan and the Complainant was, shortly afterwards, she knelt either on the floor or the bed and performed fellatio on him at his request, while he sat or lay on the bed. The challenge on whether she was kneeling on the bed or the floor at this point is an insignificant detail. Any discrepancy which exists is immaterial to the complaint's credibility.
4. As to whether this event was consensual, she said that she… " did not want to" but did as requested, and felt … "some pressure". She said she felt uncomfortable, due the very public place they were, that is next to the balcony. She readily agreed that at that time she was …"desperate to make connection with anyone (and she) felt that was what she had to do". She however acknowledged that the pressure was due to her own feelings, not something coming from Stefan. There is no complaint that this event was without the consent of the Complainant. There is no suggestion that she did not consent and I find she was a willing participant. Very little encouragement from Stefan was required.
5. The fellatio continued for some minutes, before she stopped. There was little conversation when she stopped, and there was apparently no pressure from him to continue. Neither gave evidence that he ejaculated.

2ND TIME ON THE BALCONY

1. After this event, which according to the evidence of both the Complainant and Stefan lasted a short time, they both went back to the balcony, and sat as before on the sofa. The Complainant said that Kate and her friend were no longer present. This conforms with the evidence of Kate, and is not very different to the somewhat vague recollection of Stefan. Also on the balcony at this time were some others, but no one else on their couch. This evidence also conforms with the evidence of Stefan. They drank and smoked some more.
2. The Complainant did not recall speaking to others who were on balcony, but referred to …"witnessing Jesse to be drinking". At the time of giving her evidence she was obviously disapproving of his state of intoxication. She told the court Jesse called out to two young guys, who came up to the balcony, and were offered beer to drink. Brenton and Stefan both confirmed that one of these young men drank one or more beer bongs, according to Brenton's evidence …"at light speed". The young men were variously referred to as students or uni students or kids. Brenton and Stefan estimated them to be 18 or 19 years of age, clearly younger than them. Stefan said that Jesse was acting like an older brother to them, but I am unsure what this means in light of the evidence of beer swilling and yelling later on in the evening. Stefan referred to it as …"boys being boys", suggesting there was nothing untoward with the activity as far as he was concerned.

THE FIGHT DOWNSTAIRS

1. The Complainant's recollection is that after some time, one of the young men became upset and went down the balcony stairs to the street. She said that Jesse was very drunk and agitated, followed him to the street and became physically aggressive toward him, tackling him onto the ground. The Complainant said that one of Jesse's friends (possibly Brenton, but there is little clarity about this evidence) intervened and saying to Jesse that "he just a young kid". Jesse and his friend began to hit each other, throwing at least 2 punches. She said the fight was broken up by another friend who she was unable to describe. There is no cogent evidence that another person was involved.
2. In relation to this part of the evening, she was of the view that the two young guys were underage and was disapproving of Jesse insisting they drink. This disapproval is a retrospective insight, potentially influenced by her feelings about the later events. There is no evidence that she expressed her disapproval that evening.
3. This event, according to her recounting of it, was a catalyst for a change in the atmosphere in the house, as she perceived it. Her evidence is clear that Jesse was drunk and aggressive, and her clear recollection is of a violent fight, with a young man and later his friend, with at least 2 punches thrown. She said she viewed this from the street level to where she descended, with Stefan, after the yelling commenced. As a consequence of this fight she had a later brief conversation with Jesse, which together with the fight convinced her that she ought leave the house. It was therefore an event that is and was of some significance in her retelling of the events of the evening, and in assessing the reliability of her evidence in court.
4. Other evidence of this event is varied, and in parts at variance with the Complainant's recollections.
5. Brenton's evidence on this point changed as he gave evidence. At first he could not recall much other than a wrestle not associated with the young men. When prompted, he agreed that he now did recall more of the event. He spoke of Jesse carrying on a bit (T 28/08/20 P 16,17 & 18), and described that when one of the young men left the balcony, there was some yelling from someone about the rubbish bins. Jesse became upset that the young man was taking the bins from their position on the road, as apparently requested by an unknown person, possibly a neighbour.
6. Jesse intervened causing what Brenton called "a bit of a ruckus". This evidence was given with apparent reluctance by Brenton. He finally agreed that Jesse was loud, yelling and frustrated at the young man to the point where Brenton intervened to stop the ruckus between Jesse and the student. Brenton described a "tussle" between Jesse and himself. He described their tussle as being "just being stupid, open handed, holding on to each other and trying to get him to the ground." They were downstairs for about ½ hour in total. Brenton won the tussle, getting Jesse to the ground.
7. Brenton told the court that at that point, Stefan came downstairs and said words to the effect of "get inside…it looks like you are having a fight" (T 3/09/2020 p 16).
8. Parts of the evidence given by the Complainant are supported by the belated recollections of Brenton. I find that notwithstanding Brenton not being generally a person whose evidence is to be trusted, his presentation when giving evidence was that when directly confronted with a question, he struggled with answering it, if he felt it would not assist his friend. His presentation generally was nervous but somewhat chagrined by his recent experience at this own sentencing proceedings. He mentioned several times that he was keen to tell the truth. This is a direct conflict to his cavalier attitude to the truth during the recorded telephone conversations and his police statement.
9. Brenton's version of this part of the evening is closest to the Complainant's version, and I accept is probably what occurred.
10. Shortly afterwards, according to the Complainant, Stefan reassured her that there was nothing to worry about saying …"they do it all the time". Stefan did not confirm this series of events in totality, although, when pressed he conceded that he might have gone downstairs at this point (T4/09/202 p 27). Neither Brenton no Stefan could recall the Complainant being downstairs.
11. Jesse described this part of the evening differently. He told the court that it was Kate who pointed out that the student was drinking all of his beer, and he should go. Jesse said that he escorted the student to the street level. He recalled that the young man was concerned about his friend. He confirmed that he and Brenton had a "wrestle" on the lawn, but this event was not connected to the student in Jesse's version. Jesse denied that he saw the Complainant or Stefan on the street level. This version of events is not only completely at odds with anyone else's version, he places Kate as the instigator of the event, when all of the other evidence has her no longer present. In a phone conversation with Ben Goodman on the 20th April 2017 (MFI 5 p 50 ) he said …."I recall bits and pieces. We went down and had a punch up on the lawn". Jesse's evidence about this event is rejected.
12. I accept that the complainant's version of events is supported by the 2 other men's version in part, that the confrontation on the street level did involve a young man. It was loud and from an outsider's viewpoint looked like a fight. No injuries were reported by anyone.
13. Therefore the challenge to the Complainant that the fight was invented is clearly refuted. Her uncertainty as to the details of who was involved, and whether another person intervened or not, does not reduce the potential importance of this event to the later events of that evening. I accept the complaint's evidence that she went to the street level with Stefan. The fact that no one else recalls her presence does not undermine her evidence.
14. After this incident, the Complainant and Stefan returned to the balcony. The Complainant (T 20/08/2020 p 37 ln 40) said that she …"was feeling uncomfortable" and … "felt unsafe with someone who could physically harm someone for doing absolutely nothing, so I went to have my last cigarette and go to the bathroom before I collected my things".
15. The real importance of this event is whether it had the effect upon her as she stated. If it was as frightening as she said it was, it is surprising that she took herself close to it. The level of her fear is perhaps an exaggeration.

TOILET INCIDENT

1. The tension in this part of the complaint's evidence is in understanding why, if she was as she said uncomfortable with Jesse's aggression and said so and she was going to leave, she nevertheless, remained.
2. Apparently before returning to the balcony, or having a final cigarette, the Complainant went to the toilet again. She said that on opening the bathroom door she saw that Jesse and his friend (Brenton), both in the toilet area. She observed Brenton, standing behind Jesse, trying to trying to hold him up while he was urinating. Jesse was swaying, had his pants pulled down and penis out, and turned toward her when she opened the door. She said sorry and left. She was challenged on the detail of this (T 24/08/2020 p 14 and 15). Her initial statement to police mentioned the toilet incident, but not a reference to Jesse being held up while he was urinating. If this event occurred in the way relayed to court, it would have, I suggest, been a stark memory for her of the evening's events. Even allowing for as Dr Pullman's evidence regarding memory (not being always retrievable in an orderly fashion, and inconsistencies being common), this event and the apparently confronting nature of it appears in the complaint' narrative to be a central, distinctive and personally significant aspect of the evening, coming as it did on the complaint's evidence immediately prior to the sexual assault. It was an event that increased her fear and discomfort of being around Jesse.
3. Brenton, the other person in the bathroom at first denied that he had seen the complaint in the bathroom at this or any other time. He eventually recalled that she did enter the bathroom doorway briefly while both he and Jesse were there. He was he said standing next to the wall. Nothing of note happened.
4. It is entirely plausible and even likely that when the Complainant opened the toilet door, which Brenton finally agreed she did, that Jesse turned to look to see who had opened the door. This is an unremarkable observation by the Complainant, only made important as a connecting event between the earlier fight, the drunkenness of both men, and the subsequent verbal exchange with Jesse. The swaying and holding up by Brenton appears to an addition to her evidence when compared to her police statement. For reasons known to the Complainant, this is an embellishment to her version of events and part of her retrospective disapproval. It is one of several embellishments of events during the latter part of the evening that the complaint has made in her evidence.
5. The complaint's evidence of what happened next with the Accused is of an event where they were the only participants. She said she went to the other bathroom, and apparently on the way back to Stefan's room saw the Accused in the lounge, (which is adjacent to both bathrooms) and said …"I saw what happened, are you OK?". He said "I don't need to tell you anything. You are only here for Stefan's entertainment. You are just a slut". She was challenged on this response and confirmed it and that it …"terrified" her, in the light of the earlier what she perceived to be violence on Jesse's part. The Accused denied that he had said anything like what he said was this crass statement. However his memory of the evening is limited. His character witnesses say that he is not known to behave like this. His character witnesses however may be surprised by the nature of all of his private conversations. The suggestion by his sister that when he drinks he becomes more charismatic is obviously tainted by her affection for a younger brother. There was little charisma about the event with the young men. He was loud, rude and aggressive and drunk.
6. It is plausible that this conversation occurred, and if it did, the Complainant's response may have been fear, or even disgust. It is unusual therefore that she remained in this house, and decided to re-join Stefan on the balcony, for that final cigarette. However her evidence is that she did.

3RD TIME ON BALCONY

1. After she re-joined Stefan on the balcony, she related the confrontation with Jesse to him. She told him that she found Jesse to be aggressive, and thought he was drunk, and that she was intending to head home.
2. Stefan and the Complainant were, according to her the only people on the balcony at this time. Stefan denied that she mentioned leaving or anything like a conversation regarding Jesse took place.
3. The Complainant said that while they had a cigarette Stefan kept bringing conversation back to the previous event between them in the bedroom, and that he would like to kiss her In response she replied that she had just split up with her girlfriend and probably wouldn't be tied down, (which was apparently a joke). Stefan then told a joke that she could not recall and then he said he said …"It's a shame I'm only 1 man". She responded …"yeah a shame".
4. This conversation assumes some importance in assessing the complainant's credibility. It is the conversation that the Crown says was the preamble for the unwanted breast touching on the balcony leading to the forced sex shortly after. There was for the Complainant some confusion about the sequence of this conversation. At first she said this was in response to her saying she had broken up with her ex-girlfriend, then about the previous oral sex. The conversation was referred to in the SARO which was completed by her some 4 months prior to her police statement and records that the joke was a response to her joke about a lack of sex life (T 21/08/2020 p74,75).This at least makes sense in context.
5. When challenged on this issue, the Complainant digressed to a largely irrelevant explanation of how her recently diagnosed PTSD caused difficulty with short and long term memory. I accept Dr Pullman's evidence that PTSD can and does result in memory gaps and flashbacks. It does not explain how the previous memory of the very important statement she recalled …"only being one man", loses its proper context. The more credible version of events is that these words (or joke) by Stefan was in response to the Complainant talking about her lack of sex life, as recorded by her in the SARO. This places the conversation on the balcony before the sexual activity in at least a plausible context.
6. The Complainant said that she was still intending to leave, and was finishing her cigarette. There is a further incongruity in her evidence of deciding to have a last cigarette before she left, and after she had announced to Stefan that she was uncomfortable and was going to "head of" (T 20/08/2020 p 39 ). Later she said she was frightened, and did not get up and go, because she was finishing her cigarette. However, when asked in cross examination whether she announced she was going at this point she said …"No, I didn't need to. Its none of their business what I do with my life". (T 21/08/2020 P 78). This contradiction is noted.
7. She denied any flirting after the incident of oral sex with Stefan, and denied she was flirting at that time on the balcony, although she said she "laughed awkwardly" at various jokes they were making about oral sex. The cigarette seemed to be taking a long time to smoke.

COMPLAINANT'S EVIDENCE RE SEXUAL ASSAULT

1. She said after the "only 1 man comment", Stefan called out to Jesse who arrived almost immediately, and stood in front of her while she was sitting on the couch. Stefan relayed the joke to Jesse.
2. In apparent response, Jesse said words to the effect of …"how big are your boobs. I want to touch them you've been hiding them away all night". He undid the buttons on her blouse (cardigan). She said she was uncomfortable, but apparently did not move away or protest. Jesse pulled her cardigan off her shoulders and placed his hand through the top of her dress inside her bra. She was challenged as to this detail. In her police statement she said her cardigan was removed at this point. In evidence in court, her final position was that it was pulled down, and she pulled it back up, and it was totally removed in the bedroom. This contradiction is noted. The Complainant does not refer to breast touching by Stefan.
3. At this point, she said that she felt uncomfortable and stood up, then facing Jesse who was standing in front of her, intending to leave but did not say anything. She described pushing between the 2 men and went to Stefan's bedroom in order to retrieve her bag and shoes. She sat on side of bed, closest to balcony door to put shoes on. It is not known how long it took her to put her shoes back on, but was apparently still sitting on the bed, apparently with her shoes on, (T 20/08/2020 p 44) when, the next thing she said happened was Jesse standing in the bedroom, at the balcony door. He said "Have you ever had a three way?" She said she shook head, but according to her evidence said nothing (T 20/08/2020 p 43). Stefan was in the bedroom and Jesse was standing about one meter away.
4. She said that she had her shoes on, still sitting on the bed. She does not recall anything about what happened between sitting on the bed, and being on her stomach, face down on the bed, with Jesse siting on her calves (later knees or thighs). She described herself as being frozen. She cannot recall how this happened, but was pushed or rolled over. Her cardigan was removed before she was placed on her stomach (T 20 August 2020 p 48). She could hear both men laughing. She denied a scenario where both men were kissing her on the bed.
5. When challenged on the sequence of events, she confirmed that when she made her police statement (T 21/08/2020 p 90 onwards) she said Jesse took off her cardigan and kissed her neck. She did not recall if this occurred.
6. She maintained that she felt the weight of him on the backs of her legs/ knees during the entirety of the assault. She said she tried to keep her legs together. She did not say where her arms or hands were. She denied she was on her hands and knees. She maintained throughout that she was flat on the bed, face down.
7. She was cross examined at length on the placement of Jesse and Stefan. She confirmed that at all times Jesse was on her legs/calves/backs of knees. Counsel tried to insist that the Accused's buttocks (rather than weight) on her legs. My observation is that although she agreed he was sitting on her legs, the emphasis was on Jesse's weight, rather than his buttocks on her legs (T 21/08/2020 p 92, 93, 94). The insistence of counsel that her evidence suggested Jesse was sitting on her like sitting on a chair was unhelpful and confusing. At one stage she referred to being straddled. Counsel's submission that this is anatomically impossible is rejected.
8. She became confused (and perhaps angry) in this part of the cross examination, but notwithstanding some confusion, maintained that she could feel his weight the whole time, not necessarily his buttocks. Importantly her emphasis was on her recollection of being face down, with all of her body flat against the bed.
9. She denied she assisted in taking her underwear off. She said that everything happened very quickly, and violently. It was put to her that she was on her hands and knees and assisted by moving her body in order that her underwear be removed. She denied that occurred. It was submitted that this event as described by her was physically impossible, but in the violence and speed spoken of by the Complainant it is difficult to tell when she said the underwear was removed. This is not, of itself, sufficient to undermine her credibility.
10. Her evidence was clear that she did not place herself on the bed and was manoeuvred by Jesse. She was referred to her police statement in which she said that Stefan laid down on her right hand side, and agreed that the statement is different to the evidence in court (T 21/08/2020 T p 90). She agreed that in her statement she said Jesse took off her cardigan, and kissed her but she could not recall the detail in court. She said that as at the time of giving her evidence in court she does not recall anything from being on the bed (putting on her shoes) to being pushed into her stomach, and agreed that she has a poor memory of that part. These discrepancies and in part real differences in her narrative as initially given and in her evidence are matters to consider when assessing her credibility.
11. When assessing her evidence, the detail of how she ended up on the bed, face down or otherwise is important, but the theme flowing through her evidence is that the event was quick and violent, and without consent, or inquiry as to her consent. Her position is that there was nothing in the events immediately before the sexual activity that could have been take as any sign that she was participating in the sexual "foreplay" (touching of breasts) willingly.
12. As to how she came to have Stefan's penis in her mouth she said: Stefan looked at Jesse and said "she's good at this", then Jesse grabbed her hair and pushed her head onto Stefan's penis; She said that she could feel two hands striking her legs, and butt and hips; She was apparently at this stage and at all times being required to have her mouth over Stefan's penis.
13. She was cross examined at length about the striking. Her evidence was that she could feel it most of the time throughout the time she was face down on the bed. It was put to her put to her that only one mild slap on the left side of buttocks, and later that Jesse slapped a couple of times with his right hand to her left buttock ( 24/08/2020 T p 29) and it was gentle. She denied this version and confirmed that slapping was almost continuous, all over her butt and legs and it was hard .Stefan described the slaps (referred to in plural) as "medium". He gives no further description.
14. The complainant was adamant that for the entire time the Accused was sitting or straddling (T 24/08/2020 p 11) some part of her legs. She said she was experiencing a lot of pain while being hit. She was also experiencing pain at Stefan's penis was in her mouth and hitting the back of her throat.
15. She was challenged on the physical feasibility of the Accused digitally penetrating her and later performing penile intercourse while she occupied this position. She did not confirm the suggestion that the hand being thrust in and out of her thighs caused considerable rubbing. When asked if her legs stayed firmly together she replied …"I tried to, yes … I did my best to keep them shut the whole time, and from my memory they were shut the whole time". She said that at some time she felt she was being hit with two hands or arms and that she could feel something in her vagina and assumed he had at that time penetrated her with his penis.
16. She was asked if she could feel the Accused's upper body on her upper body at that time and she replied …"I don't recall. I could feel him pushing my head down towards Stefan's penis, and he was hitting me throughout, while he was assaulting me" (T 24/08/2020 p 20).
17. After 4 or 5 minutes her evidence was: Jesse said "I'm going to come". She said that she became really scared, as she did not know if he was wearing a condom. Up until that time she was trying to convince herself it was only his fingers, and by her general evidence felt "frozen". By this she apparently meant that she did not physically resist the actions of Jesse. However when she heard that he was about to "come" she said she rolled off the bed and sprinted into bathroom, apparently concerned about the lack of protection. She apparently had no difficultly bringing an end to the activity at that point.
18. From the bathroom she made calls and texts to friends. (see complaint below).
19. It was put to her that she stopped the activity, (which up until then was consensual) because she felt humiliated by the laughter of the 2 men. She said that she may have thought they were laughing at her, but her feeling of humiliation was because of the rape, not laughter.
20. She denied that any part of the event was consensual or that she was consulted. She did not say anything and was "frozen". In general she "felt like she was going to die. ….. "While she I on bed with Stefan's penis in mouth I felt trapped. …..I felt that I had to do it or it would hurt more".
21. If the events occurred as stated by the Complainant ,the Court would have no difficulty in finding that both men were acting together, without consent to do the acts charged. The evidence of the Complainant if accepted, that the Co-Accused, Stefan called to this Accused, and the circumstance of them then acting together satisfies the Joint Criminal Enterprise requirement.

IMMEDIATELY AFTER

1. It was put to the Complainant that she could have sought assistance from the other girls in the house at this point. I draw no conclusions as to her credibility from this lack of complaint to people she did not know well, and who would be assumed, if they were present, to be friends of the Accused.
2. After calling friends from the bathroom, she said she went back to bedroom, in order to collect her things. Jesse was on bed masturbating, and she saw blood on the sheets. Stefan was not there. She said "Sorry about blood on sheets", but does not know why she said that.
3. She told the court that he said …"why are you crying, it's only a three way". He pulled her back on the bed. He said …"please touch me. I want to finish. I want to come Just a three way". She said she tried to zone out, laying on the bed. She was sobbing. Jesse denies this occurred. This evidence simply places the events of the alleged complaint and the next event in a timeline. It is puzzling why she would lie down again in these circumstances. Jesse was on the bed. She was standing, presumably getting her belongings. This apparent contradiction is noted.
4. It seems that at this point, Tyson telephoned. She went outside, got into the car with Tyson and Jad, and they went home. She said she cried all the way home. She contacted a work friend, Sarah, who took her to hospital a few hours later. This version of her presentation immediately after the event is corroborated by Tyson, Jad and Sarah. It is not apparently in dispute that she was very upset.

COMPLAINT EVIDENCE

1. The Complainant said that she ran immediately to the bathroom. She was crying and hysterical. After sitting on the floor for a while, she started trying to call friends. Apparently she also accessed her bank details and discovered she had no funds to catch a taxi. Her telephone records show the order of contact and are a more accurate record than her memory.
2. Evidence of conversations with the Complainant and her presentation at a time close to the event can be considered when assessing her credibility. The Complainant contacted many people shortly after the event. Some of those people gave evidence and statements were tendered by consent.
3. Her first call was to Yiffi Yu at 12.47 am. His statement (ex 21) included a recollection that the Complainant asked him to pick her up, but did not say why. He said she was whispering and sounded distressed. The Complainant says she told him of the assault. He did not confirm being told of an assault.
4. The Complainant sent a text to Sarah Veli-Gold at 1.06 am, but there was no response. The text said: I really need you. Ms Veli-Gold's statement was tendered (ex 18), and she also gave oral evidence. She did not see the text until the next morning when she telephoned the Complainant. The complainant said words to the effect that she went to a friend's who she trusted. She was getting together with one of them and then someone else came into the room. She didn't want anything from either of them as she was uncomfortable. They assaulted her. One of them inserted their fingers into her and that Jesse was awfully intoxicated. He was forceful. She was bruised and did not know what to do.
5. Ms Veli-Gold said her impression was that the Complainant was getting on with one and another person came in and she was not OK with it. The Complainant was breathless and emotional. She rightly took the Complainant to the hospital and remained with her during that time. She was very supportive.
6. At 1.15 am, presumably after not receiving a response from Ms Veli-Gold the Complainant called Tyson Yates. His statement (EX 16) states that the Complainant asked him to come and pick her up, and said she was at Randwick. At 1.18 am she text him 'I was raped'. He replied to the effect he was on his way. He telephoned her at 1.34 am when he arrived. Jad Sherhan was with him and confirmed in his statement that Tyson referred to the complainant being "raped or sexually abused, something like that". Jad confirmed that when they collected her, she ran to the car and was upset and crying. Jad Serhan's statement was tendered (ex 17). His evidence supports Tyson's observations and that when they got there MH "ran out of side entrance, crying. She said something like there were 2 guys and they hurt me".
7. Stacey O'Connor (Statement ex 19) A long term friend of the Complainant received a call at 2.17 am, but did not speak to her until the afternoon. She said that during that conversation (which was after the hospital visit) the Complainant reported she was with one guy, but only interested in kissing. He put his hand on her leg, and told her something else using the word 'assaulted'. She "had bruises all over her was crying through it, and that just didn't stop", and… "Jesse was ridiculously rough". ….. "The other guy was not being full on and at some points was just standing back"… After it happened … "Jesse said something like it was completely normal"… She kept saying "but Stacey I didn't say NO". This witness's impression was that she was trying to decide whether to go to police or not.
8. The Complainant gave evidence that she also called her friend, Jessie Christensen in Queensland, who's telephone number is saved as 'girlfriend' in her phone. The Complainant was very clear in her evidence that this call was from the bathroom in the house where the events occurred and that she was hysterical. She said she told Ms Christensen words to the effect of she'd been raped and told her that as at the time of the call she "was sitting on the bathroom floor and could hear them laughing at her". The words of the conversation are in general terms confirmed by Ms Christensen's evidence (statement ex D). The Complainant's evidence was that this phone call occurred while she was sitting on the bathroom floor, with her back against the door. The call lasted 7 minutes and a few minutes later called again and said she was out of the house.
9. In cross examination, it was put to the Complainant that this call was not made from the house at all, but was made at 2.14 am on the 16th April 2015, when the complainant was no longer at the Barker St premises, but at her own home, having been collected by Tyson at approximately 1.34 am. The call records confirm the timing. The explanation for this fabrication (which it is) was never satisfactorily explained. In torturous cross examination (T 24/08/2020 p 35-41) she variously said that she could not remember her evidence; that she was confused who she was talking about, that Ms Christensen told her to lie; and this insistence that she lie lead to the breakdown in their relationship. She said that she had told "her people" of this issue, mentioning "Sylvie and Deb", but when challenged on who she had told, retreated. I do not accept that she told anyone at the ODPP of this issue as she asserted. Her final position was that she knew the evidence to be false, and gave it in court never the less. I observed the Complainant closely as she gave this evidence. She was flustered, but no more so than in many other parts of the cross examination. The ease with which she lied to the court is troubling.
10. Ms Christensen also gave oral evidence. She confirmed that although she could no longer remember the phone call, she had given police accurate and true information when they prepared her statement. She was originally reluctant to sign it, as by the time it was sent to her, her own life had taken a very difficult course and she was overwhelmed. Her state of mind was such that she could not clearly recall the call when she gave her evidence 5 years later, but was confident that when she gave the information to police it was true and accurate.
11. According to Ms Christiansen, the Complainant and she spoke constantly every day for months after the event, and the Complainant was, according the Ms Christiansen, very demanding of her time and support, and talked about the event and the consequences for her ,constantly. The falling out, she said, had nothing to do with the contents of her statement, but more to do with Ms Christiansen's sheer exhaustion at being at the complaint's beck and call over many months. I accept this evidence.
12. The difficulty for a witness in this position is the same as the difficulty for other witnesses. It is possible the conversations they had after the event have distorted their memory, and even with an honest intention, they find it hard to distinguish what actually happened from what was later discussed.
13. The difficulty for the Crown is that evidence of the complainant relating the context and contents of the phone call only makes sense if the call was made at a time the complaint was still in the house. The telephone records make it obvious that this cannot be true. A phone call was made, but after the complaint returned to her home.
14. It is possible Ms Christensen and the Complainant recreated the conversation after the event, in one of their apparently numerous conversations when the Complainant was talking about her trauma. If this occurred, Ms Christiansen may believe that the contents of the conversation were as retold to her by the complainant, before she made her police statement. It is also possible the conversation occurred as recalled by Ms Christiansen, and the Complainant was fabricating the circumstances of her entrapment when she was speaking to her. There is no evidence to support either conclusion. The evidence does however not support the credibility of the Complainant in either scenario. This is a serious blow to her credibility as a whole. She told the court that she told an untruth, knowing it was untrue.
15. This underlines again the need for scrutiny of the Complainant's version of events.
16. The first person the Complainant gave any formal account of the events to was Dr De Cure, who she attended at the St George Hospital, accompanied by Sarah Veli-Gold the next morning. Dr De Cure's report (ex 7) is in 2 parts. The first part from her handwritten notes taken on the 16th April 2015, and the second part, a typed version with some addition taken from her memory and notes 17 months later.
17. In much of the report, the notes and evidence is consistent with the complaint's evidence in court. Those areas of consistency in either the report and /or medical examination are:
18. The initial report notes that the Complainant reported (in relation to penetration of her vagina) unsure if penile, digital or object. Unsure if ejaculation; 2 different people involved, pushed from behind, face pushed down by one assailant onto penis of the other, put in mouth. Slapped buttocks multiple times from behind. PV bleeding. This was not particularly a complaint by the Complainant, but is not inconsistent. The medical examination was consistent with this version.
19. Noted were the following injuries: Diffuse bruising and abrasion right buttock 12 x 8cm; small bruise elbow crease; small bruise deltoid, mild diffuse bruising under right thumb; small abrasion left knee. Genital examination noted a small graze on the right anterior labia minora.
20. No bleeding or injury was located on the complaint's lip which she had complained of, and no examination was made of her head which would have occurred if a complaint had been made of hair pulling. I accept that. There was a bruise to her right thenar (under the thumb) which was not remarked on.
21. The formal certificate dated 25/09/2016 expands on the notes. In oral evidence the Doctor stated that she formed the written report from her notes and memory. She said that she could recall the buttocks bruise as she was struck by the size of it. It was observed as a mixed lesion with bruising behind and an abrasion over the top of it, caused by friction on the surface of the skin. It was not well demarcated, but it was a large area, mixed (blue and red) in colour. The doctor recalled nothing else other than that the Complainant was of average build.
22. In addition the certificate states "She was pushed from behind onto her knees and was forced to perform oral sex on one … assailant by the other".
23. In cross examination Dr De Cure confirmed that a history is taken in large part to guide a medical examination, rather than a formal statement of complaint. The content of the complaint is however important. The doctor noted that there was a discrepancy in her contemporaneous notes and her expert certificate, (that she had not clearly documented that it meant she was pushed onto her knees), but agreed that she had sufficient memory to put it in the expert report. She believed that was what the Complainant was implying, that she was pushed from behind.
24. The Complainant was questioned about what she told Dr De Cure. It was put to her that she told the doctor that she was on her knees during this episode. She denied or did not recall doing so. She denied the accuracy of the words in Dr De Cure's certificate. She agreed that when she spoke to Dr De Cure she was unsure if the penetration she experienced was penile or digital or something else. She explained that at that time she was in shock.
25. The difference in the immediate notes taken by the doctor and the final certificate is not a criticism of the doctor's methods. She made an interpretation from her notes as to how an injury to the knee might have occurred. She said she recalled the event prior to signing her report, but her evidence is that it was the size of the buttocks bruise that stuck in her memory. The hand written notes do not include a complaint by the Complainant of being on her knees. I find that it is plausible, given the length of time between the examination and the certificate, that the doctor has assumed that she was pushed onto her knees, related to being pushed from behind. The friction abrasion on the complaint's left knee was minor. The doctor's evidence is that apart from friction, there was no indication of how it was caused. In light of the passage of some 17 months between the complaint and the certificate I do not find that the Complainant actually told the doctor that she was pushed onto her knees. The certificate contains an understandable but inaccurate assumption based on an interpretation of the injuries. It is not a matter of great significance.
26. The Complainant's main recollection of the hospital examination is that immediately afterwards she looked in the mirror, while still wearing her hospital gown, which was open at the back. Her evidence of what she saw was dramatic. (20/08/2020 T p 56) She said she could see …"actual hand prints on her legs and could see every finger, could see the palms and her legs were covered". Her responses in Cross examination on this issue (T 24/08/2020 p 26) was less clear and she avoided giving more detail as to the colour of the bruises she said she saw, but confirmed she could see the… "actual hand print and saw marks on both legs". The Complainant said that she showed her friend Yolanda these bruises. Yolanda did not give evidence. Sarah was at the hospital but no evidence was given that Sarah was shown these bruises.
27. The Complainant was cross examined on whether she told Dr De Cure of hair pulling and said that she did not notice hair missing until later. I find this lack of complaint to be surprising, given the Complainant's version of events featured the hair pulling as a method of forcing fellatio, and causing great pain.
28. Importantly however, the doctor did not observe any other relevant bruising on the complaint's back, legs or left buttock as referred to in the Complainant's evidence. On the description the Complainant gave, this thorough doctor could not have missed these marks if they existed.
29. There is no other conclusion other than that the complaint has significantly embellished her evidence about these bruises. The observations of the doctor are consistent with a hard blunt force trauma and a friction mark. This is consistent with one or more blows to the area.
30. The version given by the complaint as to what she saw in the mirror supports her version of constant, hard double handed hitting, all over her back and legs. However these marks, I find, did not exist. I find she has embellished her version about what she saw in the mirror so significantly as it amounts to a lie. There is no lesser conclusion available. There is no other conclusion other than this lie or embellishment is given to support her evidence of what happened in the alleged assault. It does not support the truth of her account, but raises a concern as to her honesty and/ or accuracy.
31. I direct myself as to the relevance of this complaint evidence. Its admission was not opposed in this case. It is neither "independent" nor corroborative of the Complainant's evidence but may be evidence of the truth of the complaint. Its value depends upon the truthfulness or accuracy of the Complainant.

STATE OF MIND

1. It is submitted by defense counsel that the state of mind of the complaint for the entirety of the short evening was that she was intent on casual sexual engagement. Counsel relies on the facts of bringing the overnight bag; her desperation for connection resulting in consensual fellatio earlier in the night; her bragging about being good at oral sex; and her flirting with Stefan and Jesse in various ways throughout the evening. The overnight bag is not evidence that this accused can rely on as he was unaware of it that evening. It had no relevance to him. It may be slightly relevant to the Complainants intentions that evening. I have found she did not sit on laps or dance.
2. There is a dispute in all of the evidence presented, of her alleged statement (which she denies) that she was good at giving blow jobs. Stefan's evidence is that this statement was made, but it was in the privacy of the bedroom. He did not give evidence that she said it later, or at any other time in the presence of others. His evidence is that he was with her most of the night. He said he did not tell anyone about it that evening. If it was said at all, the context of the statement and Stefan's evidence, only makes sense if it was said before the first consensual act occurred.
3. Kate's evidence is that the statement occurred on the balcony. She went to bed at about the time of the first sexual event between Stefan and the Complainant, so the reference is before that time. Further observations on her evidence follow in the context of to count 4.
4. Jesse's evidence is that after he and Brenton came up from downstairs, he was back on the balcony area, and the complaint was flirtatious and at that point said words to the effect of …"I'm good at giving head jobs" (T 1/09/2020 P 13& 14). He said he was reminded of this statement when Kate mentioned it at Brenton's house of the 20th April 2017. I find that this supposed recollection is a fabrication. If Kate had heard such statement from the Complainant, it would have to have been before she went to bed. She left the evening's festivities when the Complainant and Stefan went into the bedroom on the first occasion, well prior to the uni student arrival, the "wrestle ' and before the 2 men and the Complainant returned to the balcony after some of them were downstairs.
5. Brenton did not give evidence of hearing anything like this proclamation. He was with Jesse for most of the evening. His evidence is that the Complainant was "comfortable" and he seemed confused and uncomfortable that she had visited at all. He does not recall her being "flirtish" (T 31/08/2020 p 59).
6. I find that the Complainant did not brag to the group about being good at head jobs. She may have said it in a private conversation with Stefan, but this is irrelevant to the events of that evening, as he did not relay this conversation to anyone that evening. Stefan may have told people on the 20th April 2017. This observation is relevant to count 4 and further discussed later in this context. I find the Complainant did not flirt with Jesse earlier in the evening in any way that he suggested.

AFTER THE EVENT

1. The Complainant said that after the event she became scared and had difficulty sleeping. She apparently continued to contact and rely on friends. I accept that her presentation and life has changed.
2. The Complainant said that after the event she did not go back to work, and went to the Northern Territory, with her estranged father a week or two later, because she was receiving treatment. Soraia Serhan ( ex 20 ) said she left 2 to 3 months later. Tyson said she left with her father, but did not specify a time. Optus records show use of her phone in Sydney up to mid May 2015. This issue was not raised with her in cross examination. The implication of the Complainant's rapid transfer to the Northern Territory is that she left because of the trauma of the event. It is not an implication that is of any evidentiary or inferential importance.

DEFENSE EVIDENCE

1. The Accused gave evidence. My observation of his presentation is that his answers were borne from little memory of the evening in 2015. This may be understandable, given the 5 years since the event, and the alcohol consumed on the evening. However, even allowing for this there are places where the Accused appeared to be evading answering questions completely. In general there was much that he said he could not recall. His evidence of the events earlier that evening is largely as referred to in discussing the Complainant's version of events. I do not propose to repeat it here. By and large the evidence of the Accused is that he had little to do with the Complainant in the earlier part of the evening, however maintained in his evidence in chief that she was flirting. This is not accepted and in my view a post event fabrication. He scaled himself as being "somewhat intoxicated". This self-classification is an example of his either lack of recall or lack of honesty as to the evening's events.
2. I will commence a reference to his evidence from the time after the fight.
3. His evidence is that he and Brenton came up from downstairs, where they had engaged in an innocent play wrestle. After that he was back on the balcony area, and the Complainant was flirtatious. At that point she said words to the effect of "I'm good at giving head jobs" (T 1/09/2020 P 13 & 14). He said he was reminded of this statement when Kate mentioned it at Brenton's house of the 20th April 2017. I find that this supposed recollection is a fabrication. My reasons are above and below. .
4. Jesse's further recollection is that the Complainant was sitting on the balcony with he and Stefan and was comfortable in both men feeling her breasts. He described her as giggly and flirtations. Jesse has no memory of how he and the other 2 got to the bedroom, but his version of events does not include a 20 minute hiatus as described by Stefan, in part of his evidence.
5. He said that in the bedroom he was kissing the complainant's neck, and she was responding. Stefan was also kissing her. Apparently there was no conversation.
6. Stefan took his pants down and laid toward the bed head. The Complainant got onto her knees and commenced performing fellatio on him. He was positioned on her left side, and fondled her breast with his left hand , which he also put on the back of her head from time to time. He denied any hair pulling. He said that she was responsive and assisted him in removing her underwear by moving her knees or legs.
7. He then digitally penetrated her vagina for some time. He slapped her on occasion, but did not say how many times. He said the slaps were gentle and playful, but not on her right, only her left buttock. He denied slapping her elsewhere. He reinserted his finger after each slap.
8. He said that the events came to an end (T 1/09/2020 p 21) when he caught Stefan's eye and the pair started laughing loudly at and with each other. He said that the Complainant seemed to think that the laughter was aimed at her and she stopped her activity. She moved away. All sexual activity ceased. She covered up and bit and said …"are you laughing at me?" She was starting to cry. He recalled the phone was in her bra. He did not give evidence of her using it in the bedroom.
9. Jesse said he did not have an erection that evening. He said that he did not (could not) penetrate her with his penis. After they started laughing and she stopped fellating Stefan, Stefan left the room and then the Complainant left. He remained. He recalled her coming back into the room to collect her bag. He recalled having a conversation about why she got upset, but denies touching or kissing her.
10. He could not recall anything else of the evening,

STEFAN'S EVIDENCE

1. Stefan's evidence in court was largely consistent with the contents of his ERISP given to police on the 1 May 2017. The ERISP did not refer to the wrestle downstairs. For the latter part of the evening he said he and Jesse and the Complainant were sitting on the couch together , the men on either side of her. They were having a joke about having a threesome. Everyone was flirting. They were laughing. At that time, both men were playing with the Complainant's breasts, without complaint from her. Stefan said that as far as he recalled both men were playing with her breasts on the inside of her clothing, observing they were … "just being boys" without further explanation. Stefan did not know where Breton was at that time.
2. After playing with her breasts and joking about having a threesome, according to his ERISP, there was some talk about bed and they went into the bedroom. In oral evidence he spoke of Jesse going to another part of the house, and he did not see him for about 20 minutes, and the Complainant went to the bathroom. The next time he saw them, they entered the bedroom door from the lounge room area, and were kissing. He could not recall who came in first. It was at that point that Stefan said he realised that the threesome they had previously joked about was going to occur and he lay on the top of the bed, and pulled his pants down. There is no explanation what Stefan was doing immediately prior to this other than thinking it was time he went to sleep. He denied the Complainant's version of events. The difference between his ERISP version and the version in court is noted.
3. Stefan confirmed that the Complainant performed fellatio on him entirely voluntarily as she had previously that evening. The evenings sexual activities came to an end because he and Jesse stated laughing, not he said, at the Complainant, but at the ridiculousness of the situation, referring to undertaking this activity with Jesse. He was situate on the top of the bed, parallel to the bed head. He was lying on his back. He observed Jesse use his fingers to penetrate the Complainant's vagina. He demonstrated this action in his ERISP (ex G). His evidence was that he knew that Jesse's penis was flaccid, as he could see it and it seems the lack of erection contributed to the humour.
4. When they started laughing the Complainant stopped what she was doing, and started crying. He said that they both (he and Jesse) tried to console her for some minutes, while she did some texting on her phone. She was upset and crying, and Stefan then left and went to Kate's room. He remained there 20 minutes or so. It was put to him he was hiding. This is fair description of his activity. He seemed to be incapable of dealing with the situation that had arisen.
5. When he went back to his room, no one was there.

SUMMARY

1. There are there for 3 entirely different version of the event. Stefan's oral evidence is that there was laughing and breast touching by both and joking about three-way sex well before the complainant and Jesse commenced activity by entering the bedroom where he was alone. He acquiesced by joining in and lying on the bed, at which point the Complainant voluntarily placed her mouth over his penis and while on her hands and knees on the bed and performed fellatio on him. He said that he observed Jesse's penis to be flaccid and recalled him " slapping" the buttocks of the Complainant a number of times, but they were playful slaps, not hard but "medium". His version in his ERISP is slightly different in terms mainly of a lack of delay before they go to the bedroom together.
2. Jesse on the other hand has all 3 participating in mutual kissing before they lay down on the bed , and the Complainant commenced fellatio on Stefan , while on her hands and knees , which he watched, before rubbing her left breast, and then participated by gently pushing her head down while she was performing fellatio. He said that he did this in order to join in with what they were doing. He said he placed his fingers of his right hand inside her vagina, after she assisted him in removing her underwear, by manoeuvring her knees to assist. He slapped her on the buttocks, an unknown number of times, but not hard.
3. The issue is in what circumstances all 3 ended up in the bedroom. The later version given by Stefan is objectively far-fetched in that there is on his recollection a 20 minute hiatus during which time he was alone in his room thinking about sleep. His evidence is that he was simply a reluctant participant in the sexual activity, and in effect joined in with an erect penis because the other 2 seemed to expect it. The version given in his ERISP related all three becoming sexually excited out on the balcony, then not long after adjourning to the bedroom.
4. Jesse's evidence has many gaps. He relies on the Complainant's flirtation immediately prior, while he and Stefan were fondling her breasts as justifying his belief that she consented. Most of the circumstances that he sought to rely upon of events earlier that evening are not capable of acceptance. However, the congruence of some of the detail of Jesse's and Stefan's version cannot be discarded. Jesse has significantly understated the force of his physical assault on the Complainant.
5. I acknowledge it is not a matter of choosing the most plausible version of events. The complainant's evidence is such that in many areas it is contradicted. The evidence of Stefan and Jesse is not consistent with each other. These are considerations that will be examined.

DELAY

1. The Complainant said that she commenced a journal, which was not otherwise referred to and commenced her SARO in late 2015, completing it in February 2016. She first went to police in mid July 2016. She said she decided to formally complain as she did not want anyone else to experience the same thing from the Accused. The SARO is not an exhibit, but was available to defense and she was questioned on its contents. There are important differences which were the subject of exploration. Not all were able to be explained by memory retrieval.
2. The issue of delay does not diminish the credibility of the Complainant, taking into account the prompt medical examination and other complaint evidence.
3. However, it is a matter of some relevance to the evidence of the Accused and an assessment of his recollection and of the recollections of those who were there that evening. The only forensic evidence that may have been useful is the evidence of blood on the sheets. However the minor injury to the complaint's genitals supports that this might have occurred. Blood on the sheets alone however does not enhance the Crown case.

CONSCIOUSNESS OF GUILT

1. A feature of the Accused's evidence relates to his behaviour after he became aware of the allegation. He assumed that Stefan had told police that he sexually assaulted a girl. That assumption led to a series of lies and other behaviour resulting in further charges.
2. It is conceded that the Accused told lies in his ERISP of the 20th April 2017. He has also pleaded guilty to count 3, the charge of perverting the course of justice in relation to Brenton Pearce. He is charged with a similar offence in relation to encouraging Kate Thurlow to tell police an untrue version of events.
3. The Crown submit that all three events will lead the court to consider whether these acts, or any of them are evidence of the Accused's guilty conscience with respect to the charges of sexual assault offences. If so, I can take that finding into account when considering the evidence of the Accused. I acknowledge it cannot by itself prove the guilt of the Accused with respect to the sexual assault charges.
4. I acknowledge that in order to consider this I must be satisfied that the lie (in the ERISP) was told for the reason of attempting to avoid being implicated in the commission of the offences for which he is now on trial AND that he lied deliberately.
5. The lies the Accused told police relate directly to the current offences. The current offences were the subject of the interview, and the Accused had already considered that the event of the threesome would be the subject of his own interview with police. At that time he was not aware of the detail of the charges. It is submitted he simply panicked and as a result lied due to his panicked state and poor recollection. I accept that his recollection was very limited. There were and are many things that occurred that evening that may result in the Accused being ashamed of his behaviour. I find that this explanation is plausible. The interview occurred before the meeting on the 20th April, when all concerned got together to pool their recollections.
6. In some form during his ERISP he exercised a right to silence, and offered no comment, or stated he could not recall. In the circumstances of that interview he certainly lied, but I cannot find to the required standard that his memory was such that he knew why he was lying. Both panic or lack of recall are possible explanations. This is not a matter that will be reflected in a finding on his credibility.
7. In relation to the Pervert charges, I must be satisfied that he was instrumental in attempting to or in fact influencing Brenton Pearce and/ or Kate Thurlow to tell lies to police , and if he did so, the purpose was again to avoid implication with respect to these offences.
8. Brenton Pearce admits he told police lies. The telephone calls the subject of the intercepts support and give context to the development of the lies. His evidence in court provides further information as to his own and the Accused's intention at the time. The actions of each is also evidence of their intentions. I have considered all of these matters.
9. It is submitted, and Brenton confirmed that he saw himself as something of a fixer of other's problems. It is the case that Brenton volunteered an alibi of being on the central coast. However at the time of that conversation the Accused was well aware of the fact that he had been involved in sexual activity with the Complainant and the co Accused. He told the court that he did not know whether he went to Brenton's home later on, but he was well aware that he did not leave with him before the sexual activity. Rather than encourage Brenton to tell the truth, he acquiesced with his suggestion. However there is no doubt in my mind that if the Accused had said either …"do not say that", or …"it is not necessary to say that", Brenton would have complied. This was is an example of the two men deciding together that Brenton ought tell a lie to police. Brenton had little regard for the administration of the law, and had no hesitation in doing what he thought would assist his friend. The Accused similarly had little regard for the administration of justice or truthful statements to police .In recognition of this he rightly pleaded guilty to this offence.
10. It is submitted that he simply acquiesced in Brenton's lies at his friend's enthusiastic suggestion. Brenton was enthusiastic, but the enthusiasm was aimed at assisting his friend who he feared may have done something wrong. If the Accused at that time believed that the acts with the Complainant were consensual, I find he would have simply told him friend to concentrate his memory on other parts of the night, rather than create an entirely false scenario. In this circumstances, the acceptance that he perverted the course of justice is some evidence of his guilty conscience for the charged offences. He could have been feeling guilty about many parts of the event.
11. The situation with Kate Thurlow is similar. There is no doubt in my mind that the meeting on the 20th April 2017 was arranged so that the attendees could discuss the evening, hear what Jesse had to say and as Brenton frequently stated, to get their stories together.
12. There is no evidence that Kate attended with an intention of participating in manufacturing an alibi or false evidence. The recollections of all who attended the meeting is that she and Stefan arrived and left together. She did not say much. During the telephone call with Kate on the 28th April 2017 (p 74 MFI 5) the Accused reminded her of the discussion. He said "the girl was sitting on laps", (both inside and outside), she was being "flirtish, sitting with legs intertwined". Kate did not include any of these suggestions in her evidence, and when she asked the Accused if she was there for that, he replied he did not know, as he could not remember seeing her the whole night. Kate responded …" I'm just going to say she was bragging about giving head, because she was" As discussed above, Kate could not have heard this herself, as if words to that effect were ever spoken, they were spoken to Stefan, much earlier in the evening, when Kate had gone to bed or was not present. Her "recollection" is therefore false. It may be that when having their conversation she believed it to be true. I do not know, and that is not a question for me at this stage. However, the Accused could not remember Kate even being there that night.
13. As at the 28th April 2017, he was seeking to create a version of events that would mask or confuse the events of that evening. There was I find, a consciousness of guilt about the sexual events of the evening, if not the actual charges. At that time I find that he probably had a vague recollection of the events, prompted by his conversations with others. His memory remains poor.

INCONSISTENCIES IN THE COMPLAINANT'S EVIDENCE

1. The medical evidence does not support the complainant's evidence that she was hit all over her back and legs, nor her evidence that immediately after the medical examination she looked at herself in the mirror and saw hand prints and bruises all over that area. While I accept and find that non-consensual slapping which was hard, occurred to her buttocks area more than once causing the injury noted in the medial report, I do not accept that she saw all over bruises and hand prints. This evidence is invented, and diminishes her credibility. It is a significant exaggeration by the Complainant. It cannot be explained by the observations in Dr Pullmans' report as to memory recovery, or the behaviour of people who have suffered traumatic events. This must be considered when assessing the honesty of her evidence as a whole.
2. Her recollection that she was subject to penile penetration evolved over time. Initially she said she felt something in her vagina. Then she could feel 2 hands so she came to think he had placed his penis in her vagina. Strangely she said at this time …"I could feel that there was something inside my vagina that I did not say yes to, or say anything to, and it was then that I realised that when he started hitting me with both hands again, it was then I realised that he had actually had his penis in me" (T 20/8/2020 p 47). Later in her evidence (T 20/8/2020 p 49) she said she tried to convince herself he didn't have his penis in her, only his fingers. She has used an assumption to come to the conclusion of penile penetration. I do not know if it occurred or not. It might have.
3. The relevance of the allegation of penile penetration is whether Jesse had his penis in her vagina when he said he was going to come. He denies he said this and Stefan denies hearing it. It is important because she said the words prompted her flight to the bathroom. If there is a reasonable doubt about this area of her evidence it presents a difficulty for the whole Crown case.
4. This evidence must be assessed in the light of the 5 years passing since the event, in which time the Complainant has apparently discussed the event many times with a number of people. It is sometime that case, as Dr Pullman states: In studies of memory for negative experiences, participants remember highly relevant details of the experience, memory for minor details was also found to decay more rapidly from memory. Thinking or ruminating about events, also known as rehearsing generally increases the durability of memory.
5. The complaint's recollection however seems to be not such a memory, but a conclusion drawn from a series of memories and assumptions. In relation to penile entry, the complainant said she thought it occurred …"because it felt different" (to the previous digital penetration).
6. On the whole, considering the Complainant's uncertainty at the time of the complaint to the doctor and further discussion later, it is difficult to accept that the penile penetration occurred. The assumption of the complainant that it occurred was because she heard the words, apparently from Jesse that he was going to come. The statement of 'going to come' has assumed great importance as it motivated her departure from the bedroom. The alternative (laughter) explanation is also plausible. It is agreed there was laughter.
7. The suggestion that the Accused's penis was flaccid is evidence from the Accused and Stefan. It is referred to in the telephone calls. Counsel submitted that the inability of the Accused to maintain an erection was due to his alcohol consumption, but the Accused only places his level of intoxication at " somewhat". Stefan states he was "medium". The ability of a young male to obtain and retain and erection was not the subject of evidence, however there is sufficient evidence to accept that he could not do so that evening. He was happy to advertise this fact to his friends in a telephone call (MFI 5 - Call to Goodwin p 49).
8. The Complainant said that, slapping and hair pulling was major sensation. I observe that no complaint about hair pulling was made to the doctor. There is no dispute that at some time Jesse did hold her head. He denies pulling her hair. I accept the Complainant's evidence that she felt it, but as she did not complain to the doctor about it, I find it is an exaggeration.
9. She said that she tried to keep her legs together. It is obvious that she did not achieve this at all times, as at least digital penetration is not an issue. She described herself as "chubby", and by others as big. The ability of her actually being able to keep her legs together when lying face down was not explored. She said that the weight she felt was continuous. It is submitted that this would make taking her underwear off impossible, unless she assisted, or the Accused removed himself. This submission has some cogency but the Complainant did not specify when this occurred. It is of little weight.
10. There is no dispute of digital penetration. Of some importance is the evidence from all three that the Complainant was performing fellatio on Stefan throughout. While I do not accept the submission that digital penetration is impossible with the Complainant lying flat on the bed, the performance of fellatio in those circumstances, while Stefan is lying on his back is difficult to imagine, as is penile penetration if the Complainant remains in that position with the weight of the accused anywhere on her legs.
11. I have rejected the proposition of bragging by the Complainant, or sitting on laps or flirting earlier in the evening. The Accused did not recall having much engagement with her earlier in the evening. The suggestion that the Complainant was flirting with him and Stefan towards the end of the evening is scant, but the Complainant's version of events after her return to the balcony with Stefan is also replete with inconsistencies.
12. There are many areas of the Complainant's evidence supported by independent evidence. Much of it is not in dispute. Her recollection of presence of younger students, and various men drinking beer bongs is largely not in dispute. The time, place and participants in the sexual activity is not in dispute. The actions of fellatio and digital penetration are not in dispute. Her memory for much of the evening is at least as accurate and probably more accurate than many other witnesses. Her truthfulness is in question.
13. Of concern it her apparent tailoring of some her evidence in areas which are important to the question in issue, that is whether she consented to the sexual activity that occurred.
14. At the point in her evidence, where the Complainant was talking about the "only 1 man conversation", which was shortly prior to the sexual activity on her version, she digressed to talk about her theory that the sexual assault occurred due to her admission to Stefan that she had broken up with a girlfriend, therefore the sexual assault had something to do with her being a lesbian. This part of the Complainant's evidence became almost incomprehensible. Taking into account this evidence, the lying about her conversations with Ms Christiansen and the evidence of Ms Christiansen, it is obvious that the complainant has ruminated and talked about the events of that evening apparently continuously, to many people. As a result, her version of events has altered. It may be that as Dr Pullman suggests ruminating about events generally increases the durability of memory, or it may be that a reconstruction of what has been said before has resulted in a better, but not necessarily truthful version. This observation underscores the need for the trier of facts to be extremely careful about accepting her evidence without acceptable corroboration where it is expected to exist.
15. While I accept that the Complainant, who gave evidence over 4 days, was no doubt tired and emotional, the conversations she has had about this case effected her evidence in court. Even allowing for the caution in Dr Pullman's evidence that a self-contradiction or prior inconsistent statements are fundamental features of human memory, it causes concern when assessing the truthfulness of the complaint's evidence.
16. The same observation of discussions about evidence causing confusion, is true of many defense witnesses, however as the burden of proof is on the Crown and the Complainant is the principle Crown witness, her credibility is very important. The main participants during the events of that evening, Jesse, Stefan, and Brenton Pearce, Kate Thurlow, to a lesser extent have discussed the events of that evening to such an extent that , as Brenton admitted (see above) that he had difficulty in distinguishing between his memory of what actually happened and what the witnesses discussed about the evening in 2017. This is unsurprising considering the evidence is being given 3 years after the conversations and 5 years after the event. In addition the participants, especially Jesse and Brenton were under the influence of alcohol in 2015. The inhibiting effect of alcohol on memory is well known.
17. In explaining some of her memory gaps the Complainant told the court that some aspects of the night she cannot recall, and understandably does not know what she can't recall. Unprompted she referred to a potential autism diagnosis, and PTSD. Dr Pullman explained that in terms of presentation and memory, the syndromes present in similar ways. It do not see how this is relevant, other than to explain how, after an event 5 years prior, where on any version of events, the complainant was very distressed her memory is patchy. However, notwithstanding this apparent difficulty, she correctly picked that the photograph of the lounge room contained one extra chair to the configuration 5 years earlier.
18. In summary, the Complainant's evidence contained some features that were as accurate and consistent as one would expect from relaying the circumstances of 5 years prior. Her evidence is partially supported by her complaint to the doctor of some of the important details of penetration. Her distress as noted by Tyson and others supports her upset at being slapped and as she said sexually assaulted. The observations of the doctor support the slapping allegations, but not the extent of the assault and are not relevant to consent.
19. Her evidence about Jessie Christensen was a lie, and an important stain on her credibility, for reasons mentioned above. Her evidence about the marks she saw on her body, similarly were untrue .This causes great difficulty in accepting her as a witness of truth. There are some areas of her evidence where unimportant inconsistencies exist. However where important differences occur, her honesty as a witness is important.
20. In deciding whether the Crown has proven its case, I return to the significance issues now with my findings.

SIGNIFICANT MATTERS IN ISSUE

1. Q - Whether the Complainant said to the group at any time that she was good at giving blow jobs? A - NO.
2. Q - Whether and in what circumstances the Complainant was behaving in a flirtatious manner towards the Accused? A - The Complainant was not behaving in a flirtatious manner towards the Accused in the earlier part of the evening. Later it is possible she was persuaded to accept sexual advances from both, he and the Co-Accused.
3. Q - In what circumstances did the Accused and Stefan accompany the Complainant on the balcony after the Accused returned from downstairs? A - After she and Stefan returned to the balcony, it is possible that she acquiesced in some flirtation with both men, while there was discussion about relationships and sex. She possibly acquiesced to the Accused and probably Stefan touching her breasts. She did not indicate any discomfort with this activity.
4. Q - Did an incident occur in the toilet and was it significant? A - Yes an incident occurred. It was not of great significance.
5. Q - Whether the Accused penetrated the Complainant's vagina with his penis? A - I cannot be satisfied that this occurred.
6. Q - In what circumstances did the Accused slap or hit the Complainant during the course of the sexual activity? A - The Accused hit the complainant on the right buttocks at least twice. The hits were very hard and without consent.
7. Q - In what circumstances did the sexual activity event stop? A - I cannot be satisfied that the activity stopped when the Accused said he was going to come. It is possible the Complainant stopped the activity when the two men laughed.
8. Q - In what circumstances did the Complainant leave the house? A - She was collected by Tyson after calling him. She called him about 25 minutes after the sexual activity stopped.
9. Q - Did the Complainant complain about the event shortly after it, and do those complaints support her credibility? A - As a whole, the complaints support sexual activity, and activity in which the Accused was intoxicated and rough. The complaints support the Complainant's distress in general, but not the detail of the events complained of nor whether she consented or not to the activity.
10. For these reasons I cannot therefore be satisfied to the required standard of the issue of lack of consent.

Further Relevant Evidence

1. Detective Ward told the court that the complainant first met her on the 8th July 2016. She arranged for telephone intercept warrants for the Accused telephone, and on the 13th April 2017, left a telephone message referring generally to the complaint. The telephone intercepts were played, during the evidence of the participants in the calls, including the Accused, Jesse, Brenton Pearce, Stefan and Kate Thurlow. The transcripts are marked MFI 5 as an aide memoire.
2. The telephone recordings are relevant to an assessment of the cogency of the Accused's evidence in relation to Count 4
3. The Accused's first action on receiving a message from police that they wanted to talk to him was to telephone Brenton Pearce, and tell him in general terms of his belief that police had spoken to Stefan, and his assumption that Stefan had told police something to be damaging, and directly related to sexual assault (MFI 5 p 9).
4. This is evidence of Jesse beginning the process of discussing with Brenton the extent of the lie they would fabricate in order to pervert the course of justice, the charge that Jesse has pled guilty to. It is evidence the court can take into account together with the meeting arranged by the Accused at Brenton's home on the 20th April 2017, when considering count 4.
5. After this initial conversation with Brenton, the Accused attended at the police station and underwent an interview, on the 20th April 2017. In that interview (ex 10). He lied in areas referred to above.
6. The telephone call on 23/04/2017( MFI 5 p51) with Isaac, the Accused states that he needed to go back to police an rectify his statement, because …"all the boys got together and we've put together the same story… and the three of us say she up there fucking siting on our cocks, then fuck she got no leg to stand on". It is observed that he did not include Kate in this scenario. Any reading of this conversation confirms a clear reference to the intention of the Accused to be part of the perversion of the course of justice by participating in the invention of the story with Brenton and others, in order to ensure that the Complainant was discredited, in that she was behaving in a way that indicated she …"wanted it".
7. This is evidence of the Accused's intention and his state of mind in general between 20 and 28 April 2017.
8. The phone call with his cousin Kate occurred on April 28 2017 at 9.31am. It is admitted by Kate that she attended a meeting at Brenton's on the 20th April with Stefan. Benton's recollection of that meeting is that Kate did not have much to say. As noted above, I find that Brenton invented the story about sitting on laps. In the telephone call the Accused reminded Kate that at that meeting it was discussed and agreed that …"we got the girl sitting on our laps while we were playing FIFA, siting there with legs intertwined." Kate made no comment on this. But said "I'm going to say she was bragging about giving head coz she was". The Accused replied …"yes she was… love you Kate."
9. The telephone intercepts covered a few weeks after the Accused was told of the complaint. In the calls the Accused made several admission to sexual activity, which he seemed to remember. He told Ben Goodwin (MFI 5 p 49) in relation to the meeting on the 20th April… "Steve said she was talking about how good at head she was apparently". This telephone call occurred after the meeting at Brenton's house.
10. This observation that it was Stefan who said she was talking about head jobs is important. He did not say that Kate mentioned this. The addition of the word "apparently" indicates that this information was a revelation at the meeting on the 20th April 2017. This conversation confirms that Stefan and Brenton made important contributions. As noted above, the only time Stefan said that the complainant had any conversation of this nature (which she denies) is in the privacy of his bedroom, with the door shut. Kate was not there. Jesse was not there. The only person that Jesse referred to in the phone call to Goodwin as having recalled this statement was Stefan.
11. The difficulty with the evidence of Kate Thurlow is that on all of the evidence before the court, she left the others on the balcony, at a time when Stefan and the complaint first went into the bedroom. Stefan said that it was the complainant who made a comment that she was good at giving blow jobs, or words to that effect in the bedroom. Stefan at no time says that this statement was said at any other time.
12. Jesse said in his evidence that the statement was made after he and Brenton had come back upstairs after the "wrestle" down stairs. By that time, it is consistent in the evidence of all who were there that Kate was long gone.
13. The statement bragging about "how good she was at blow jobs", if it occurred at all cannot have been heard by Kate. Her evidence was therefore not able to be accepted. If she recalls it at all, it must be from the meeting on the 20th April 2017. Her evidence (T 31/08/2020 p 28 & 29) states the comment to be … "a standout memory" for her. It is a little confusing whether she means a standout memory of the 20th April 2017, or the 15th of April 2015, but even if she meant 2015, her evidence cannot be true. It may well be that the "blow job" comment was spoken of on the 20th April 2017.
14. Having made that finding, there is no other interpretation to be placed on Jesse's phone call to Kate Thurlow on the 28th April, that he was asking her to tell police a version of events that had been invented at the meeting on the 20th April. He said (p 74) …"Just the main thing I suppose that you got to say is um, that the girl was sitting … cause what Brent said is that she was sitting on our all of our laps and um, when we were playing FIFA and then when we were outside on the lounges as well. She was being flirtish. She had her overnight bag um, yeah. We were sitting like her legs intertwined, Brent said that just all that…"
15. The plain meaning of these words is that he was requesting Kate to say all of those things. The words "you got to say" can mean nothing else. When her response was whether she was there when this occurred, he replied that he did not know. Kate then said …"I'm just going to say yeah well that's the truth. I'm just going to say were playing FIFA and I'm just going to say she was bragging about giving head, cause she was". However as observed above, it was Stefan who mentioned this event at the meeting, not Kate. No one else at the meeting mentioned Kate saying this. It was not a genuine recollection. The Accused knew that. He asked her to tell police one of Breton's inventions. Kate did not respond that she would, but agreed to tell the police one of Stefan's recollections. The Accused appeared satisfied with her response saying "How good she was at head, yeah" Kate responded that she went to bed after … "she disappeared into Steve's room". The Accused said "Yeah, yeah, cool….".
16. Kate did not include in her statement evidence of lap sitting as requested, but did give evidence of the other suggested statement, which I find was equally false.
17. The Accused knew both scenarios were false. One manufactured by Brenton and the other possibly true, but not heard by Kate and not heard by him. The Accused's knowledge that this is evidence was false is taken from the plain meaning of the conversation referred to above with Goodwin.
18. If any more evidence is required there was a later reference in the Accused's conversation with Stefan on the 1st May 2017 (p 81) where he said …"Did Kate emphasise that the girl was talking about giving head and shit like that?". In response to Stefan saying …."(Kate) was like I don't know, I wasn't even……. I was in bed"
19. In the context of the s319 offences, it does not matter whether the offending conduct brought about a miscarriage of justice. It is the doing of the act,( in this case encouraging Kate to lie to police) intending to pervert the course of justice that is decisive [Rogerson v R [1992] HCA].
20. There is no other possible interpretation to be put on the Accused's words other than he intended to bring about a diversion of the police investigation. His later conversations underline the intention in the previous phone calls.
21. The only conclusion that can be drawn from these conversations is that they provide overwhelming evidence of an intention to pervert the course of justice, by asking Kate to tell lies to police, The fact that she did not tell all of the lies he tried to remind her about is immaterial.
22. The Accused's explanation that he only urged her to tell what he believed to be the truth is contradicted by his own words. His evidence that he would not expect her to say something untrue is rejected. She is obviously fond of him and he took advantage of that.
23. In relation to the allegation of pervert the course of justice, the following matters are in issue: 1. What was the purpose of the meeting on the 20th April 2017? I find the purpose of the meeting was for all attendees to be given information about the allegation and exchange information about what their recollections of the event were. Information was exaggerated and arrangements were made for lies to be told to police. 2. Did the Accused request or encourage Kate Thurlow to lie to police in her statement? Yes 3. Did he know what he was asking her to tell police was false? Yes 4. An ancillary but not determinative consideration is whether Kate Thurlow told an untruth (knowingly or not) in her police statement? I find that she probably did.
24. For these reasons I find the Accused: 1. Count 1 - Not Guilty 2. Count 2 - Not Guilty 3. Count 4 - Guilty.

Amendments 25 March 2021 - adjustment made pursuant to s578A of the Crimes Act 1900 (NSW) 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: 25 March 2021