Regina v Habib

Regina v Habib - [2005] NSWCCA 223 - NSWCCA 2005 case summary — Zoe

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Background facts 5 The appellant was employed as a carer for disabled people at premises at Winston Hills. On the day of the alleged offence, 15 November 2002, the complainant was employed in a similar capacity. Both the appellant and complainant were employed through an agency named Edmen Employment Agency. 6 The complainant gave evidence that the first occasion on which she worked with the agency was 25 October 2002 when she worked at premises at Baulkham Hills. The disabled people, referred to as "clients", of those premises suffered from cerebral palsy. On that day the appellant was also present at the house. One of their joint duties was to take the clients to Rooty Hill RSL Club to play poker machines and have lunch. On that occasion the appellant and the complainant had some personal conversation and the appellant told the complainant about himself. 7 A couple of weeks later the complainant and the appellant again worked on the same shift. On this occasion the appellant asked the complainant if she would join him for lunch. The complainant initially said "yes" but changed her mind and declined the invitation saying to the appellant that "I've got other things to do." After they had completed the shift on that day the appellant drove the complainant a distance to a bus stop where she caught a bus home. 8 On the day of the alleged offence, the complainant was rostered to work from 4 pm to 10 pm at Winston Hills House. She arrived at 3.40 pm when another worker and the appellant were present. There were four clients in the house each of whom had cerebral palsy and could not speak or walk. 9 The house was comprised of five bedrooms, a lounge room and a kitchen. One of the bedrooms was the office and staff bedroom which was used by a staff member who was rostered for night duty which required that person to sleep on the premises. 10 The complainant commenced her duties which included showering the clients and putting them to bed. She was wearing a grey shirt, jeans (described as stretch jeans) and joggers. At about 7.30 pm the appellant called the complainant into the kitchen and told her that she should complete the housework required of her before talking to the clients. The complainant apparently thanked the appellant for the advice and remarked that she was only new to the job. 11 Just before 10 pm the complainant received a phone call from her boss, Frank Barila from the Edmen Employment Agency. He told her that her shift the following day had changed from a 5.30 pm start to a 7.30 am start. After she hung up she spoke to the appellant and told him about the change of shift. The appellant then suggested that the complainant should stay the night at the house. The complainant said "no" she had a morning shift and her next shift was a sleep over and she had to get home to gather things. The appellant said "it's okay, just sleep, spend the night" and the complainant said "no" again. 12 Mr Barila rang a second time and informed the complainant that her shift for the following day was to change again and she was to commence work in the afternoon. The complainant told the appellant of this change in her roster which, of course, meant she did not have to commence work the following morning. The appellant then suggested that the complainant should stay back that evening which she agreed to do saying "Yes that I'd stay back, but only for a little while".

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The Crown evidence 13 The complainant gave evidence that having decided to stay back she made a cup of tea and sat herself on the couch in the lounge room. The appellant sat on the other end of the couch and they were separated by some cushions. The complainant gave evidence that the appellant then asked her questions including whether or not she had a boyfriend. She replied to that question: "No, I just broke up with my fiancée a couple of months ago." 14 She was then asked: "Q. Did he say anything further? A. Yeah, he said, "Why am I still single, am I scared of guys or something." Q. What did you say? A. I said "No, I'm happy being single." 15 The complainant then said that the appellant moved the cushions which separated them on the couch and gave the following account of the incident: "Q. After he did that did he do anything else? A. Yes. Q. What did he do? A. He reached across and grabbed me. Q. Did he say anything at that time? A. No. Q. How did he grab you? A. He grabbed the top of my arms. Q. When you say the top of your arms, can you just indicate what you mean by that? A. There. Q. You have indicated your right arm? A. Right, yes. Q. Near the shoulder? A. Yes. Q. You have indicated he grabbed the top part of your arm, what did he do? A. He then slung me onto him facing him, and then he started kissing me. Q. Did you say anything? A. Yeah I told him to stop and that I wasn't like that. Q. What did he do when you told him to stop and that you weren't like that? A. He didn't do anything, he kept on going. Q. And did you say anything further to him? A. I kept on saying that I wasn't like that at all, and to stop. Q. While he was kissing you did he have his hands on you? A. Yeah he was holding me like a bear hug. Q. Where were your legs at that point in time? A. I can't recall. Q. How did he pick you up? A. He reached and grabbed me. Q. How? A. Reached over and grabbed me towards him. Q. By what part of your body, what part of the body did he grab? A. My upper body. Q. Did you try and do anything? A. I tried to get away, but I couldn't move. Q. Why couldn't you move? A. Because he was holding me and I was scared. Q. What did Mr Habib then do? A. He reached down my top and started feeling my breasts. Q. Was there anything said at that point in time? A. He did say at some stage that I looked beautiful, but that was it. Q. What happened next? A. He pulled my jeans down and his tracksuit pants and he put his penis in my vagina and started moving. Q. Were you wearing underwear? A. Yes. Q. Did he do anything with respect to your underwear? A. He pulled it down. Q. Did you say anything at that point in time? A. I had kept on saying 'stop' during the whole thing, but he didn't, wasn't saying anything. Q. And how did you feel when he grabbed you and put you on his lap? A. I was very scared. Q. Did you scream for help? A. No. Q. Why not? A. Because I was scared and didn't know what to do. Q. Did you try to get off Mr Habib? A. Yes. Q. And how did you do that? A. I tried to move away but he just kept holding me tighter. Q. For how long did Mr Habib have his penis in your vagina? A. About 10 or 15 minutes. Q. Did he ejaculate? A. Yes. Q. After he ejaculated what did you do? A. I got off him and I went to the office and grabbed my stuff. Q. When you returned from the office did he say anything to you? A. He said something about getting a taxi home, and I said no, that I wanted to walk home. Q. Was there any other conversation with him? A. I can't remember. Q. Did you want Mr Habib to penetrate your vagina? A. No, I was at work, I was there to do my job. Q. Was there any other conversation with Mr Habib before you left the premises? A. I can't recall." 16 In her evidence the complainant indicated that she left the premises at about 10.30 pm and walked home. As she was walking she called her friend Heather and left a message. Heather rang her back and they had a conversation during which the complainant gave evidence that she "told her that an incident had happened at work and that I didn't know what to do". 17 The complainant gave evidence that Heather "asked me what had happened and I said that the guy I worked with started to crack onto me and she said "What happened?", I said that it went too far, and she said, "So he had sex with you". I said "Yes, but I said to her that I kept on saying no, that I didn't want it to happen." 18 The complainant also said that her friend told her "I had to tell the police or my employer about what had happened". She said that she replied to her friend saying that she was "scared about losing my job." She also said that she said to her friend: "I just said that I was scared and I didn't want to cause any trouble and that I felt guilty about what had happened and scared." 19 After she arrived home the complainant called her mother and had a short conversation. She then called another friend Sharon and said in evidence that she told her: "I said that something had happened at work, and then I kind of thought it was a bad idea that I called her, so I said, 'It doesn't matter.' And she said, 'Well you've called me now, you might as well tell me, you know what happened.' So I told her that, about what had happened and about -- … I said that, I said that the guy I was working with had raped me." 20 Shortly after that conversation the complainant called her friend Sherry. She gave evidence that she said to Sherry: "That something had happened at work, and I said that the, I didn't want to talk about it, and she said that she was going to come over and pick me up." 21 Apparently Sherry did as she indicated and collected the complainant and took her back to her house where they watched a video and the complainant fell asleep. 22 The next morning when she woke, the complainant had a conversation with Sherry in which she indicated that she did not want to tell her boss what had happened because "I didn't want to lose my job". 23 Sherry apparently persuaded the complainant to call her boss which she did and indicated that she did not want to work with the appellant anymore. Mr Barila asked her why not and she indicated that "something happened last night'. She gave evidence that she did not want to tell him what it was because she was "really sacred of losing my job and what was going to happen". That conversation was terminated but Mr Barila rang back and had a further conversation in which the complainant indicated that she was prepared to tell a female who worked for the agency what had happened. 24 After some time the complainant received a call from Angela from the Edmen Employment Agency. She had a conversation with her about what had happened the previous night. Angela called her back some time later and told her that Mr Barila had contacted the appellant who had denied the incident. Later that day the complainant called the Castle Hill Police Station and at about 5 pm she was taken by the police to Westmead Hospital where she was examined by Dr Smits. 25 Dr Smits gave evidence at the trial in which he confirmed that upon examination he notice a small longitudinal tear in the posterior fourchette. He was asked: "Q. Such a tear is indicative as much of voluntary as involuntary sex, isn't that correct? A. No, it's not as much, about one-third of sexual assault cases have this kind of injury, and in the consensual intercourse it's about one-tenth. Q. So what you're saying is that you can't say whether this tear arose out of a consensual or a non-consensual act, isn't that right? A. That's correct."

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Cross examination of the complainant 26 During the course of the cross examination of the complainant a number of matters were raised, some of which have significance in this appeal. 27 As I have related the appellant offered to pay for the complainant to take a taxi home. The complainant declined the offer saying that she would prefer to walk. However, out of a concern for her safety the appellant offered to give the complainant his mobile phone number so that she could ring him and tell him she had arrived home safely. The complaint accepted the mobile phone number and locked it into the directory of her own phone. However, she did not phone the appellant later that evening. She was asked about this event: "Q. After the incident with Mr Habib you've given evidence that Mr Habib gave you his phone number? A. Yes. Q. And that you put it into your memory in your mobile phone? A. Yes. Q. Why did you do that? A. Because I thought that was the only way I'd get out of there - the house. Q. Did you ever call him? A. No." 28 She was asked by counsel to repeat her account of the incident. The following exchange occurred: "Q. So you say that you found your way onto this sofa, is that right? A. Yes. Q. You were sitting down on it next to Mr Habib? A. Yes. Q. I will keep the conversation aside for a moment, but you say that he grabbed you and put you on top of his lap, is that right? A. Yes. Q. And your legs were straddling his legs, weren't they? A. Yes. Q. They must have been in that position, isn't that right? A. Yes. Q. You know what straddle means, don't you? A. Yes. Q. What? A. Over either side. Q. Yes, his legs were in the middle and your legs one each on either side of both his legs, correct? A. Correct. Q. And that's your memory of how it was? A. Yes. Q. And when Mr Crown was asking you that same questions, about where your legs were, earlier on you said you couldn't remember. Do you remember telling the jury that? A. Yes. Q. Do you now remember, do you? A. Yes. Q. So you say that this person puts you on top of him, that he undoes your jeans, is that right? A. Yes. Q. And what happens with your jeans and underpants? A. They went to my knees. Down. Q. Well you've actually said on the previous occasion between your knees and your groin, isn't that right? A. Yeah. Q. So which one is it, between your knees and your groin or your knees? A. My knees and my groin. Q. And would you agree that by having the jeans still on but between your knees and your groin that that would restrict the amount by which you could open your legs? A. No. Q. No? Think about it for a moment, there you are on top of this person with both your legs straddling his legs, correct? A. Yes. Q. So in order to even straddle his legs you would have to open your legs, isn't that right? A. Yes. Q. So there's your jeans and your underpants still on, correct? A. Yes. Q. Mr Habib's legs are between yours, is that right? A. Yes. Q. And you say that Mr Habib was able, in that position, to have sexual intercourse with you, do you? A. Yes. Q. How was he able to do that? A. Because my pants were down far enough. Q. Which pants? A. My jeans were down far enough and my underpants. Q. Well you say that, Ma'am, but just think about it. There you are, your jeans and underpants are between your groin and your knees, right. On your thighs. Correct? A. A bit further down than that. Q. A bit further down. How much further down would you like to go? A. About that much. Q. About that much. Would you - your Honour I would ask the witness if she could actually go out of the witness box so we could have a look where she actually says, in relation to her own legs, the level of the underpants and the jeans were. HIS HONOUR: Could you stand up and do it or do you have to step down? GELBERT: I can't see that. HIS HONOUR: You will have to come forward a bit so everybody can see, Ma'am. GELBERT: At a point midway between the knees and the groin area. Q. So don't you agree that in order for Mr Habib to get access to have sexual intercourse in the way in which you've described, don't you agree that having the jeans and the underpants there would create an obstruction to him being able to perform that? A. No. Q. No? Well there must have been some obstruction, Ma'am, wasn't there? A. No. Q. So what was he wearing? A. Tracksuit pants. Q. And so you say that he was just sitting as if in a normal position on the couch is that right? A. Yeah a bit forward on the couch though. Q. A bit forward. Is that something you've recently remembered also? A. No. Q. I take you to a position at page 32, line 3 of evidence that you gave at the last trial do you understand? These are questions that Mr Crown was asking you, all right. I will take you back to page 31, line 48. Question 'And how would you describe his position? Was he lying down or seated or was he somewhere in between?' Answer, 'Seated'. Question, 'And were you still on the lounge?' Answer, 'yes'. Question 'And where was his back relative to the normal back part of the lounge where you would normally expect our back to be in contact with the lounge, where was he in relation to such a position?' Answer, 'Yeah, sort of sitting up like, yeah, sitting up'. Question, 'So sitting up. What, generally in a position you would expect someone to sit on the lounge, is that what you're saying?' Then the transcript shows that you didn't reply verbally. Then the question was asked again, 'you're going to have to say yes rather than nod' and you answered 'yes'. Do you remember those kinds of questions and answers being asked of you and answered? A. I can't remember. GELBERT: I'd ask the Crown to concede that I just faithfully read from the transcript of 8 December 2003. CROWN PROSECUTOR: The Crown concedes that your Honour. GELBERT: Q. When Mr Crown was asking you questions last year you said that he was sitting in a normal position, now you're telling the jury that he was sitting forward is that right? A. I consider that to be a normal position. Q. So for you sitting forward is normal? A. Yes. Q. Because you when you answered my question earlier on you were, you seemed to be making a distinction between the forward position that you gave the answer about and the normal position that one would sit in a chair isn't that right? Weren't you making that distinction to the jury? A. No. Q. So when you say he was sitting a bit forward you mean he was sitting normally? A. Yes." 29 Of significance in this evidence is the complainant's assertion that she was grabbed by the appellant and put on top of his lap. However, there was no bruising on her arms, legs or back when she was examined at the hospital the following day. In re-examination she said that she noticed bruising on her back and shoulders at some time later. The complainant also said that she did not try to call out to anyone although she did tell the appellant to stop. Although her arms must have been free she did not try to scratch or hit the appellant in any way or push him from her. 30 It is important to appreciate that the complainant confirmed that she was positioned straddling the appellant who was sitting, and, in that position her jeans and underpants were lowered by the appellant to a position midway between her groin area and her knees. There is no suggestion that having been grabbed by the appellant and positioned on his lap she again stood up. In order to straddle the appellant her legs must have been separated by some distance. 31 When the appellant was tried for this offence on an earlier occasion the complainant apparently gave evidence that the appellant had swung her across to him in a bear hug with both arms around her. The complainant accepted that this was different to the account she gave in the current trial where she said that the appellant had held her by each arm and lifted her onto his lap. When the discrepancies were pointed out to her she said that her account in the earlier trial was correct and maintained she meant the same thing. 32 The complainant said that from the time the appellant inserted his penis until he ejaculated was 10 to 15 minutes. When asked whether this was "quite a long time …in that situation" she answered "no." Although if the appellant forced himself upon the complainant her recollection of the time is likely to be inexact and exaggerated it would seem reasonable to conclude that her recollection was of intercourse for a relatively lengthy period. 33 It was put to the complainant by the appellant's counsel that given the position she was in it would have been impossible for her jeans to be lowered to a point where intercourse could occur. The following exchange occurred: "Q. I just want to now focus on this point of time where you say that you are straddling Mr Habib and that you're very close together, is that right, while you were on his lap straddling him? A. Yes. Q. And he, I think you have said to the jury that he had his arms, at least at any time he had one hand either on your shoulders, behind your shoulders or behind your back, is that right? A. Yes. Q. Tell me, how was it that he came to be able to move your jeans down midway between your knees and groin -- A. He was -- Q. -- in that position? A. -- still holding me with one arm and used the other arm. Q. So with one arm he's holding you. Do you remember which arm it was? A. No. Q. One arm he's holding you. And what's he doing with the other arm? A. He took my jeans down. Q. So did you stand up or in some way allow easier access for that to happen? A. No. Q. You were seated at the time, is that right? A. No, I was on top of him. Q. You were seated on top of his laps (sic), weren't you? A. Yes. Q. Do you agree that your jeans had a crutch? A. Yes. Q. So if you're seated on top of his laps and the crutch area is the apex area as we know, how were the jeans able to move when your bottom stayed in the same position on his laps? A. (no verbal reply) Q. Do you understand that question? A. Not quite. Q. All right. I'll try and make it a bit easier. Do you agree that by sitting on his lap that the jeans which you were sitting on, particularly this apex area that I'm pointing to, they wouldn't be able to go further than his laps. Do you understand what I'm saying? They wouldn't be able to move because the laps would stop them, because your jeans, one leg is on one side and one leg is on the other side of his laps. Do you understand what I'm saying? A. Yes. Q. If I could have the jeans please. Thank you. I'll try and show you another way. These are your jeans, right? A. Yes. Q. So imagine just for the purpose of this line of questioning that this book that I've got in my hand is his laps. I know it's not to scale but, for the purpose of this demonstration, there you are straddling that area, right? A. I was around the other way. Q. All right. This way, right? Is that right? Now how were the jeans able to move down your legs when this area, that apex area, it just wouldn't move past that book which is his laps, would it? Do you see what I'm saying? A. Yes. Q. Well could you please tell the jury how those jeans were able to go down further when they were being, when his laps were there? Would you please tell the jury how it happened? A. I think my knees were on the lounge --

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Q. So your knees were-- A. --so-- Q. -- on the lounge, all right. But the laps are still there, the books still there. How does he get it, these jeans down between your knees and your groin? A. He did. I'm not sure how, but he did. Q. Did he use one hand only to undo your jeans? A. I can't remember. Q. Did he use one hand or both hands to bring the jeans down to a position between your knees and groin. A. One. Q. One hand. Which hand was that? Do you remember? A. No. Q. Because the other hand was still around your body in this bear hug that you've talked about, is that right? A. Yes. Q. Did you see him adjusting his clothing in any way? A. Yes. Q. Well what did you see him doing? A. He lifted his bottom off the chair and pulled his track pants down a bit. Q. He lifted his bottom off, up off the chair, is that right? Okay. And did he pull down both his jeans - his track suit and underwear? A. Yes. Q. Where down to? A. I'm not sure. Q. Was it light in the room where you were, where this was happening? A. Yes. Q. Could you see his penis, for instance, as it, as this -- A. No. Q. --was happening? A. No. Q. No. And you say that as soon as he ejaculated there was no more bear hug, is that right? A. Yes. Q. I'm sorry, I may have asked the question the wrong way to get a confusing answer. Did you tell us was, after he ejaculated was there any more physical pressure placed on you on your version? A. For a little while. Q. Beg your pardon? A. For a little while. Q. So he kept hold of you for a little while-- A. Yes. Q. --is that right? And then what? A. And then he let go. Q. And then you were able to put your clothes on, is that right? A. Pull my pants back up." 34 The complainant gave evidence when cross-examined that after she left the house she felt guilty. She said: "I just felt - I don't know. I was feeling a lot of things. I was scared about losing my job, I didn't want it to happen --" 35 When cross-examined as to what she was feeling guilty about she said; "A. I guess I was upset about what had happened. Q. When we feel guilty as humans we feel that we have done something wrong, that's what feeling guilty is about? A. Well, I'm a Christian and I don't believe in doing anything like that before I get married. I guess I felt guilty to God about what had just happened. Q. You don't-- A. Even --

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The evidence of the appellant 36 On the day after the event the appellant was telephoned by Mr Barila. When asked what had happened the appellant denied any activity of a sexual nature. Mr Barila apparently said to him: "(the complainant) made some allegations against you and they were of a sexual nature. Did you at any time sit with or touch (the complainant)?" 37 The appellant replied: "No, what is she saying, what's going on?" 38 The appellant said: "Nothing happened Frank. Winston Hills is a big house anyway, they would have heard me if I'd done something." 39 After the complainant had been to the police the appellant was advised of the allegation and placed under arrest. When interviewed the appellant declined to comment upon the allegations but indicated he would make a typed statement. That statement was prepared in the form of an affidavit which was sworn on 19 November 2002 and tendered in evidence. 40 In the affidavit the appellant said that the complaint had sat on the lounge with him after her shift had finished. They were making small talk and she put her head on his chest. The appellant alleges that the complainant said to him "I have not been in relationship for two years. I have not been kissed for two years." The appellant says the complainant lifted her head up and they started to kiss and the complainant then stood up and climbed on the appellant straddling his legs facing towards him. The appellant said that the complainant pulled down the front of his track suit pants and exposed his penis. She then took his hand and placed it on her vagina which was very wet. The appellant says that this was the first time he realised that the complainant had removed her jeans. He says he took his hand away and the complainant began to rock backwards and forwards on his penis. As soon as she began to do this he ejaculated. He said in the affidavit that he did not have an erection and did not feel particularly sexually excited. He said his penis did not enter the complainant's vagina but just touched the outside. He said that from the time the complainant stood up to when he ejaculated no more than 2 minutes had passed. He said in the affidavit that "at no time did the complainant ask him to stop being intimate with her but instead took the initiative in the encounter." 41 The appellant gave evidence and was cross-examined. It was suggested to him that when he said in his affidavit he did not have an erection and his penis did not enter the complainant's vagina he was telling a lie. He denied that he had lied saying that: "No it's not a lie, it's - I say the truth. I didn't know if it's enter inside or not." 42 It was suggested to him that upon becoming aware of medical evidence which revealed that the appellant's semen had been found in the higher vaginal area of the complainant the appellant had moved away from the denial that he had an erection and that his penis did not enter the complainant. He was asked: "Q. I'm suggesting, sir, that when you said the words in your affidavit, 'As I did not have an erection my penis did not enter (the complainant's) vagina', that you knew that to be lie? 43 The appellant answered: "No is not." 44 In his evidence in chief the appellant gave the following account of the events: "Q. What then happened? A. Then she sit down watching TV and I watching TV, then she told me 'Are you allergic from woman or girl?' something like that. I said 'No', you know, 'I'm working seventy hour this week, I was sleep over four days'. HIS HONOUR: Sorry, 'Are you allergic to women?' I've got that, what's the next thing? GELBERT: Q. Did you answer anything when she said 'Are you allergic to women?' A. Yes, I says 'I'm just very tired, I work hard this week, seventy hours and I sleep over four days.' Q. Did ……….then do something? A. Yes. Between me and her, it's small cushion, it's - I can say that bit, not big cushion, small cushion, two, and I got one behind my back. She move it like that and she lie down in my chest here. Q. Let's just do that slowly, there were two cushions? A. Yes. Q. Where were they? A. In the middle. Q. In the middle of where? A. Of the couch. Q. Were they between you and her? A. Yes. Q. What happened to those cushions? A She just move them like that to the ground, to the floor altogether. Q. What then happened? A. Then she lied down in chest. Q. What part of her body went on your chest? A. Her face, like that. Q. So you're showing that she leaned her body at 45 degree angle? A. Yes. Q With her head towards your chest, is that right? A. Yes, yes. Excuse me, it's not exactly 45, because the couch is too small, it's two seater. Q. She leaned over? A. Yes. Q. What then happened as she leaned over and put her head in your chest? A. She didn't talk for a short time, then she tell me 'I haven't been relationship for two years.' Q. And did you say anything? A. Yes, I said 'Oh, come on, you still young and still long time for that, you got plenty time for that.' Q. And did she then say anything? A. No, she stopped, then she say again, 'I hadn't been kissed for two years.' Q. And then what happened? A. When she say that word exactly second or before second, she turn and face to my face, come face to face and it's too close to my mouth, and she kiss me in my mouth. Q. And what did you do? A. I kiss her. Q. And did the two of you kiss? A. Yes. Q. For how long? A. Maybe - short time, three minutes, maybe. Q. Did she then do something? A. Then I - because the position is not comfortable for me and for her, I just sit like back again and my eyes just were on the ceiling, I was in that time I was thinking two minutes, think in my head. Q Did you see what…………was doing? A. She's standing up. Q. Did you watch what she was doing? A. No. Q. What were you thinking about? A. I'm think about something like that, what she going to do after that, you know, something is not right, you know, she going to do something, and I know what she want but I'm not -- Q. How did you feel about what had happened so far? A. Because she kissed me and she stay after work should leave, she not staying after work, 10 o'clock should be leave the premises, and she stay for a while, she relax her feet, that's not reason enough to stay and we start to talk about relationship and didn't been kissed, and all that started to - I start thinking what she want. Q. How did you feel about what you had done so far, kissing her? A. I feel it's not right place to do something like that, I'm little bit scared from Shane to come from his room for cigarette, because it was Friday, and Shane know me no work next day, he can come for cigarette walking. Q. Just a moment. As far as Shane is concerned, where was he? A. He's in his bed. Q. As far as Shane's concerned, can he move around on his own? A. Yes. Q. He does use a wheelchair, is that right? A. He got a wheelchair, yes. Q. And he can always walk unassisted, but it's difficult for him is that right? A. Yes, a little bit difficult, but he's standing in the … (not transcribable) .. Q. Is he a smoker? A. Yes, heavy smoker. Q. How many times do you think that you had worked at this house before this night? A. Heaps of hours. Q. Heaps of hours? A. Heaps of hours Q. And had you seen Shane walking to have a cigarette before? A. I see him walking every day morning, come to pick up his chair. Q. Were there any other people who were living in that house who were able to walk? A. No. Q. Just getting back there to that area just after the two of you had kissed and you said that (the complainant) had gotten up, and you were thinking as you were sitting back in the couch, and my question to you is, how did you feel about the kiss that you had just had with (the complainant)? A. I feel is not right to do something like that in that place and I'm married man and she's young for me and something shouldn't be there in that house. Q. Did you tell her that you didn't want to do anything like this? A. No. Q. Did (the complainant) then do something? A. Yes, when she stand up, she sit in my lap. Q. How long after she had gotten up did she then sit in your lap? A. Maybe - it's short, short time, two seconds, or something like that. Q. How did she sit on you sir? A. Face to face, one leg's there, one leg's left, one leg's right and my lap, face in. Q Did she have anything on when she got on top of you? A. No, the top. Q. Did she have jeans on? A. No. Q. Did she have shoes on? A. No. Q. Did she have underpants on? A. The underwear, the underwear, I didn't see how she take the underwear, but I see the jeans next to her when I looked to her when I hold her like that, but I didn't see underwear, but she didn't wear nothing. Q. When she got on top of you, what happened? A. When she sit on the tip of me and she's put her hand in my shoulder in here, and she come closer and kissed me. Q. And then what did she do? A. Then I start to kiss her back. Q. And then? A. Then she took my right hand, like that, and she move it to her --

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Q. You're showing your right hand and your -- HIS HONOUR: He can tell us where he put her right hand, he doesn't have to show us. He can tell us where she put his right hand. GELBERT: No, I'm not going to ask him that question. HIS HONOUR: I thought you were. GELBERT: No I'm not. HIS HONOUR: I beg your pardon. GELBERT: Q. You were just indicating sir, for the record, you're indicating your hand in this fashion. What part of your hand were you indicating? A. The back of my hand. Q. So not the palm, but the other side of your hand, is that right? A. No, my hand here, no. Q. You say that (the complainant) held your hand in the way in which you've just described, did she do anything with that? A. Yeah, she push it to her. Q. To her what? A. To her -- Q. Sorry? (no verbal reply) HIS HONOUR: Help him Mr Gelbert GELBERT: Q. To between her legs, is that what you -- A. Yes, yes, the part between her legs, yes. Q. And when (the complainant) held your hand towards that area between her legs, did she hold it there for long? A. Yeah, I find something is leaking there, just too wet, too, too wet. Q. And then? A. Then she took my hand like that and she put it - was floppy, you know, she took it like that and she three it outside. Q. So she took your hand away from between her legs and put it to your side? A. Yes. Q. At that time did you realise that she wasn't wearing underpants? A. From the beginning -- Q. Or was it you realised before? A. I realise before, yes, nothing at all. Q. When she took your hand away from between her legs, what then happened? A. She put her right hand in my tracksuit and underwear under and she pull my -- Q. Your penis out? A. My penis out with my ball too. Q. When she pulled your penis out, did that have any effect on the tracksuit that you were wearing? A. Yeah, the elastic from my undies and the elastic from the tracksuit is very tight, she put them wrong way, it's tight in here, I start to move like that to make myself comfortable. Q. Did you do something to your tracksuit to make it more comfortable? A. No, I just move like that, put it like that until I get comfortable, the elastic isn't hurting. Q. Did you notice what (the complainant) was doing? A. She wasn't doing nothing when I moved like that, she just sit down. Q. And then what happened? A. Then she moved again to chest to chest and she put herself on top of me, is coming straight away touch her and she moved very, very quick. Q. Do you know where your penis was in relation to her vagina between her legs? A. In that situation I was not hundred percent, half way, not like normal sex. Q. At the time were you - firstly, did you have a hard erection? A. No, at all, no. Q. Do you know what the word 'ejaculate' means? A. I know after, but before the Court I didn't know the - I know it's come but -- Q. When did you first know what that word means? A. When they start sending me letter from the solicitor and go to the Court and a statement, I start find from the dictionary and my wife help me to -- HIS HONOUR: He must know what the act was, surely. GELBERT: -- the word that we're -- Q. I'm talking about the word sir, the word 'ejaculation', the English word 'ejaculation', when was the first time you knew about that word? A. I knew that word when from the accident's happened, that time, but before --

[18]

Q. Where what happened? A. Before when it's got that happened, 15, before that I know it's come, I'll come. Q. The word 'spermatozoa', the English word 'spermatozoa', did you know that word before this case? A. I know 'sperm', but the other word I didn't know, I didn't know what's that. Q. When (the complainant) was on top of you and you've given evidence about how you had removed your penis from underneath your tracksuit, did you feel or see her do anything on top of you? A. She start move like a horsey like that. Q. She started moving? A. She move like that, she start to move like that. Q. Showing backwards and forwards from the -- A. Back and forward, yes. Q. How long did she do that for? A. Short time. Q. And did something happen while she was doing that to you? A. I feel I came. Q. When you said you felt you came, was the feeling that you had a normal feeling that you had? A. No, not at all. Q. In what way wasn't it normal? A. The way was normally, you know, when you came and you stop like that, you came, but this time it was moving, I didn't know where I'm landing, it's finished, I came, that's quick way. Q. After you came, what then happened? A. (The complainant) stood up and she put her jeans again, she put her jeans, she sit down on the couch, she put her boots, and I went to the bathroom, I wash myself, and I come back, and (the complainant) was ready, put the coat and everything ready to go home." 45 Medical evidence was given at the trial which indicated that as the appellant had ejaculated he must have had an erect penis. Although it was possible that semen had moved from outside the vagina to within the evidence suggested that because semen was found in the high vaginal area this was unlikely. The jury was entitled to conclude that when the appellant denied that he had penetrated the complainant he was telling an untruth. 46 It is also apparent that when the appellant was speaking with Mr Barila he did not tell him the truth. Sexual activity had taken place and the appellant was not telling the truth when he denied that it had occurred. Apart from a denial out of a consciousness of guilt there were other reasons why the appellant may have taken this course. The most obvious was a concern that if he admitted to having sexual relations while working he would be likely to lose his job. 47 The account of the sexual activity which the appellant gave in evidence suggests that he did not encourage the sexual activity and although he did not resist the complainant's advances he was not particularly sexually excited. Having regard to the evidence that the appellant had invited the complainant to stay with him, suggesting that she stay the night, the jury were entitled to believe that he was not being truthful about his desire for sexual activity. Again, there were reasons, apart from a consciousness of guilt why he may have sought to give this impression. The most obvious would be a desire to leave his wife with the belief that although sexual activity occurred he did not encourage or desire it. This may also be an explanation for his assertion that he believed that he had not penetrated the complainant.

[19]

Verdict unreasonable? 48 Section 6(1) of the Criminal Appeal Act provides as follows: "The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. 49 Although the application of the section has at times proved troublesome it was authoritatively considered by the High Court in MFA v The Queen (2002) 213 CLR 606, M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439 at 493. 50 There are two joint judgments in MFA. Gleeson CJ, Hayne and Callinan JJ state that when the issue is whether the verdict of a jury is unreasonable or cannot be supported the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in M: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." 51 As the High Court emphasised in Chamberlain v The Queen (No 2) (1984) 153 CLR 521 it is important to appreciate that the role of the Court of Appeal is to decide a question of fact. "It is supervising or reviewing the findings of a tribunal of fact" (see Darling Island Stevedoring Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643; R v R (1989) 18 NSWLR 74). 52 In MFA the High Court was concerned with whether the analysis of the facts of a trial by this Court was appropriate. In carrying out the appellate task the joint judgment emphasised that it was relevant to identify whether the evidence in the Crown case was "cogent and unequivocal, and it was not inherently implausible"[30]. The relevant question is whether "it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt" [36]. 53 In MFA, McHugh, Gummow and Kirby JJ joined in a separate judgment. Their Honours emphasised that it was important to focus on the language of s 6(1) which because of the inclusion of the word "unreasonable" "seems to state a very broad test"[47]. However, their Honours point out that the seeming amplitude is to be restricted by the context. Being a verdict of a jury which is given a special place in the law to set it aside involves "a serious step"[49]. The requirement of the section is that the court must determine whether there has been a "miscarriage of justice" notwithstanding that the jury has returned a guilty verdict. 54 Embracing the test adopted by the majority of the court in M the joint judgment stated: "Instead of asking whether the jury 'must' or were 'bound to' have a reasonable doubt about the accused's guilt, the majority posed the question whether it was 'open to the jury' to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict 'upon the whole of the evidence' " [55]. 55 The joint judgment offered the following by way of guidance: "The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred: 'If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'[56]." 56 In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention" [96].

[20]

Analysis of the evidence in the present case 57 Turning to the evidence in the present appeal there are a number of matters which require careful consideration. Firstly, there is the inconsistency in the complainant's account of how she was grabbed by the appellant and lifted onto his lap. At the earlier trial the complainant says she was taken in a "bear hug" the appellant placing his arms around her and lifting her onto his lap. At the trial the complainant said that she was lifted by the arms, the appellant grabbing each arm above the elbow and below the shoulder and lifting her. However, when reminded that she had previously given a different account she said the earlier version was correct. 58 To my mind, the inconsistency in this evidence is not devoid of significance. If the complainant was, as she maintains, forced to straddle the appellant against her will her memory of the event would be likely to be vivid although it may have diminished with time. 59 This inconsistency needs to be considered in light of the fact that there was no bruising evident on the complainant's body when she was examined at the hospital, although she says she noticed some marks at a later date. Given the physical force required to lift the complainant, some bruising may have been thought to be likely although a lack of it is not determinative of the matter. There is also the evidence of a tear in the vagina which could be consistent with intercourse taking place when the appellant was using physical force, although Dr Smits conceded that it could happen when the sexual act was consensual. 60 To my mind, the actions of the complainant after the alleged assault also require careful consideration. Her decision to walk home is unremarkable but the acceptance by the complainant of the appellant's mobile phone number and the entry of it into her telephone may not be consistent with her allegation that she had been forced to have sexual intercourse with the appellant only a short time previously. The complainant gave no evidence of any aggressive conduct by the appellant toward her after intercourse had ceased or any suggestion that at that point in time she was overborne by the appellant which could explain her retention of the telephone number. Although she said that she did it because she "thought that was the only way I'd get out of there -- " she gave no evidence of any attempt by the appellant to further restrain her or stop her from leaving. 61 Questions arise in relation to the complainant's account of the events to her friends including whether she made a complaint of sexual assault until she was prompted. The first person she called was her friend Heather to whom she initially gave an account of an event where the appellant had "started to crack onto me" but it "went too far". However, the complainant also said that she told her friend that she kept on saying "no". The complainant also related that she was concerned about telling the police or her employer because she was "scared about losing my job". Some people may find it difficult to accept that the complainant would fear losing her job if she had been forced to have sexual intercourse against her will. However, the complex of emotions created by a sexual assault may also leave the victim feeling unsure whether some blame may be wrongly attributed to her by others with the possibility that her standing with her employer could be diminished. 62 The complainant gave evidence that after the event she felt guilty about what had happened. She explained her guilt as being a concern that because she was a Christian she did not believe in sexual activity before she was married. She said that "I guess I felt guilty to God about what had just happened". If the complainant had been sexually assaulted as she alleged some people may find it difficult to understand why she should feel "guilty to God" and believe such a feeling would be more likely if she had engaged in consensual intercourse which she now regretted. However, I accept that the reaction of a devout Christian to such a situation may give rise to a range of responses which could include a feeling that she had failed to honour her Christian beliefs. 63 Although all of these matters require careful consideration it must be remembered that the complainant did, shortly after the alleged assault, report the matter to her friends and ultimately went to the police and was examined in hospital. Given her concerns about her employer and her Christian faith, if the sexual activity was consensual it may be thought more likely that she would not have informed anyone. Accordingly, the act of informing her friends is consistent with her concern to report the fact that she had been violated. However, it could possibly be explained by the fact that she was feeling guilt and remorse about a consensual act and in confusion sought counselling from her close friends. 64 Counsel for the appellant places emphasis on the fact that the complainant denied that she owned or was wearing a long coat and boots on the evening of the alleged offence. The appellant says that she was wearing this clothing which she removed before the sexual activity occurred. There was evidence from friends of the complainant which contradicted her evidence at least to the extent that they confirmed that the complainant did own the suggested items of clothing. It is submitted that the complainant lied about these matters. I am satisfied that it was open to the jury to come to this conclusion. 65 To my mind, all of these matters raise issues which the jury was required to consider and resolve. Notwithstanding the fact that some, or perhaps all of the issues, could have been resolved in the appellant's favour they are not such as would entitle this Court to intervene. This Court can only intervene in a serious case where it is satisfied that a finding of guilt beyond reasonable doubt was not open. 66 However, there are other matters of fundamental importance which, to my mind, do require this Court to intervene. Irrespective of how the complainant came to be on the appellant's lap, she maintains that she was positioned straddling him with her legs apart and, probably, with her knees on the couch beside his hips or thighs. She was seated on his lap facing him. In this position, she alleges, the appellant fondled her breasts and while restraining her with one hand used the other hand to lower her jeans and underpants to a position between her groin and her knees. At about the same time the appellant is alleged to have lowered his own pants having lifted his bottom from the couch. 67 It is conceivable that the complainant could have been effectively restrained by the appellant holding her with one of his arms - she was of slight build with a weight of about 40 kilograms. However, because her legs were separated so that she straddled him and she was seated on his lap it is, to my mind, unlikely that her jeans could have been lowered over her buttocks to a position where penetration could occur. In the position which the complainant suggests intercourse occurred her thighs must have been apart which would make it most unlikely that her clothes could have been lowered as she asserts. As she was seated on his lap, the account which she gives is open to doubt. 68 To my mind, there are three difficulties with the complainant's account. Firstly, the appellant would have had difficulty releasing the complainant's jeans and moving them past her buttocks while she was sitting on him. Secondly, he would have difficulty moving her underpants and jeans down her thighs to any considerable extent. If, however, both these acts occurred the jeans and underpants would still have been around her thighs and between her groin and the appellant's body providing an obstruction to penetration. I believe there must be serious doubts whether vaginal penetration in the manner the complainant suggests, could have occurred against her will with her body and clothing in the position she indicated. 69 Although the other matters, to which I have earlier referred, may be accepted as imperfections in the evidence which a jury are well able to evaluate, the evidence of the physical position of the appellant and the complainant during the act of intercourse is of quite a different character. Having regard to this evidence I am of the opinion that it was not open to the jury to be satisfied beyond reasonable doubt that intercourse occurred in the manner suggested by the complainant without her consent. A miscarriage of justice has occurred which requires this Court to intervene. 70 In these circumstances, it is unnecessary to deal with the second ground of appeal. 71 The appropriate orders are:

[22]

72 SIMPSON J: The facts are set out in great detail in the judgment of McClellan AJA, which I have read in draft. I agree with the orders proposed by his Honour. My reasoning process differs in some respects from that of his Honour. 73 The principal ground of appeal is that the verdict of guilty is unreasonable and cannot be supported having regard to the evidence. That calls for careful analysis of the competing considerations. The case has a number of unusual, and troubling, features. 74 By the time the charge came to trial, there was no issue that sexual intercourse between the complainant and appellant had occurred. There was no issue that it had occurred during the late evening of 15 November 2002, in premises at Winston Hills occupied as their residence by a number of sufferers of cerebral palsy in the care of the Spastic Centre of NSW. It was common ground that the appellant and the complainant were, on that evening, employed by Edmend Employment Agency as casual carers for these occupants. The sole issues in the trial were whether the by then admitted intercourse was consensual, or, more accurately, whether the Crown had proved beyond reasonable doubt that, at the time the appellant had sexual intercourse, the complainant was not consenting and the appellant knew that she was not consenting. No issue arose as to any honest but mistaken belief in consent. Given the respective positions taken by the parties, the true issue for determination by the jury was that of actual consent. 75 Argument on the appeal focussed heavily upon the physical, or mechanical, possibility or impossibility of the sexual intercourse occurring as described in her evidence by the complainant. Her account, essentially, was this. She and the appellant were sitting on a three-seater sofa. She was wearing stretch jeans. There were small cushions between them. Some conversation took place. The appellant removed the separating cushions and put them on the floor, reached across, and grabbed her by the top of the arm or the shoulder. He "slung" her onto his knees, facing him, her legs straddling his. Holding her in a bear hug, he began kissing her, and then reached down into the upper part of her clothing and began feeling her breasts. During this time she tried to get away, but the force with which he held her prevented her from doing so. He pulled down her jeans and his tracksuit pants, inserted his penis into her vagina, and started moving. She repeatedly asked him to stop, but he persisted, without answering. The intercourse continued over about ten to fifteen minutes, until the appellant ejaculated. The complainant did not scream for help because she was very frightened. After the appellant had ejaculated, the complainant stood up and went to the office to collect her belongings. The appellant offered to pay for a taxi home for her but she preferred to walk. He gave her his mobile telephone number, which she keyed into her own mobile telephone memory. 76 Cross-examination by counsel for the appellant was largely directed to undermining the credibility of the complainant's account, by questioning the feasibility of the events having occurred as she outlined them. Both in her evidence-in-chief and in cross-examination the complainant said that the appellant "pulled" or "took" her jeans down. In cross-examination she settled on saying that they had been pulled to between her knees and her groin. She said nothing (and was not asked) about whether, and if so, how, the appellant undid the fastenings on the jeans. The jeans were an exhibit in the trial and have been inspected by this court. They are of stretch fabric, with, in my assessment, a good deal of elasticity. The fly is secured by buttons, not a zipper. 77 The proposition to which the cross-examination (and the argument on the appeal) was directed was that it was physically impossible for the appellant to have held the complainant, facing him, with her legs opened across his legs, and to have removed the jeans; or to have penetrated her in that position. In this respect it is of some significance that the complainant denied having stood up, or otherwise cooperated in allowing the jeans to be removed. When pressed, she said that she thought her knees were on the sofa. (Earlier she had said that her feet, still shod, were "just in the air, like ... not touching the ground".) When pressed further, about how the appellant was able to pull the jeans down to between her knees and her groin, she said: "He did. I'm not sure how, but he did." 78 At an early stage of the proceedings, it is evident that the jury was alive to this issue and had some concerns about the complainant's evidence. Early in the afternoon of the first day of the trial, while the complainant was still giving evidence-in-chief, they sent a note containing three questions. They were, as read onto the transcript by the trial judge, as follows: "Question 1. Can you please describe how the accused managed to grab and manoeuvre her into position? What in fact was the position of [the complainant] on top of the accused? Straddled or other? Question 2. How was [the complainant] actually restrained, were her arms free? Question 3. Did [the complainant] say anything like, 'I am going to call the police' or struggle more than, 'I'm not like that'."

[23]

79 Initially, when asked on the following day (Saturday 16 November) about the complainant's allegations by a manager employed by Edmend Employment Agency, Mr Frank Barila, the appellant falsely denied that any sexual activity had occurred. 80 On Monday 18 November the appellant presented himself with a solicitor at the Parramatta Police Station where he was arrested and charged. He declined to comment on the allegations that were put to him. However, the following day he swore an affidavit which was then provided to a police officer a day later. This document also contained some assertions which the appellant later conceded to be untrue. In it, he deposed, inter alia: "4. I recall that [the complainant] started at 4.00 PM and worked until about five minutes before 10.00 PM that night. There were no incidents of any note during this period... I did not abuse this position nor make any remarks to [the complainant] of a sexual nature. ... 6. After this [two telephone calls from Mr Barila to the complainant] and around 10 o'clock [the complainant] said, 'I am going to stay a while my feet are tired from standing up. I will stay and watch TV until around 10.30'. [The complainant] took off her boots and then sat on the lounge next to me. A minute or so later [the complainant] got up and took her coat off. ... 8. [After some conversation] [the complainant] then put her head on my chest. After a while [the complainant] said to me 'I have not been in a relationship for two years ... I have not been kissed for two years.' 9. Straight after she said this [the complainant] lifted her head up and was directly in front of my face. We started to kiss. I recall that we kissed for a minute or two. ... 10. In less then (sic) thirty seconds after [the complainant] stood up she climbed onto me straddling my legs and was facing me. As [the complainant] did this she pulled down the front of my tracksuit pants and exposed my penis. ... As I did not have an erection my penis did not enter [the complainant's] vagina. It just touched around the area outside. I am not aware where my spermatozoa landed when I ejaculated. 11. ... [The complainant] said, 'I am going to go home now.' I said, 'Are you walking? Don't walk it is not safe as it is late. I will give you some money for a taxi.' [The complainant] refused this offer and left. ..." 81 Subsequently, the appellant, through his solicitor, was provided with copies of statements on which the Crown proposed to rely in support of the charge. Included in these was a statement or certificate from Dr Gael Smits, a medical practitioner who examined the complainant and who later gave evidence. 82 Dr Smits' statement revealed to the appellant that, on medical examination of the complainant, semen was detected in a high vaginal swab. On DNA comparison with a sample taken from the appellant, the semen proved to be that of the appellant. 83 The appellant gave evidence in the trial. He now agreed that intercourse had taken place, and gave an account that was, to a large extent, consistent with that contained in his affidavit. It is of some interest that, while maintaining that it was the complainant who initiated the activity, his description of the manner in which it had taken place had broad parallels with the complainant's description - that is, that sexual intercourse had occurred when the appellant was sitting on the sofa, and the complainant sat in or on his lap, facing him, with her legs straddling his. On the appellant's version, however, not only had the complainant initiated the activity, but, at the time that she did so, she had already removed her shoes and her jeans. The appellant went on to describe sexual intercourse in which the complainant was extremely proactive. 84 Contrary to what he had said in his affidavit, the appellant now accepted and admitted that he had ejaculated, and that he had achieved a degree of penetration. In evidence-in-chief, in accepting that he had ejaculated, he appeared to attempt to maintain some level of denial of having achieved complete erection. The transcript records the following: "Q: When you said you felt you came, was the feeling that you had a normal feeling that you had? A: No, not at all. Q: In what way wasn't it normal? A: The way was normally, you know, when you came and you stop like that, you came, but this time it was moving, I didn't know where I'm landing, it's finished, I came, that's the quick way." 85 And in cross-examination he denied that the passage in the affidavit that reads: "As I did not have an erection my penis did not enter [the complainant's] vagina."

[26]

89 Before moving to some more of the detail of the argument raised in support of the appeal, it is convenient to recall the test laid down for the determination of a criminal appeal on the ground that a verdict cannot be supported by the evidence. Although the High Court has spoken of this on a number of occasions, and the judgments are referred to in the draft judgment of McClellan AJA, perhaps the best known and most quoted passage is that which appears in M v The Queen [1994] HCA 63; 181 CLR 487 at 493 of the CLR: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. " (emphasis added) 90 This was a case in which the jury was confronted with the sworn evidence, principally of two witnesses, with very little extrinsic evidence available to cast light upon which should be accepted. (It framing the proposition in that way, I should not be taken to have overlooked that the onus of proof lay at all times upon the Crown. That is a matter which was adequately put to the jury, about the directions concerning which there is no complaint.) 91 It is of some interest that, even before the complainant was cross-examined, the jury recognised the issue concerning the physical possibility or impossibility of the intercourse having occurred as the complainant described. Notwithstanding that, and the other matters to which I shall come, the jury ultimately accepted the complainant's version. That is no small matter, and not to be lightly put aside. 92 There were other circumstances capable of bearing upon the ultimate outcome. Adversely to the Crown case, for example, were the following features, referred to in more detail in the judgment of McClellan AJA. The appellant gave a description of some clothing he said was worn by the complainant. In his affidavit he said, besides a pair of tight jeans, she was wearing a pair of knee-length platform boots, with zippers, and a long coat. In his evidence-in-chief he described the boots she was wearing as "a big bulky one". He described her coat as: "A black coat, it's old-fashioned one, you got something in her neck like that, like a furry thing, like a tiger or something like that, and in here too, in her hand, and in the bottom one."

[40]

Sherry thought that the complainant appeared to be upset; her voice was shaky and trembling, and she sounded as though she had been crying. The complainant asked Sherry to come to her home and pick her up as she did not want to stay at home alone. Sherry did so. When she arrived at the complainant's home the complainant looked pale and shaken, worried. Sherry did not press the complainant that evening, but helped her to relax. The next morning the complainant told her that she had been raped by a work partner. Sherry was with the complainant when she made contact with the Castle Hill Police Station and attended the hospital with her. At the hospital the complainant said to her: "He asked me to stay overnight at the house and I said no. He then asked me to stay for coffee. I agreed and stayed and had a coffee with him. He started touching me and trying to kiss me. He then pulled me on top of him and I just kept saying, no, no." 100 The third witness of complaint was called Sharon. She received a telephone call from the complainant at about 11.30 pm on the evening of 15 November. The complainant said: "I just got raped." 101 Sharon asked her what happened and she replied: "I stayed back from work and the guy that I was working with started kissing me. I said no, I don't want this, I didn't want to do it but it happened." 102 Sharon thought that the complainant sounded very upset and was at times crying, and her voice quivering. 103 The complainant's own evidence of complaint, was, in fact, more damaging to the Crown case. Her evidence was: "She [Heather] asked me what had happened and I said that the guy I worked with started to crack on to me and she said 'What happened?', I said that it went too far , and she said, 'So he had sex with you', I said 'Yes', but I said to her that I kept on saying no, that I didn't want it to happen." (emphasis added) 104 Another aspect of the evidence which is not to be overlooked is that concerning the relative weights of the complainant and the appellant. The complainant was a young woman of very slight build, weighing only about 40 kg. The appellant said that his weight was about 75 kg. To some extent, this would support the complainant's account, in that it would be at least physically possible that the appellant could lift her onto his lap as she said. * * * 105 I am acutely conscious of the advantage enjoyed by the jury in observing the two principal witnesses. However, I have come to the view that, from the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the events occurred as described by the complainant. In coming to this view I am not moved by a perceived lack of logic in the complainant's evidence that she was "scared" and feeling guilty. Human behaviour and emotions do not always follow logical pathways, particularly at a time of enhanced emotional activity. In my opinion it would be dangerous to read too much into the complainant's evidence in this respect. Having said that, however, it would have to be recognised that the complainant's feeling of guilt is more consistent with consensual sexual activity than non-consensual. 106 If this were the only matter casting doubt upon the complainant's evidence it would not be sufficient to persuade me to depart from the jury's verdict. 107 It is not the only matter. Another matter, again insufficient on its own, is the complainant's apparently ready acceptance of the appellant's telephone number. Again, I do not see this as pointing unequivocally to doubt about the complainant's evidence. She gave an explanation which, in my opinion, is at least acceptable: that is, that by accepting the telephone number she had a greater opportunity of getting out of the house. Again, having said that, the evidence is more consistent with consensual than non-consensual sexual activity. 108 Nor am I persuaded by the absence of bruising. The complainant gave evidence, which was not challenged, that bruising emerged subsequently. There was no medical evidence about the period of time over which bruising can become manifest after rough treatment. 109 In the end, there are two principal aspects of the evidence that persuade me that the verdict of guilty was not reasonably open. The first is the somewhat unguarded and revealing evidence given by the complainant herself about her complaint to her friend Heather. Her evidence is that she said "... it went too far ...". It is of some interest that this was not replicated in the evidence given by Heather, but it seems to me to be of real significance in suggesting that there had been some degree of willing participation by the complainant. I also find some echoes of this in the evidence given by Heather, who attributed to the complainant: "... I had got myself into a bad situation ..."

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and: "I should have known better ...". 110 It is true that the latter was followed immediately by the assertion that the appellant had forced himself upon her, and this renders the communication somewhat equivocal. Further, against that has to be put the evidence given by Sherry and Sharon. To Sherry the complainant said that she had verbally resisted the appellant's advances; to Sharon the complaint was quite unequivocal and was an allegation, in terms, of rape. But this was the third telephone call made by the complainant, and was framed in language which may have been influenced by the conversations she had had with Heather and Sherry. She had been asked by them whether the activity had been consensual, and had denied it. The sequence of the complaint evidence suggests that the complainant "firmed up" in her denial of having been a willing participant as she discussed the matter with others. 111 On this issue another piece of evidence given by the complainant, extracted in the judgment of McClellan AJA, cannot be overlooked. This was her evidence that she had become a Christian, and her Christian beliefs did not permit her to indulge in sexual intercourse outside of marriage. It would not be right to disregard the possibility that the feelings of guilt which the complainant claimed to have experienced caused her to reconstruct the events of the evening in her mind. 112 Finally, and most importantly, I have had regard to the complainant's evidence as to how, physically, the sexual activity occurred. Notwithstanding the complainant's slight build, it is not easy to envisage how the appellant was able, from a seated position, to lift her, turn her body, and place her, facing him, legs astride, on his lap. Nor is it easy to envisage how, without any cooperation on her part, he was able to undo and lower her jeans and underwear while she remained in that position. The spread of her jeans must have made manipulation of the jeans difficult if not impossible. 113 In coming to the view I have that the conviction cannot be sustained, I should not be taken to suggest that the appellant's version is to be preferred. It may well be that the truth lies somewhere in between the two accounts. It may be that the jury's verdict is explained by their rejection of the appellant's claim to have been seduced by the complainant. It is possible that they proceeded on the basis that only two alternative scenarios were available, and that the appellant's evidence did not disclose a reasonably possible version of the events of the evening; and that, if they rejected the appellant's account, then that left them only with the complainant's account. Such an approach would, of course, be erroneous. Even if the jury rejected the appellant's self-serving account, there remained a range of alternative hypotheses consistent with sexual relations having taken place that were consensual. Some of these alternative hypotheses dovetail neatly with those aspects of the evidence giving rise to uncertainty that I have referred to above. 114 The appellant was shown to have been untruthful, on more than one occasion, but, in the circumstances of this case, that was really of little significance. He advanced explanations which were, in my view, credible: that, as a married man, he did not wish his sexual infidelity to be known, and that, if his employers became aware of sexual engagement taking place in the house, his employment would almost certainly have been terminated. Thus, what the jury had was, as I have indicated above, the sworn testimony of the complainant to the effect that she was forced by the appellant into the sexual activity, against the sworn testimony of the appellant that it was the complainant who initiated sexual activity, and, indeed, seduced him. In my opinion the evidence as a whole was not capable of permitting a finding beyond reasonable doubt that the complainant's version was correct. 115 For those reasons I concur in the orders proposed by McClellan AJA. Like his Honour, I do not find it necessary to deal with second ground of appeal. 116 ROTHMAN J: I have had the advantage of reading in draft the reasons for Judgment and the orders proposed by McClellan AJA who sets out the facts which form the basis of the conviction and the matters agitated on appeal. I agree with the orders proposed by His Honour. The Principles 117 I agree with the principles adumbrated by McClellan AJA at paragraphs [47] to [55]. As Gleeson CJ said in a wholly different context: "Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance. Trial by jury carries with it significant limitations of that kind." ( Swain v Waverley Municipal Council (2005) 79 ALJR 565 at 566) 118 In the context of a criminal trial the requirement for finality of factual assessment by a jury must be qualified by the importance of the liberty of the individual and the fundamental requirement of the criminal justice system to prove guilt beyond a reasonable doubt. It is reconciling those two issues which the judgments of the High Court in M v R (1994) 181 CLR 487 and MFA v R (2002) 213 CLR 606 in part address. However, even in that context, in the joint judgment of McHugh, Gummow and Kirby JJ in MFA the High Court reminded us that "a 'verdict of a jury' particularly in serious criminal cases, is accepted, symbolically, as attracting to decisions concerning the liberty and reputations of accused persons a special authority and legitimacy and hence finality." (MFA at 621 [48]) 119 Such finality is qualified by the existence of s.6(1) of the Criminal Appeal Act only because of the intolerable prospect that if an unreasonable conviction, or one unsupported by the evidence, remains extant, it would be inconsistent with the legitimate exercise of lawful power which the community has come to expect from its legal system (see MFA at [59]). 120 The difficulty arises in reconciling the overall impact of the evidence and its reasonableness with the inability of an appeal court to see and hear the evidence as it is given. It is for the jury to determine which, if either, of two accounts is to be believed and in this case the jury has clearly found that the appellant was not to be believed in his account.

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(b) The length of time that penile penetration occurred: It does not strike me that 10 to 15 minutes is a relatively long time. More importantly I have real doubt as to its relevance to any issue. On any analysis, penile penetration occurred. There is no reason that the estimate of the length of time is particularly relevant in this case to the presence or absence of consent or even as to credibility. It is far more likely to relate to different perceptions of time. 124 As already indicated, the jury has clearly determined that it did not consider the appellant a truthful witness. There were substantial grounds for that, even apart from those matters which were admitted as lies. The proposition that, on the appellant's version, the complainant was sitting on a lounge next to him, had made advances towards him, then arose from the lounge, took off her boots, her jeans and her underpants and the appellant, who continued to sit at the lounge, did not notice her removing her jeans and underpants is, to say the least, improbable. 125 Something also ought be said about the issue of the complainant feeling guilty after the incident which guilt on the appellant's submissions, may be taken as an indication of consensual sexual intercourse. Human experience suggests that it is not uncommon for victims of sexual assault or sexual abuse to feel guilt that some of their conduct may have engendered or encouraged criminal conduct. Such guilt feelings may be irrational, but they are nevertheless real. Likewise, attributing rationality to religious beliefs associated with participating in a sexual act, even when non-consensual, is not an appropriate basis to disbelieve a person who has given evidence about those beliefs and been cross examined appropriately in relation to them and/or the reason why guilt feelings may be manifested. There are religions in which even the victims of sexual assault are seen to have been dishonoured, or otherwise tainted, and which would cause adherents thereto to feel guilt associated with such victim status. Even when the religion does not, misguided views of religion are not uncommon even amongst devout adherents. 126 Likewise, notwithstanding the submission of the appellant, the offer and acceptance of a telephone number by the appellant and complainant respectively is, especially in light of the evidence in relation thereto, an unremarkable event. As are the words chosen in complaints to her friends by the complainant. 127 I turn then to the issue addressed by McClellan AJA and in particular the conclusion reached as to the capacity of the appellant to remove the complainants clothing. The conclusion as to great difficulty in that task is not obvious and especially so in circumstances where much would depend upon the position of the complainant on the appellant's lap (i.e. how close to the appellant's knees the complainant was sitting at the time that the clothes were removed) which position would also determine the extent to which the complainant's knees would need to be apart. 128 However, having said that, it would be necessary for the complainant to have been moved significantly for the appellant both to have removed her clothing on the one hand and engaged in sexual intercourse on the other. The complainant does not give evidence of such a significant movement and the complainant's evidence in relation to her position on the lap of the appellant is unfortunately vague. 129 This is most significantly illustrated by the questioning of the complainant in relation to the position of her knees and legs during the act of sexual intercourse. On one view, the view taken by McClellan AJA, the evidence of the complainant would render almost impossible the act of sexual intercourse. I do not share that view although the analysis is open. In other words, I take the view that the complainant's evidence as to the position of her knees is equivocal. On one view of it, it would render impossible the act of sexual intercourse. On the other hand there are clearly positions available which would render possible penile penetration in circumstances where the complainant's clothing was midway between her groin and her knee. The fundamental problem is that even though one may take a view that penile penetration may have been possible (even probable), the evidence of the complainant is, on these issues, so uncertain and lacking in detail that it could never be said, even taking the complainant's evidence only, and a fortiori upon the whole of the evidence, that it was open to the jury to be satisfied beyond a reasonable doubt that the accused was guilty (per Mason CJ, Deane, Dawson and Toohey JJ in M at 493) 130 Even if the complainant's evidence was preferred and the jury did not believe the evidence of the appellant, the evidence here, as a whole, must give rise to a reasonable doubt. 131 For the reasons outlined, I agree with the orders proposed by McClellan AJA. **********

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Judgment (45 paragraphs)

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Cases Cited (8)