Robertson v DPP; DPP v Robertson [2026] ACTCA 11

By a notice of appeal dated 6 August 2025, the Director of Public Prosecutions appeals from the whole of the orders of the learned judge on sentence. The Court has unanimously concluded that the appeal against sentence should be dismissed. Our reasons for that conclusion will be published at a later date.

In the accommodation premises, the appellant says he saw the victim on two occasions within a short space of time. On the first, they exchanged brief greetings, and on the second the appellant complimented her on her looks and on her clothes. The victim denies that they saw each other on two occasions and says that it was only on one occasion and in the area outside her room. They had a conversation, and the appellant was very “forward” with her and commenced touching her. They became proximate to each other. He placed his hands upon her hips to which she had not given her consent, but she did not communicate the absence of her consent. It is unclear on the evidence whether any kissing occurred outside the room of the victim. The appellant then suggested they both go to her room, and she agreed. The victim had earlier told other cadets on the floor she did not want to be alone in her room with the appellant and if they saw him go into her room, they had permission to enter her room. On this occasion, she agreed that he could come into her room. As soon as the two of them entered the room of the victim, they commenced kissing and the victim then asked the appellant whether he was still with his girlfriend, which he denied. His girlfriend at the time, Ms C, was another member of the Academy who was in the year above the victim at the Academy. The victim said to the appellant several times that she did not want to do anything more than kissing.

Whilst the two of them continued to kiss, the victim placed her hands upon the body of the appellant around his chest area and elsewhere upon his body (but she cannot recall where) and he placed his hands upon her. The two of them appear to have been in an embrace. The victim said that she did not want to do any more than kiss and she did not want to have sex. The victim described the appellant as becoming “handsy”; during their kissing, he lifted the dress of the victim and commenced rubbing her genitals over her underwear (count 1: act of indecency without consent). She repeated that she did not want to have sex with the appellant. This event occurred near to a chair in the room (cf Exhibits 1 and 11), about midway between the door and the bed in the room, which was against the wall. The victim continued kissing the appellant while placing his hand over her underwear.

The victim denies ever being asked by the appellant to have sex with him. He continually said that she “wanted to have sex with him” or “you know that you want to have sex with me”. She told him that she did not want to have sex. The appellant said that he asked the victim to have sex with him; she said that she did not want to; he persisted in telling her she really wanted to have sex with him. She continued to refuse him and denied any desire to have sex with him. During the kissing embrace, the appellant led the victim over to her bed, which was on the other side and opposite the door of the room. In her statement to the police, she used the expression that he ushered her over to her bed. When they had reached the bed, the victim lay across the bed with her head to the wall, her legs were up and over the side of the bed, and she was facing the appellant. The victim had her bottom on the bed, her head and shoulders were up off the bed, and her feet were on the floor. The victim and the appellant continued to kiss while the victim was lying across the bed. Logically, the appellant must also have been on the bed at the time the victim said that they were kissing on the bed. Up until that time, they were kissing at the position described by the victim on Exhibit P1; cf Exhibit P11. By this time, the appellant had become “handsy”, he had rubbed her vagina over her underwear, they had then gone to the bed and the appellant continued telling her that she really wanted to have sex with him which she continually rejected. The appellant alighted from the bed and stood between the legs of the victim whose dress was pulled up to her waist exposing her underwear. The appellant commented on the attractiveness of the victim’s lingerie. The victim repeated that she did not want to have sex with him. The appellant again said words to the effect that she wanted to have to have sex with him.

The appellant then leaned down, pulled the victim’s lingerie to one side and put his finger on her clitoris (count 2: sexual intercourse without consent). The victim did not consent to this form of sexual intercourse. The appellant then pulled his pants down, exposed his penis, and then rubbed his penis on the outside of the victim’s vagina while saying that the victim wanted to have sex with him and how good it would be to have intercourse with him (count 3: act of indecency without consent). She again told him she did not want to have sex with him.

The appellant continued to ask the victim whether he could have sexual intercourse with her and say that she should just have sex with him. At the time, he was standing in front of her with his penis exposed. He asked her: “can I put it in now?” The victim said, “yeah sure” in a dismissive way. She said that her tone of voice was flat, and she was not giving him permission to have sexual intercourse with her, but that she could not go on fighting him. The appellant then penetrated her vagina with his penis. He commenced thrusting his penis into the victim’s vagina. The victim said that she did not actively participate in the sexual intercourse, and the appellant was not wearing a condom (count 4: sexual intercourse without consent). She looked to the side and made no sound. She was looking away from and not towards him.

The victim said that after intercourse had proceeded for a minute or two, and without the appellant ejaculating, she said she did not want to do this (anymore) and repeated that statement soon afterwards. The appellant continued the sexual intercourse for a short time; the victim put her hands on his chest and pushed him away as an indication that she did not wish the sexual intercourse to continue. The appellant removed his penis and stood slightly back into the room. The victim got up off the bed and sat on her desk chair in the room. The appellant continued to ask her whether she wanted to have sexual intercourse with him. He touched her on the thigh and attempted to kiss the victim when doing so. The victim told him to go; he left the room after telling her that she should not tell anyone what had happened.

The appellant came to the room of the victim on the next day, 8 October, after communicating with her on Snapchat and after she agreed that he could come to her room. In this conversation, the victim told him that nothing else (sexually) was going to happen and they agreed that he should leave her room. The victim made no allegation that the appellant had indecently assaulted her or had sexual intercourse with her without consent. There was a brief discussion between them sometime later at Mooseheads Bar, but nothing was said about the events of 7 October.

On 24 October 2022, the victim gave a recorded statement to the sexual offence response team of the military. At page 26 of the statement, the victim disclosed that the first person she spoke to was a Ms R W and her partner Mr H, but that was about a week later, towards the end of the week. She also had conversations with Ms C, the girlfriend of the appellant and with LM, one of her very good friends.

Mr FCHC was, at the time, also a cadet at the Academy and was familiar with both the victim and the appellant. He attended the cocktail evening on 7 October. Within the next week, he had dinner with the victim and afterwards he had a conversation with the victim in which she told him that after the cocktail evening she and the appellant had slept together. Without saying so, she implied that the sex was not consensual, and she was not happy that it happened. She said she was in bed or trying to go to bed when the event happened. Because of his persistence, it was just easier to have sex with him. In cross examination, Mr FCHC confirmed that the victim told him that, when the appellant came into her room, she was in bed, he sat on the beanbag (cf Exhibit 1 and Exhibit 11) and events proceeded from there. She mentioned kissing and that she gave up resisting because she did not have the strength anymore to fight him off. That is when she just rolled over and the sexual intercourse occurred.

SS, another complaint witness, had a conversation with the victim on 14 October. The victim said that she was sexually assaulted by the appellant, was crying and was distraught. SS agreed that, at the time of the conversation, the victim had already moved out of her accommodation. The independent evidence is that the victim moved out of her accommodation after 18 October. The interview with the military police happened on 24 October.

On 16 October, the appellant informed Ms C that he had slept with the victim two weeks earlier. Ms C telephoned the victim and asked whether she had had sex with the appellant. The victim admitted (after some initial denials) that she had sex with the appellant; that he had promised not to tell anyone; and that he told her that he and Ms C were no longer together as otherwise she would not have had sex (with the appellant). The victim made the admission to Ms C after Ms C said to her that she would not make up such a thing. When speaking to Ms C, the victim did not mention that she only agreed to kissing. Later the same day, Ms C sent a text to the victim informing her that the appellant had an STI. There was an exchange of texts in which the victim expressed her anger at the appellant for lying to her about his relationship with Ms C and not informing her of his medical condition. The victim said, inter alia, that she was about to “lose my shit with this bloke; sorry he has treated you this way; I am really fucked off”. The victim did not say to Ms C that the sexual intercourse with the appellant was not consensual because she thought that she did not need to know (Exhibit 5).

The victim then went to RW’s room and spoke to her and her partner, Mr H, telling them that something had happened with the appellant, she had found out that he was still with Ms C and that he had an STI at the time. In her evidence, RW said that when she came to the room the victim said that she had a problem, that she had sex with the appellant and now Ms C, his girlfriend, knows about it. She did not really want to have sex. She was concerned about having an STI and there was a conversation about going to a health centre. Mr H, the partner of RW, recalled the victim saying that she had a problem, that she had sex with the appellant and that Ms C knows about it.

The victim confronted the appellant after speaking with RW, Mr H and Ms C. He admitted that he was suffering from an STI. She was mad, was yelling at him saying that he was being ridiculous and needed to sort his “shit out”. She made no allegation that the sexual intercourse the previous week was not consensual.

The victim then went to the room of LM. She cried her eyes out and thinks that this was the time she realised that what had happened was not okay. She thought that this conversation occurred a week after 7 October and that she told RW and Mr H that she did not consent to the sexual intercourse. LM said that the victim said that the appellant came to her door, he was very persistent such that eventually she said (to sexual intercourse) “okay, sure” and then halfway through she turned around and “I guess got rid of consent is the way I’d put it … She said, ‘no get off’”. Because of his persistence, the only way she could see it stopping was to accept and consent. The victim agreed to the sex but stopped him halfway through because it was not what she wanted to happen. LM had not told the military police about that fact even though he was told this when she first spoke to him and he had been interviewed by the police.

The following day, the victim went to a health centre, got an STI test, asked for advice about her situation and was told that she had to report this event. She spoke to the military staff and a decision was made to investigate. She spoke again to RW and Mr H.

JNC, a Navy medic posted to the ACT health centre, saw the victim for an STI test. When taking blood, she asked the victim if the sex was not consensual. The victim shook her head to imply “no”, after the victim had asked if there was an extra test if the sex was not consensual. JNC then co-opted a more senior medic, and the victim told them both that the sex was nonconsensual, she said they had a night out, came back to her room, he was having “unconsensual” (sic) sex with her and she had to force him off her. JNC understood that the victim was drunk on the night, she recorded the victim telling her that the appellant followed her into her room (she could not recall if she was told he had forced his way into her room), and the victim said the appellant forced himself onto her.

The next day, the victim had a conversation with RW about the STI appointment and the question of whether the sex was consensual. The victim told her that she had informed the medic “no”. Later, in a separate conversation, the victim told RW that the appellant had “followed her into her room saying, ‘let’s do it’, the victim reluctantly said yes and during sex changed her mind, didn’t want it anymore, and started saying no”.

On 19 October, AJC had a conversation with the victim. At the time, she was a neighbour of the victim in the residential college. The victim said words to the effect that she had been pressured into having sex with the appellant and upon reflection realised that she had been pressured and no longer felt like it was consensual.

The appellant voluntarily submitted to three recorded interviews with military police. The last two of these interviews occurred following a request from the appellant to provide further information. The interviews were played to the jury, and the appellant did not give evidence. The interviews were his account of the events of 7 and 8 October 2022.

After being told of the allegations of the victim, the appellant said that he had bumped into the victim on or near a stairwell landing and a conversation followed. There was some touching. He asked whether she wanted to continue the conversation in her room, and she agreed. They went into her room and commenced kissing, touching, holding each other, cuddling and embracing as they moved further into her room towards her bed.

Consensual sexual intercourse upon her bed followed. The underwear of the victim was removed to her ankles; she closed the windows while they were on the bed as the lights in her room were on and she was conscious of the lack of privacy and the noise. He found the position in which intercourse occurred very uncomfortable. During intercourse, she held his body and was biting him on the ears and neck which he asked her to stop. Because of his discomfort, he withdrew his penis from her vagina, and he asked her if “it” was ok and whether she was finished. He withdrew his penis as he did not find the experience pleasurable. He had not ejaculated, and he asked if she wanted to go again. She said that she was finished and that she wanted to go out again to meet her friends she had seen earlier in the night. At no point did she tell him to stop, and it was he who decided to withdraw his penis. There was no occasion of intercourse without consent and the victim actively participated in the sexual intercourse by biting his ears and neck.

In cross examination, the victim denied this evidence of the appellant. She could not remember closing the window or closing the curtains. She denied biting the appellant on the ears or neck and she denied that he requested her to stop biting him. He did not ask her if she was okay. That was because he was frustrated with her and angry with her. He did not ask whether she enjoyed the sexual intercourse, and she did not say to him that he was getting better than last time. She was not kissing him before he left the room. She did not ever rub her bottom against his groin area and at no time was positioned in a way that such rubbing could happen. He did ask her continually whether she was sure that she was finished but that only occurred after she sat down on the desk chair. The appellant did not continually ask her to have sex with him. His comments were: “do you want to have sex with me?” And “come on, [name], you want to have sex with me”.

The immutable commencement point for the jury’s deliberations was that the appellant bears no onus of proof and the burden remains on the prosecution throughout to prove his guilt beyond reasonable doubt. In respect of each of the charged counts, the onus on the prosecution was to prove each element of each charged offence beyond reasonable doubt based upon the evidence which the jury accepts. The appellant was not under any obligation to give evidence in court. He had the right to remain silent. He willingly gave three interviews to military police, and those interviews were shown to the jury as part of the prosecution case. It was not necessary for the appellant to speak to the military police. He had the right to always remain silent.

One question for the jury in their deliberations was whether they considered the version of the events of the two days of 7 and 8 October 2022 given by the appellant was true or that it might reasonably be true. If the answer to either of those questions was yes in respect of the charged offence with which the jury were dealing, then it was incumbent on the jury to find the accused not guilty. If the jury did not consider the version given by the appellant to be true or that it might reasonably true, then it remained necessary for the jury to decide whether, upon the evidence which they found to be both truthful and reliable, they were satisfied beyond reasonable doubt of the guilt of the accused upon any of the charged counts. The jury did not accept the account of the events given by the appellant as being true or that it might reasonably be true on any of the charged counts. The jury were satisfied of the guilt of the appellant based on the whole of the evidence which they assessed as being truthful and reliable. These were all matters for the jury.

The appellant appeals from the verdict on counts 1, 2, 3 and 4. The first ground of appeal

The first ground of appeal provides: There was a miscarriage of justice in the appellant’s trial on account of jury irregularities that occurred during deliberations.

On day five of the trial, the learned trial judge commenced giving his directions to the jury and these were completed on the morning of the sixth day of the trial. The jury retired to deliberate upon their verdicts at 10:58am on that day. At 3:58pm on the same day, the court resumed, and the parties were informed of the following by the learned trial judge: “I’ve got a note from the jury, and I’ve also had a report from the Sheriff’s officers, 15:43 today: ‘We have a member of the jury unwilling to engage with the process’. The Sheriff’s officers have reported to me that there were raised voices and tension within the jury room, and they have temporarily separated the juror in question within the confines of the jury area just as a temporary measure.”

There was then a discussion between Bench and Bar. The learned trial judge proposed that he would send the jury home for the day. His Honour proposed that there be further discussion the next day about what further course he should adopt with the jury and the mechanics of it. It is apparent that his Honour was there referring to a further discussion with counsel the next day. Both counsel agreed. It was necessary for his Honour to inform the jury of his decision. The jury returned to the court at 4pm.

The jury note was read out to the court, and his Honour informed the jury he understood there had been some tension in the jury room and he proposed to send the jury home for the day. He said he would discuss with counsel what further assistance he can provide the next day, and he would not provide further directions that day.

On the following day, 9 April 2025, the learned trial judge informed counsel that he had formed a tentative approach and that a “light touch” was appropriate. His Honour said that the issue was one completely internal to the jury, there is no suggestion of an external influence, and it is part of the jury process for there to be tensions and disagreements in performing their role. His Honour said that he would give them the “be polite and keep going direction” and do no more.

Counsel for the accused proposed a slightly different course, to ask the jury to clarify what is meant by the expression “not engaging in the process” by sending the jury a note to that effect. The parties would then understand what the issue may be, and a direction could be fashioned to address the problem, the seriousness of which could not be currently ascertained. Once a note is received from the jury, a more specific direction could be formulated. His Honour was informed that the accused did not have any difficulty with what he was proposing.

The prosecutor proposed that the note-writer or the jury representative be sworn to give evidence concerning the issue. The prosecutor was concerned about tension and raised voices in the jury room, the segregation of one juror and the need for all jurors to feel safe and comfortable. The prosecutor agreed with defence counsel that the use of a note seeking clarification was the most appropriate process.

His Honour did not accept the submissions of the parties. He said he would not send a note seeking clarification of the problem (if any), and he would give a direction which emphasises the duties of jurors, for them to be effective communicators politely and that there should be further discussion. If they continue to have difficulties, the jury should send another note.

At 10:02am, the jury returned to the court. His Honour informed them again that the task of the jury is not necessarily easy, it may be challenging intellectually, emotionally or personally and attempting to reach unanimous verdicts through debate and discussion can readily generate disagreements. His Honour informed the jury that it would only be through further debate and discussion that they would be able to seek to resolve their disagreements and reach verdicts. They are to recall that they are all equals, no one has an entitlement to bully another, everyone should feel safe and comfortable to participate in the jury process and each has given an oath or affirmation to give a true verdict according to the evidence. Each of them should engage with the process of discussion and debate in an attempt to reach unanimity.

His Honour also advised the jury that they must listen carefully and be objective about the views of their fellow jurors, calmly weigh up opinions, test them by discussion, be polite and make a decision based only on the evidence. They are to return to the jury room and recommence deliberations. If they have further questions, they may send a note to the judge but that note must not disclose the content of any jury deliberations. The jury were then asked to retire to continue deliberating at 10:04am. At 10:34am, the court was informed that the jury had reached their verdicts which were announced at 10:35am. The verdict was guilty on all counts (counts 1, 2, 3, and 4).

The first ground of appeal asserts a miscarriage of justice on account of jury irregularities occurring during the deliberations of the jury: HCF v The Queen [2023] HCA 35; 280 CLR 978 at [3], [13]-[14], [46]. The appellant contends that there has been jury or juror misconduct. In that case, the appellant contends further that a fair-minded and informed member of the public might reasonably apprehend that the jury might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge (HCF at [11]). The appellant further contends that two significant concerns arise: first, a juror was unwilling to engage in the deliberations of the jury and second, there was a sufficient level of tension within the jury room such that a juror had to be separated from the remainder of the jury. Consequently, an inference arises either that the juror required separation due to the attitude of the other jurors to that juror or alternatively due to the juror’s own condition. In either case, it is said that the jury process had broken down and, without an enquiry of the jurors by the trial judge, it was not possible to be certain that any direction given would overcome the difficulty and so allow the jury to embark upon their task as jurors.

The appellant further contends that, if a juror is unwilling to engage in deliberations, there is a reasonable apprehension the juror might not engage in the central requirement to deliberate to reach a unanimous verdict. One consequence may be that, absent an enquiry of any member of the jury about the genesis of the issue which caused the separation of the juror, once the juror is required to rejoin the other jurors, that juror may more readily (inferentially, too readily) agree with the view of the other jurors. Alternatively, an inference arises that, having been required to rejoin the jury, the views of that separated juror were not worthy of consideration and the majority view prevailed (inferentially it appears to be suggested that this process led to the other 11 jurors th inveigling upon the 12 juror). A fair-minded member of the public might reasonably apprehend that the juror has not discharged that juror’s function to decide the accused’s guilt according to law. The direction given by the trial judge did not, on this argument, assist.

At the time that this issue arose, and at the time that the trial judge announced his intention to speak to the jury again after sending them home for the evening, neither counsel disagreed with the approach of the trial judge. When the court reconvened the following day, the learned trial judge reinforced to the jury: they are equals in the jury room; each of them has given an affirmation/oath to engage in the process and discussion about reaching a verdict which is unanimous; each of them must listen carefully and objectively to the others; and each of them must treat the others with respect and reach their verdicts based only upon the evidence. The jury were then asked to retire to the jury room to continue to consider their verdicts. The learned trial judge was not asked by counsel to provide any further directions to the jury.

Following the jury retiring again to the jury room, the learned trial judge did not receive any further information about any aspect of the behaviour of the jury as had occurred on the previous day. It was not incumbent upon the learned trial judge, nor was it appropriate for the learned trial judge, to make any enquiry of any member of the jury about what had occurred in the jury room after the jury retired to further consider their verdicts on that day. This recognises the common law rule that, in the usual course, a court does not have power to look behind a verdict given by a jury representative on behalf of the jury where verdicts are delivered in open court in the sight and hearing of the other jurors and without any disagreement by any of them. Such verdicts are presumed to be correctly communicated to the court. In this case, the jury representative informed the court that the verdicts reached were unanimous. Each member of the jury was present and heard the announcement by the jury representative of their unanimous verdicts. No occasion arose for any enquiry about whether the requirements of the Juries Act 1967 (ACT) had been contravened. This is because, once verdicts of the jury have been announced in open court in the hearing of all of the members of the jury who can hear and see what is happening, then it may be conclusively inferred that all members of the jury agreed with the verdicts then being announced: NH v DPP (SA) [2016] HCA 33; 260 CLR 546. Where there is no dissent from the verdict communicated, a presumption arises that the verdict is correctly communicated and that presumption is not rebutted by evidence admitted showing that a juror did not agree with the verdict (NH at [26]).

In NH at [96]-[97], Nettle and Gordon JJ said: 96 A verdict given on behalf of and in the presence of all members of the jury, without dissent, is the verdict of the jury. The act of each juror is judged and determined by the polling of the jury in open court, irrespective of motives or beliefs which may have led to the verdict and irrespective of the deliberations during retirement. The assent to a verdict by a juror is constituted by the express answer, here to the judge's associate, at polling in open court or by the silence that implies assent. The outward act is final, subject only, in the case of error, to correction before the jury separates. The purpose of formally polling the jury is to afford an opportunity of free expression by all jurors unhampered by fears or errors in private. That is the opportunity for jurors, or the jury as a whole, to correct the verdict of the jury before it separates. 97 Accordingly, the fact that the verdict as delivered was later said, by one or more jurors, to not have been assented to by one or more jurors, or is said to be different from the one informally assented to by one or some of them in the jury room, is no ground for later correcting or setting aside the verdict. Moreover, even if a juror were mistaken or unwilling in the assent given in the jury room it would be no ground for later setting aside the verdict if, when the verdict was given without dissent, the juror committed themselves to the verdict as delivered.

At the time of the delivery of their verdicts in this case, a poll was taken of the jury members to afford them an opportunity for free expression of any dissenting views, unaffected by any fear or misgiving felt personally by any juror. That was an opportunity for a juror, within the protection of the court environment, to speak up if the juror held a dissentient view. This recognises the continuing operation of the common law rule that no evidence would be received from a juror who, after announcement of a verdict and after separation of the jury, announces disagreement with the verdict given or was too frightened to stand up and say so: NH at [103]-[105]; Nesbitt v Parrett (1902) 18 TLR 510; R v Roads [1967] 2 QB 108; Nanan v The State (Trinidad and Tobago) [1986] AC 860 at 861. This further reinforces the requirement for the preservation of the confidentiality of jury deliberations. The basis of the common law rule is first to enable jurors to involve themselves in frank and sometimes heated debate in fulfilling their task in the knowledge that what is said remains completely confidential to the jury room. The second is to protect the finality of the verdict: Smith v The Queen [2015] HCA 27; 255 CLR 161 at [33], [35]; Smith v Western Australia [2014] HCA 3; 250 CLR 473 at [31]; NH at [103]-[105].

There are further common law principles that require discussion to comprehend the application of the principles on which the appellant relies. The critical importance of the jury system in Australia has been continually affirmed in a series of High Court decisions. Appellate courts assume that juries understand and follow the directions they are given by trial judges: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [31]. In Gilbert, the oft quoted observation was made by McHugh J at [31] that, unless juries act on the evidence and in accordance with the directions of a trial judge, there is no point to a trial by jury. These are some of the foundational tenets of the jury system. They must be understood to properly analyse and decide upon this first ground of appeal. At the forefront of these principles is the inviolability of the decision-making process within the jury room.

In HCF, all the members of the jury disobeyed the clear directions of the trial judge on important matters. This disobedience by the jury involved: (a) internet research by one juror concerning comparable sentences for the offences charged. (b) that juror sharing the research with other jurors, the jury discussing sentencing practices and some members of the jury reaching concluded positions on sentencing practices; and (c) every member of the jury disobeying the trial judge’s direction to report any internet research in a note to the bailiff.

All this irregular conduct was, and was known by members of the jury to be, in blatant disregard of the trial judge’s directions. The behaviour of the jury members was misconduct which infected the whole of their deliberations and was a serious denial of procedural fairness to both the accused and the Crown. The trial judge was not made aware of these matters, and the trial was not aborted. Not only was there a real chance the jury did not decide the guilt or innocence of the accused by strictly following the rules of procedure and evidence in accordance with the trial judge’s directions, but it is also known that the jury did not. A miscarriage of justice took place.

The focus of the High Court judgments was whether irregular conduct by a jury or juror involved a miscarriage of justice. At [11], Gageler CJ, Gleeson and Jagot JJ (who for the sake of convenience only, and not accuracy, we shall call “the plurality”) held that irregular conduct by a jury or juror involves a miscarriage of justice if a fair-minded and informed member of the public might reasonably apprehend that the jury or juror might not discharge its function of rendering verdict according to law, on the evidence, and in accordance with the directions of the judge. It is accepted that, by the repetition of the modal verb “might”, a two-step process is created and is required to be satisfied. The plurality then went on to hold at [11]: If the jury or juror misconduct would give rise to such reasonable apprehension then, for that reason, the misconduct will involve a “failure to observe the requirements of the criminal process in a fundamental respect”. In such a case, “satisfaction of the reasonable apprehension test means that the “shadow of injustice over the verdict” cannot be dispelled, that the trial is “incurably flawed”, that there has been a “serious breach of the presuppositions of the trial” and that the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict”. (Citations omitted).

In the application of this test, it is necessary for a finding to be made that those relevant factors which may be inferred from the available material satisfy the test of proof on the balance of probabilities. The plurality at [13] said that, in undertaking this exercise, “’[o]ne does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed’; inference requires ‘something more than mere conjecture, guesswork or surmise’” (citations omitted).

At [15], the plurality affirmed the operation of the common law rule excluding evidence of the jury’s deliberations when embarking upon the fact-finding process but held that the common law rule is informed by the underlying policy to maintain the integrity and finality of a formally expressed verdict. Thus, the rule does not apply to evidence extrinsic to the deliberations of the jury. In HCF, the court received affidavit evidence from the sheriff about a note received from a troubled jury member informing him of the misconduct of the other members of the jury in their deliberations, after the delivery of their verdicts. The report of the sheriff was properly admitted into evidence, and the exclusionary rule did not arise for consideration. In the same context, the plurality also reaffirmed at [16] that, under the applicable Juries Act equivalents, members of the jury must be sworn/affirmed to give a true verdict according to the evidence, on the issues to be tried and “Apprehension of the violation of that oath is not lightly to be inferred” (emphasis added): HCF at [16].

In this case, the learned trial judge was made aware of disagreement between jurors sufficient to prompt the sheriff to separate one of the jurors. The note received by the trial judge indicated that one of the jurors was not participating in the jury process. The learned trial judge raised the matter with counsel, received submissions, and decided to allow the jury to retire for the evening and to reassemble the following day. At that time, they would be informed again of their obligations as jurors to the court and to the prosecution and defence, the process of fact-finding upon which they had embarked and finally, their obligations to each other. At the time that the jury reassembled, no occasion arose for an enquiry to be made of them about the disagreement that led to the separation. Commonly in directions given to juries, they are encouraged to robustly discuss the material and their assessment of the evidence, to disagree as need be and that they may reach their verdicts by different pathways. It is not the role of this court to conjecture about the human condition and how twelve diverse people react to disagreements that juries are encouraged to have. A failure to observe the need for robust discussion would be disquieting. Juries understand the seriousness of the task on which they embark.

The jury had been assembled in the jury room for the best part of the day. No occasion arose which gave rise to an inference that some specific event happened or some state of affairs existed such that the integrity of the jury process had broken down or that there was any failure to observe the requirements of the criminal justice process in some fundamental respect. To the contrary, the jurors were reassembled the following day and were directed by the learned trial judge in the manner already described. The jurors had retired the previous evening and so they were given time to privately reflect upon the events of the day. It is not possible, for example, to enquire into the process that may have taken place after the learned trial judge gave permission to the jury to retire for the evening. A court may not conjecture about what might have been discussed in the context of the jury process prior to the jurors separating for the day. That does not satisfy the description of evidence extrinsic to the deliberations of the jury. Nor is it possible to enquire into the minds of each of the jurors in connection with their private reflections overnight and the next day or to enquire into the effect of the repetition of directions given by the learned trial to the jury on the following morning.

On that second day, the jury continued to undertake the process upon which they had received directions. There is no factual basis to infer that the jury or any member of the jury violated the oath given as a juror. The brevity of time spent in the jury room on the second day does not give rise to a serious breach of the presuppositions of a fair trial. It reflects further consideration by the jurors in that particular situation and together having been given further directions by the trial judge. A fair-minded, informed member of the public would not reasonably apprehend that the jury or a juror might not have discharged the function of deciding the guilt or innocence of the appellant according to law, on the evidence and in accordance with the directions of the trial judge. We would dismiss the first ground of appeal.

Section 54(1) prescribes the following elements to be proved beyond reasonable doubt to prove that an offence has been committed: (a) the accused engaged in an act of sexual intercourse with the complainant; (b) the accused intended to engage in the act of sexual intercourse with the complainant; (c) the complainant did not consent to the act of sexual intercourse; and (d) the accused was reckless as to whether the complainant consented to the act.

Section 54(5) prescribes that proof of knowledge or recklessness is sufficient to establish the element of recklessness. The intention of the legislature appears plain enough that when a jury is asked to consider the element of recklessness, the jury will be required to assess the element in the background of the knowledge or recklessness of the accused person. Consequently, if a jury is satisfied beyond reasonable doubt that the accused knew that the complainant was not consenting, that knowledge is sufficient to prove the element of recklessness. The burden of proof of such knowledge always remains upon the prosecution and no burden of proof may shift to the accused.

The combined operation of ss 54(1) and (5) has the consequence that a trial judge giving directions on the element of recklessness will include the following: (a) that the accused knew that the complainant was not consenting; or (b) that the accused realised there was a possibility that the complainant was not consenting and proceeded anyway; or (c) that the accused did not even consider whether the complainant was consenting or not. That is, the accused was indifferent to the complainant’s consent and went ahead anyway; or (d) that any belief the accused had or may have had that the complainant consented to the act was not reasonable in the circumstances.

The content of paragraph (a) above, referring to the knowledge of the accused, derives from the operation of ss 54(1) and (5) of the Crimes Act.

Section 67 of the Crimes Act provides: 67 When a person does not consent to an act (1) For a sexual offence consent provision, and without limiting the grounds on which it may be established that a person does not consent to an act mentioned in the provision, a person does not consent to an act mentioned in the provision if the person— (a) says or does something to communicate withdrawing agreement to the act either before or during the act; or (b) participates in the act because of the infliction of violence or force on the person, or another person, an animal or property; or (c) participates in the act because of a threat to inflict violence or force on the person, or another person, an animal or property; or (d) participates in the act because of extortion, coercion, blackmail, intimidation or a fear of public humiliation or disgrace of the person or another person; or (e) participates in the act because of a threat to mentally or physically harass the person or another person; or (f) participates in the act because of force or fear; or (g) is incapable of agreeing to the act because of intoxication; or (h) is mistaken about the identity of the other person; or (i) participates in the act because of fraudulent misrepresentation of any fact made by someone else; or (j) participates in the act because of an intentional misrepresentation by another person about the use of a condom; or (k) participates in the act as a result of an abuse of— (i) a relationship of authority, trust or dependence; or (ii) a professional relationship; or (l) does not have the capacity to agree to the act; or (m) is unconscious; or (n) is asleep; or (o) is unlawfully detained or knows that another person is unlawfully detained. (2) A person also does not consent to an act with another person (the accused person) only because the person— (a) does not say or do something to resist the act; or (b) consented to— (i) another act with the accused person; or (ii) the same act with the accused person at a different time or place; or (iii) the same act with a person other than the accused person; or (iv) a different act with a person other than the accused person. (3) If it is established that an accused person who knows, or is reckless about whether, the consent of another person to an act mentioned in a sexual offence consent provision has been caused by any of the circumstances set out in subsection (1) (a) to (o), the accused person is taken to know that the other person does not consent to the act. (4) An accused person is taken to know that another person does not consent to an act mentioned in a sexual offence consent provision if any belief that the accused person has, or may have, that the other person consents to the act is not reasonable in the circumstances. (5) For subsection (4), without limiting the grounds on which it may be established that an accused person’s belief is not reasonable in the circumstances, the accused person’s belief is taken not to be reasonable in the circumstances if the accused person did not say or do anything to ascertain whether the other person consented. (6) In this section: intoxication—see the Criminal Code, section 30 (1). sexual offence consent provision means any of the following: (a) section 54; (b) section 55 (5) (b); (c) section 60; (d) section 61 (5) (b).

Section 67(4) informs the content of the element described in subparagraph 72(d) above and the ways in which the element of recklessness can be proven beyond reasonable doubt by the prosecution. In making their assessment about proof of one or other of these possible pathways to proof of this element, the jury is entitled to take into account the whole of the evidence before it and may, for example, draw such inferences as it deems fit from any portion of the evidence which it finds to be truthful and reliable.

The learned trial judge directed the jury on the element of recklessness on several occasions. First, at the outset of the summing up, after giving the usual general directions about how the jury was to go about their task, the trial judge provided the jury with an “elements document” (MFI 1). That document set out the elements of both offences, the definition of sexual intercourse, some directions about consent and a direction about recklessness as to absence of consent. Under the heading “reckless as to absence of consent”, the elements document said: Reckless as to absence of consent A person is reckless as to the absence of consent if: (a) they know that the person does not consent; or (b) they are aware of a risk that the other person does not consent; or (c) they are indifferent as to whether or not the complainant consents and go ahead anyway. A person is taken to know that a person does not consent to a sexual act (and hence is reckless) if any belief that the accused person has that the other person consents to the act is not reasonable in the circumstances. (a) Without liming the grounds upon which it may be established that the accused’s belief is not reasonable, if the accused person did not say or do anything to ascertain whether the other person consented then the accused’s belief is not reasonable.

After providing copies of the elements document to the jury, the trial judge took them through the elements section and the definition of sexual intercourse. He drew their attention to the section on consent and said he would address the topic of consent the next day.

The trial judge then took the jury through the section on recklessness. By reference to the elements document, he directed the jury that recklessness can be established in one of three different ways: that the person knows that the other person does not consent, or that they are aware that there is a risk that the other person does not consent, or that they are indifferent as to whether or not the other person consents and goes ahead anyway.

On the next day, the learned trial judge took the jury back to the elements document to add to what he had said the previous day. In relation to element (4), “the accused was reckless about whether the complainant consented to that intercourse”, the trial judge directed the jury that this element “relates to what is going on in the mind of the accused”. He then returned to the additional directions under the heading “reckless as to absence of consent”, reminded the jury that he had taken them yesterday through the three ways recklessness can be established and then took them through those ways again. The trial judge then continued by reference to the elements documents: If a person - what is said after that, that is a person is taken to know that a person does not consent to a sexual (sic) and hence is reckless, if any belief that the accused person has that the other person consents to the act is reasonable in the circumstances. So that is, if there is a positive belief that the person is consenting, then neither (a), (b) or (c) would apply. But this rule says that even if somebody thinks that the other person is consenting, if you decide that that belief was not reasonable in the circumstances, then they are deemed to know that the other person is not consenting, and as a consequence be reckless within the meaning of the element.

In a later part of the summing up, the judge went through each of the counts and identified the acts relied upon by the prosecution. He directed the jury that, if they were satisfied beyond reasonable doubt that there was not free and voluntary consent, they would need to consider the question of recklessness. He reminded them that recklessness relates to what was in the accused’s mind. He said that, as the Crown had put the case, this question arises at the point where intercourse commenced, when the complainant said “yeah, sure” and also during the continuation of the sexual intercourse when the complainant had her head to the side. In that context, he directed the jury that they needed to consider whether recklessness in one of those ways has been established beyond reasonable doubt. He said “if you accepted the evidence of the accused that he believed that the complainant was consenting, you would then need to ask the question as to whether or not the belief was reasonable in the circumstances. And if not reasonable in the circumstances, then that would mean the conduct was reckless”.

The appellant contends that the directions do not reflect the terms of s 67(4) of the Crimes Act because that subsection does not require acceptance by a jury that the accused person actually believed the complainant consented to the act. The appellant contends that this is because the provision refers to “any belief that the accused person has or may have”. Where an accused forgoes the right to silence and gives an account in a police interview or gives evidence, after informing the jury that an accused does not shoulder any burden of proof, a trial judge is required to give a Liberato direction: Liberato v The Queen (1985) 159 CLR 507 at 515. If the jury accept the evidence/account given by an accused, the jury must acquit. If the jury consider that the evidence/account might reasonably be true (even though they are unable to accept it as true), the jury must acquit. If the jury completely reject his version under either of those possibilities, they will put it to one side and focus only upon whether the guilt of the accused has been proved beyond reasonable doubt upon their assessment of the whole of the other evidence before the court.

The appellant's submissions focussed upon the second of those alternatives and the consideration by the jury of the requirement of recklessness. The appellant submits that the wording of s 67(4) requires a jury to consider the belief that the accused “has or may have” and contends that a trial judge must direct the jury of both possibilities. He submits that these are alternatives and so must be separately addressed by the trial judge and considered by the jury. Implicitly, he submits that these words posit separate tests that must be addressed and satisfied. The appellant further submits when considering the prescriptions within sub placita (a), (b) and (c) of the directions, if the jury are satisfied that it is a reasonable possibility that the accused believed the complainant was consenting, then these subparagraphs have not been satisfied as a pathway to guilt. The appellant points to the evidence of the victim (and the account of the appellant is) that at the time of penile/vaginal intercourse, the appellant asked permission to penetrate the vagina of the victim who said words to the effect of “yeah sure”. Intercourse followed; in her evidence the victim said that she told the appellant on many occasions she did not want to have sexual intercourse and her attitude and body language made obvious that she did not consent to intercourse. She then said she did not want it to continue, and she pushed the appellant away from her. On his account, the appellant said that he withdrew voluntarily because of discomfort. The appellant contends that a reasonable possibility of belief in consent is manifest.

In the context of the events occurring within the victim’s room that night, the use of the expression “yeah sure” and the other behaviour of the victim has been accepted by the jury as not communicating consent but as a form of expression she used to indicate her will was overborne and so her consent was not given freely and voluntarily. The jury rejected the version given by the appellant as true or reasonably possibly true and then did not accept the possibility of the belief of the appellant based upon the version given by the victim. Having been given an inference direction, the jury were required to consider whether an inference arose that, based upon the evidence given by the victim and the account of the appellant, the appellant may have genuinely believed that the victim was consenting or alternatively whether that belief was reasonably possibly true. Recklessness pathways are very often connected with decisions made by a jury about an inference to guilt beyond reasonable doubt of the elements of the offences. Such an inference could be the only inference available on the evidence. The jury heard and considered all the evidence, did not accept the account given by the accused under the first two limbs of the Liberato direction and then found that the elements of the offence had been proved beyond reasonable doubt based upon the evidence it assessed and accepted as truthful and reliable.

The appellant contends that, where there is a reasonable possibility that an accused believed the complainant was consenting then the mental states in (a), (b) and (c) of the written directions have not been established beyond reasonable doubt. It would only be at that stage the jury would consider whether the prosecution had established beyond reasonable doubt that any belief about consent that the accused “may have (had)” was not reasonable in the circumstances. It may be accepted that those directions did not exactly replicate the wording of s 67(4) in that they referred only to “any belief that the accused person has” whereas the section refers to “any belief that the accused person has or may have”. It would undoubtedly have been preferable to adopt the language of the section. However, the critical question is whether the omission of the words “or may have” derogated from the Liberato direction. We are not persuaded that it could have had that effect.

Logically, the omission of the words “or may have” could only be relevant to the second limb of the Liberato direction, which tells the jury they must acquit if, although they do not believe the accused’s version, they think it might reasonably be true. The appellant’s submissions implicitly assume that the omitted part of the s 67(4) direction (the reference to any belief that the accused person may have) correlates to that second limb of the Liberato direction. Even assuming that is a correct analysis, the omission could not have undermined the import of the Liberato direction because the operative part of the s 67(4) direction is the requirement for the jury to be satisfied, before they could convict the accused, that any belief was not reasonable. Upon analysis, the effect of the omission, if it had any effect, was not unfavourable to the accused. The effect of the omission was to carve out from one of the paths to acquittal, the requirement to be satisfied that the belief was not reasonable. It makes no sense to conclude that the jury might have reasoned “if we think he had a positive belief, we have to be satisfied that it was not reasonable, but if we only think he might reasonably have had that belief, we don’t have to be satisfied of that”. Even if the jury did reason in that way, the effect of that reasoning would be favourable to the appellant.

We have given separate consideration to whether, leaving aside the Liberato direction, the omission might have derogated from the directions as to the onus and standard of proof. We do not consider that it could have had that effect. It is not necessary for a trial judge to repeat the standard of proof in every other trial direction. In our assessment, in the part of the summing up complained of, the jury would have understood the trial judge to be explaining an aspect of the law of consent. There is no reason to think they would have linked those directions back to the directions about the standard of proof and reasoned that, because the judge referred only to a belief the accused had and omitted reference to a belief he may have had, his earlier direction as to the requirement to prove every element of the offence beyond reasonable doubt must not apply to the element of recklessness. We would dismiss Grounds 2 and 3 of the appellant’s notice of appeal.

Section 110 of the Evidence Act provides: 110 Evidence about character of accused persons (1) The hearsay rule, opinion rule, tendency rule and credibility rule do not apply to evidence presented by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character. (2) If evidence presented to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, opinion rule, tendency rule and credibility rule do not apply to evidence presented to prove (directly or by implication) that the defendant is not generally a person of good character. (3) If evidence presented to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, opinion rule, tendency rule and credibility rule do not apply to evidence presented to prove (directly or by implication) that the defendant is not a person of good character in that respect.

Section 112 of the Evidence Act provides: 112 Leave required to cross-examine about character of accused or co-accused A defendant must not be cross-examined about matters arising out of evidence mentioned in this part unless the court gives leave.

Under s 110 of the Evidence Act, the hearsay rule (s 59), the opinion rule (s 76), the tendency rule (s 97) and the credibility rule (s 102) have no application to the evidence sought to be adduced by the accused about his good character or to any evidence led by the prosecution in rebuttal. The evidence sought to be led was that the appellant was a person of good character in a particular respect (s 110(3)), namely his behaviour in an intimate relationship at the times of such intimacy with Ms C. The authorities make clear that evidence of good character is not evidence as to credit. Very often trial judges warn juries that even though evidence of good character is before them, this does not mean that an accused would not this time have committed the charged offence.

Good character evidence may rationally affect the assessment by the jury of the probability the accused committed the offences charged (TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [35] (Gleeson CJ), and at [94] (McHugh J). Not all such character evidence will assist the jury in its assessment of the probability of the appellant committing the charged offences. There have been differences of opinion in the various courts about whether the right of the prosecution to lead rebuttal evidence against an accused who is not of general good character, is limited to the particular respect(s) raised by the accused’s evidence so that the right of rebuttal is limited to those matters, divided from other broader evidence that may be thought to be contextually relevant; (cf Davies J in R v AKB (No 7) [2018] NSWSC 1120 and N Adams J in R v Wiggins (No 7) [2022] NSWSC 1249 which are both interlocutory judgements).

In Melbourne v The Queen [1999] HCA 32; 198 CLR 1, Kirby J (though in dissent on the result), held that character refers to a “permanent and unchanging pattern of the nature of the individual concerned” (at [105]). McHugh J held at [33] that “…character refers to the inherent moral qualities of a person…(their) disposition...”. In Bishop v R [2013] VSCA 273 (at [8]) Redlich JA made observations about an accused raising character in a “particular respect”. His Honour said that the phrase “in a particular respect” means pertaining to a particular characteristic, such as gentleness, generosity or good citizenship. It may take its meaning from context such as evidence from work colleagues about the accused’s honesty in employment or from relatives as to his good parenting skills.

Section 110(3) of the Evidence Act enabled the prosecution to lead evidence in rebuttal of the character evidence sought to be led by the appellant from Ms C. Such evidence in rebuttal may include evidence of the nature of the individual concerned and his general characteristics where the appellant proposed to lead evidence from Ms C about his respectfulness and alertness to the needs and requirements of his intimate female partner. In our view the learned trial judge was correct to permit the prosecution to lead the proposed rebuttal evidence from Mr C about the characteristics and disposition of the appellant in the context of his behaviour generally towards women in specific social situations. In so deciding we are not expressing any general or prescriptive view about how people are to behave in any particular social situation. And we reiterate that the appellant did not press the issue of leading evidence of good character after the decision of his Honour was announced. We would dismiss this ground of appeal

A further complication is that, in directing the jury, the learned trial judge interpolated that the appellant's version was not given under oath. The prosecutor did not make this submission. The learned trial judge did not tell the jury that the prosecution contended for any particular result because of the appellant failing to give evidence. The jury were not directed that they should give less weight to the answers given by the appellant in his interview or that the jury should treat the interview differently to any other evidence of the witnesses who had given evidence in court.

Importantly, however, trial defence counsel took no objection to the directions given and did not seek any further direction. As noted in Hudson at [123], the absence of any objection by trial defence counsel is “a cogent indication that counsel perceived that no injustice was occasioned” to her client.

In the result, it appears that although it may have been preferable for the jury to be given a direction in the terms of the first two ingredients of the Azzopardi direction, there was no realistic possibility that the jury assessed the account given by the accused in the police interviews in any different way than would have occurred if the first two ingredients of that direction had been given to them.

For those reasons, leave to rely on this ground of appeal should be refused.

The principal submission of the prosecutor was that the appellant’s lies about consumption of alcohol having been proved, those lies and his willingness to make them, could be used by them in their assessment of the credibility of the account given by the appellant and the other evidence before the court. The prosecutor did not invite the jury to reason to a consciousness of guilt of the accused but submitted the jury may use that material in their assessment of the credibility of the evidence of the witnesses following the directions of the trial judge.

A pre-trial application was made for a ruling that the appellant’s interviews with the military police not be admitted for several reasons. One of the grounds for exclusion was the presence of the appellant’s superior officer at the initial interview, the effect of his presence being that the accused felt compelled to answer questions in a particular way which was not truthful and that the statements were an otherwise exculpatory version provided by the appellant. That application was dismissed and, in the reasoning of Baker J, her Honour postulated that a jury would be given a direction about lies in accordance with Zoneff, being that the lies were relevant only to the jury’s assessment of the credibility of the accused and not used to prove his guilt. That direction was not sought or given. This was an obiter observation by her Honour that if during the trial, submissions were made by the prosecutor that the appellant told lies as a consciousness of guilt, then the trial judge would give the jury a Zoneff direction. The comments by her Honour did not impose an obligation on or create an imperative for the trial judge to give such a direction in the absence of any need so to do. Otherwise, the jury would be given a direction on a matter that had not been the subject of submissions by counsel at trial, the jury would likely be left in a state of some confusion and the appellant would suffer prejudice as a result because of the focus of such a direction upon the admitted inaccuracies in the account given to the military interviewers by him.

In the absence of any submission by the prosecutor of lies told by the appellant as consciousness of guilt, the only direction that a trial judge may choose to give is that the jury may take into account the admitted lies in the assessment of the creditworthiness of the evidence of the witnesses about which they had been given specific directions by the trial judge. In the situation where, at the close of evidence, submissions on that topic had been made by counsel for the parties and there was no occasion to give a Zoneff direction as a result, no error is shown in the approach of the learned trial judge on this topic. Counsel for the appellant made the sound tactical choice at trial not to ask for such a direction for those reasons and to obviate a prejudicial distraction of the jury from their task. And for these reasons we are not satisfied that there was a real danger the jury might apply a process of reasoning that the lies were evidence of the guilt of the appellant: Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at [34].

As with ground 5, the absence of any objection by trial defence counsel is “a cogent indication that counsel perceived that no injustice was occasioned” to her client.

For those reasons, leave to rely on this ground of appeal should be refused. The seventh ground of appeal

Ground seven is that the verdicts of guilty on counts 1 to 4 are unreasonable and cannot be supported having regard to the evidence at trial.

The principles to be applied in determining a ground that the verdict is unreasonable or cannot be supported by the evidence are well known. Those principles have been summarised in the decisions of this Court in Warne v The King [2023] ACTCA 1; 374 FLR 311 at [26]-[30] and Garay v The Queen (No 3) [2023] ACTCA 2 at [12]-[15]. The central task for this court is to make an independent assessment of the whole of the evidence, both as to its sufficiency and its quality, with a view to determining whether it was open to the jury to be satisfied of the appellants’ guilt beyond reasonable doubt. In determining that question, account must be taken of the advantage which a jury has in seeing and hearing the evidence: M v The Queen [1994] HCA 63; 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ). In Pell v The Queen [2020] HCA 12; 268 CLR 123 at [39], the High Court said that the function of the appellate court in such a case: proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

Under this ground, the court is required first to assess the evidence and then address the question whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. The second question to be addressed is whether, if there is a doubt (if that be the case) it can be resolved by the advantage of the jury in seeing and hearing all the witnesses led at trial. The greater the doubt that the appellate court might have, the less significance would be placed upon the advantage of the jury in seeing and hearing all of the witnesses. These are all matters of fact and degree because of the real disadvantage an appellate court has in assessing evidence that is presented merely in paper form. Expressed another way, the advantages of evidence being presented in the oral tradition of criminal trials is well understood and is paramount in our system of justice. It is not to be put aside or ignored based on what may only be a difference of view about the weight, credibility or meaning of particular pieces of evidence. A difference of view is insufficient to discharge the burden that the verdict of the jury is not supported by the evidence led at trial.

The appellant contends that the verdicts of the jury on counts 1 to 4 are unreasonable for reasons that are directly and indirectly connected with what the appellant contends is the unsatisfactory nature of the evidence given by the victim. The appellant first contends that when the evidence about complaint is fully understood, there is a high likelihood that subsequent to the events, the victim has “re-evaluated” whether the sexual encounter was consensual. The second ground is that because the events took place inside the room of the victim who had willingly taken the appellant into her room on that night, the jury could not be satisfied beyond reasonable doubt that the whole of the sexual activity was other than consensual. The appellant focuses on the evidence of Ms C in relation to the first ground. It is known that nine days after the event of 7 October 2022, Ms C confronted the victim about the encounter in her room on that night and whether sexual intercourse had occurred, which the victim denied, and then later on that same day (16 October 2022) Ms C sent a message to the victim about the appellant having an STI.

The appellant then relies upon the subsequent conversations between the victim, RW and Mr H and the conversation with Mr M in which he said that the appellant was very persistent, and she eventually agreed to sexual intercourse but told him to stop halfway through. It was not the Crown case that the offending act was the failure to immediately withdraw when the victim withdrew her consent but rather that she did not give consent at any time.

The appellant also relies upon the evidence of the victim that when she found out about the STI, she reconsidered the entire night but denied that, in that context, she was an active participant. The victim initially denied to Ms C that she had had sexual intercourse with the appellant. The conversations with RW and Mr H involved the victim informing them that she had sexual intercourse with the appellant, that she had reluctantly said yes and had later withdrawn her consent, but that she did not want to have sex with the appellant from the outset.

The principal contention of the appellant is that there was a re-evaluation by the victim about what had occurred on 7 October 2022 during and as evidenced by the events that occurred subsequently, particularly the confrontation with Ms C, learning about the STI and the other conversations that she had with the other complaint witnesses. The possibility of re-evaluation was put to the victim in cross-examination, and she denied that contention. She also denied that what she was then saying about consent was merely a reconstruction of the events in light of her telling RW and Mr H that she had slept with the appellant and then her conversations with Mr M.

A review of the transcript discloses that at trial, senior counsel for the appellant very forcefully put submissions to the jury consistent with these arguments now put by the appellant. The jury had the advantage of hearing and evaluating all the submissions of counsel and the directions of the trial judge after having heard the evidence. The arguments about re-evaluation and the events of the night in the room of the victim were thoroughly canvassed and were fresh in the minds of the jury. These were issues for decision by the jury, and they were free to accept or to reject the very thorough and forceful arguments put by senior counsel for the appellant. Similarly, in relation to the state of mind of the victim on the issue of consent, the jury had all the evidence presented to it, the submissions of counsel and the directions of the trial judge.

In the circumstances of this case, the assessment of the complainant’s evidence was a matter in which the jury had a significant advantage over this court. This is not a case in which there are “inconsistencies, discrepancies, or other inadequacy” in the evidence or other evidence that demonstrate that the jury, acting rationally, ought to have entertained a doubt.

The decision for the jury was whether they found the charged offences proved beyond reasonable doubt. Their decision of a finding of guilt was made after having the benefit of the evidence, the submissions of counsel and the directions from the learned trial judge. Based on our own independent review of the evidence, we are not persuaded that the jury ought to have entertained a doubt as to the appellant’s guilt on any of the counts on the indictment. The verdicts were open in the required sense. We would dismiss this ground of appeal.

Accordingly, the Court makes the following orders: (1) Grant leave to appeal on grounds 2 and 3 in the appeal against conviction. (2) Refuse leave to appeal on grounds 5 and 6 in the appeal against conviction. (3) Dismiss the appeal against conviction. (4) Dismiss the Director’s appeal against sentence, reserving reasons.