Rubinstein v R

Character witnesses

1. The applicant called a character witness, Warren Treloar, who knew the applicant through work. He described the applicant as a "sensitive young man for his age" who was "very sympathetic … towards all people … in life, regardless of their sex, colour, demeanour". Mr Treloar's reaction to learning of the allegations was "one of disbelief". He was unaware of the applicant's cocaine use.
2. Another character witness, Marie-Louise Singh, described the applicant as "Considerate. Kind. Funny. Trustworthy. Very loyal. Yeah, just very nice, reliable person, a friend to have".
3. Michael Lucic gave evidence that he had known the applicant for about 15 years. They worked, went motor bike riding and exercised together. He described him as a "caring guy" who was "respectful" around women. He said that, to his observation, the applicant became "probably more caring" when intoxicated with alcohol and cocaine.

The applicant's evidence

1. The applicant gave evidence of the lead-up to being at Cassandra's place, which is unnecessary to recount in light of the agreed facts as set out earlier. He said that he and the complainant were kissing passionately on the couch at Cassandra's place with their arms around each other. He said that, before she went to bed, Cassandra told them that they were welcome to stay the night. He made his way into the second bedroom and asked Aaron, who was going to sleep on the couch, to set the alarm for 6am because they both had to work the next day.
2. He said that as the complainant came to the spare room, she told him and Aaron that she was not going to sleep with anyone, to which the applicant responded that it was fine with him. According to the applicant, the complainant then stripped down to her "undies and top" and got into bed. He and the complainant then started kissing. He was unsure who initiated it. He started to "finger" her vagina and she started "moaning with pleasure, and was a willing participant". She did not say anything otherwise and did not try to move his hands away. This continued for between two and five minutes after which he moved his mouth down her body. She lifted her hips up and he removed her underpants and performed oral sex on her. She was moving side to side and there was "a little bit of moaning". At no time did she tell him to stop or did she pass out. Afterwards, he lay on his back and the complainant performed oral sex on him. Although he was "moaning of enjoyment", his penis did not become erect.
3. According to the applicant, the complainant then suggested that they have sex, which he understood to mean penile-vaginal sex, to which he responded, "We can give it a go, but I don't like my chances, because I've done coke, and sometimes [when] I do coke, I can't get an erection". For a while he got on top of her and tried to insert his penis into her vagina but as he could not get an erection, he stopped and apologised. The complainant then announced that she was going to get an Uber and go home. He suggested that they stay there and leave in the morning but she insisted on going home. Before she left, he said, "It was nice to meet you". He denied that the complainant had ever told him to stop or tried to push him away. He also denied that she was unconscious or asleep for any of the acts.
4. When he woke in the morning, he realised that he was going to be late for work so he woke Aaron. He ordered an Uber and went back to his place in Paddington. When he was contacted a couple of weeks later by police, he felt "[c]omplete shock … sick in the stomach … a shell of myself … didn't understand what was going on …[c]omplete confusion … disbelief …". In cross-examination, the prosecutor put the Crown case to the applicant, which he denied in so far as it related to whether the complainant consented and his mental state as to her consent.

Aaron's evidence

1. Aaron gave character evidence for the applicant, describing him as "a lovely guy" who "treats [women] with respect".
2. Aaron said that he recalled that the complainant and the applicant were kissing on the couch at Cassandra's place and that she was "laying in his lap basically". Aaron said that he recalled the complainant saying, before she went into the second bedroom, "I'm not sleeping with any of you".
3. In the morning, the applicant woke Aaron up and they caught an Uber to the applicant's place at Paddington. The applicant then drove Aaron to his place at Curl Curl so that he could pick up his vehicle to go to work. They did not speak about what had happened between the applicant and the complainant that night. On 21 October 2021, Aaron learned of the charges against the applicant. The applicant asked him if he would be prepared to talk to the applicant's lawyers but said that he did not have to. Aaron was cross-examined extensively by the Crown.

Expert evidence of Dr Michael Robertson

1. The defence called Dr Michael Robertson, expert toxicologist, to give evidence about the effects of alcohol and cocaine, based on assumptions put to him about consumption. In particular he was asked about the prospect of the complainant passing out for a short period due to the effects of alcohol in the following exchange: "Q. Is part of what you're saying that if the complainant did pass out or was unconscious due to the alcohol that you would expect that she would not have the memory of events afterwards, and she would not be able to have performed the actions that she performed afterwards, whether it's getting dressed, ordering the Uber, sending messages and so forth. A. Yeah, almost certainly if someone had that level of intoxication to have been unconscious, they would not have been able to do those things for a number of hours after that loss of consciousness. Q. Just to be clear, if the complainant did pass out or become unconscious due to alcohol, you would've expected that passing out or period of unconsciousness to have been longer than a period of say less than 10 minutes? A. Yes, absolutely. Q. Now, are you able to give any opinion as to whether or not the complainant just fell asleep, like in the ordinary sense of falling asleep? A. Well, I can't determine if she did or didn't, but she may have given the time of the evening and - and - and the fact that alcohol was in her system, that can cause tiredness, so it's certainly possible that someone would fall asleep. Q. If the evidence that you've considered in the course of formulating your opinion consistent at all with the complainant passing out or becoming unconscious due to alcohol? A. No, there's nothing in the provided materials that I have considered or seen that would be consistent with alcohol causing a loss of consciousness."
2. In cross-examination, Dr Robertson accepted that the expression "passed out due to the effects of alcohol" was consistent with falling asleep or becoming unconscious due to fatigue associated with drinking alcohol.

The summing up

1. No objection was taken to the summing up, including the directions given, either in the course of the trial or in this Court. The trial judge directed the jury as to the elements of each offence, namely that: 1. the applicant had sexual intercourse with the complainant; 2. without her consent; and 3. knowing that she did not consent.
2. The trial judge directed the jury as to proof of the third element in the following terms: "The law says that the Crown will have proved the accused knew the complainant did not consent to sexual intercourse if: (a) the accused knew the complainant did not consent; or (b) the accused was reckless as to whether the complainant consented because he realised there was a possibility that she did not consent; or (c) the accused was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead not caring or considering it was irrelevant whether she consented; or (d) the accused may have actually believed the complainant consented but had no reasonable grounds for that belief."
3. I understood it to be accepted that this direction was correct and that the Crown put its case on the third element of the offence (that the applicant knew that the complainant did not consent) on each of the available bases in s 61HE(3) of the Crimes Act which then relevantly provided: "(3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim … knows that the alleged victim does not consent to the sexual activity if - (a) the person knows that the alleged victim does not consent to the sexual activity, or (b) the person is reckless as to whether the alleged victim consents to the sexual activity, or (c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity."
4. The trial judge directed the jury that they were to ignore the self-intoxication of the applicant and determine his state of mind by considering what his state of mind would have been but for his intoxication. I understood it to be accepted that this direction complied with s 61HE(4)(b) of the Crimes Act.
5. The trial judge also gave a so-called Liberato direction (after Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66) in accordance with Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [11]-[12] (Kiefel CJ, Bell, Gageler and Gordon JJ) as follows: "But in the trial before you, he chose to give evidence, and the accused relies upon his evidence. It is important that you understand the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt you may have at the end of your deliberations. The following conclusions follow from that: first, if you believe the accused's evidence, then you must acquit him; second, if you find difficulty in accepting the accused's evidence but think it might be true, then you must acquit him; third, if you do not believe the accused's evidence, then you must put it to one side and the question will then remain: has the Crown upon the basis of evidence that you do accept prove the accused's guilt beyond reasonable doubt. Just to restate that last point: if you do not accept his evidence, that does not mean that you automatically conclude that he is guilty; you then go back to square one and look at the evidence in the trial and see whether the Crown has proved his guilt - that is, the essential elements - beyond reasonable doubt."

The relevant principles

1. The relevant principles relating to an unreasonable verdict ground were stated in M v The Queen. 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" (Mason CJ, Deane, Dawson and Toohey JJ at 493). This question "is one of fact which the court must decide by making its own independent assessment of the evidence" (at 492). Although "[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced", the court may conclude that no miscarriage of justice has occurred if "a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by [the appellate court]" (at 494). Further, at 494, the plurality said: "[w]here the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. 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."
2. The credibility of a complainant may, as here, be significant in a criminal trial. A verdict of guilty may be reasonable even if the complainant's evidence is not corroborated: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [53] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The primary function of determining guilt or innocence has been entrusted to the jury as the tribunal of fact (The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ)). For this reason, it will not generally be appropriate for this Court to review pre-recorded or recorded evidence to form its own view of the credibility of particular witnesses on the basis of their presentation: Pell at [36]-[38]. This Court must proceed on the basis that the complainant's evidence was accepted by the jury as credible and reliable: Pell at [39].
3. The extent to which this Court is entitled to disbelieve a witness (such as the complainant in the present case) whose evidence a jury must have accepted, at least in so far as it established the elements of the offence or offences of which he or she has been convicted, is constrained. In Z (a pseudonym) v R [2022] NSWCCA 8, this Court (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing) said at [29]: "… it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant's credibility has been so damaged that it was not open to the jury to accept his or her evidence."

The applicant's submissions

1. Mr Game SC, who appeared with Ms Cook SC for the applicant, submitted that the applicant's evidence was consistent, cogent and believable and that there was nothing inherently implausible or "problematic" about it. They also relied on the following aspects of the complainant's evidence: "a. The complainant and applicant, by choice, got into bed together. b. Before getting into bed, and despite having only met that night, they had (at a minimum) been particularly friendly with one another. c. When the complainant got into bed with the applicant, she was dressed in only a top (no bra) and white lace underwear. d. There was mutual kissing (whilst in the state of semi-undress described above) soon after the two were in the bed together. e. The complainant moved the applicant's hand(s) from her genital area and placed them on her breast(s). f. The complainant told police that she thought that the applicant thought that she was enjoying herself (oral intercourse) and that he said things like 'I just want to do it for you' and 'You're so hot, I can't resist'. g. That the applicant could not get 'hard' (an erection). h. The attempted penile/ vaginal intercourse (and the assault) stopped when the complainant said 'If you can't get hard, can we please at least just stop?'. i. The complainant said that afterwards the applicant was trying to kiss and grab her and that he offered to walk her out to the Uber. j. The complainant told friends that the applicant looked 'dismayed', 'shocked' and like 'he didn't fully comprehend what was going on' when she left the apartment and that he acted like what occurred had been a 'mutual decision'. k. A police COPS event document records that the complainant 'voiced concerns of (a) not wanting to get [the applicant] in that much trouble and (b) worried that she may not have been clear enough regarding no consent'."
2. Mr Game also relied on the evidence of Dr Robertson that being unconscious from the effects of alcohol was inconsistent with the complainant's evidence.
3. Mr Game submitted that it was significant that the complainant had omitted from her evidence of complaint that she and the applicant had been kissing when they were both in bed in the spare room.

Whether the ground has been made out

1. Before turning to the ground more generally, I propose to address each of the matters raised by Mr Game set out in the extract above.

a. The complainant and the applicant being in the same bed together

1. The complainant entered the bedroom with the intention of spending the night there because she had previously been invited by Cassandra to do so. That the applicant also entered the bedroom with a view to sleeping there was something which, as far as the complainant was aware, arose spontaneously after Cassandra had announced her intention of going to bed. The complainant's intention, when entering the bedroom, was to sleep. On the case for the Crown and the applicant, the complainant announced that she did not want to have sex with anyone. It was open to the jury to infer that the applicant's intention when he entered the bedroom was to have sex with the complainant. The complainant initially lay, fully clothed on one side of the bed. She removed her trousers and got under the covers only when the applicant assured her that they would just be sleeping. The jury was in a position to appreciate the context in which the applicant and the complainant came to be in the same bed.

b. Apparent friendliness between the complainant and the applicant

1. Mr Game relied on what he contended to be the "friendliness" between the complainant and the applicant as depicted on the CCTV footage taken at the various venues. The "friendliness" between the complainant and the applicant, to the extent exhibited on the CCTV footage, was a matter for the jury to assess. But even assuming it to have been the case, the jury was entitled to regard any enjoyment which the complainant demonstrated at being in the applicant's company (which may have been the result of politeness or a wish to make sure that Cassandra was enjoying the evening) as a far cry from consent to sexual intercourse. Thus, there was no necessary inconsistency between the complainant's friendliness towards the applicant in a social setting and her objection to sexual intercourse with him.
2. Mr Game also relied on the applicant's evidence that he and the complainant had been kissing passionately on the couch in Cassandra's living room before they went to the second bedroom. This evidence was uncorroborated. Neither the complainant nor Cassandra had a memory of this. Aaron's evidence was that he recalled the applicant kissing a woman on the couch (who could have been Cassandra). The significance of the applicant's evidence would, in any event, appear to be relatively slight as it occurred prior to the complainant's announcement that she did not want to have sex with anyone and also prior to the applicant kissing her when they were in the second bedroom, which she accepted had occurred.

c. The complainant's clothing

1. The circumstance that the complainant was not wearing a bra was the consequence of a decision the complainant had made before leaving home to meet Cassandra and Jameely at 5pm for a drink, well prior to meeting the applicant at the East Village pub. Further, it was open to the jury to accept the complainant's evidence (extracted above) that, at the outset, she was lying fully clothed on top of the bed in the second bedroom when the applicant told her that she could get into bed because they were "just going to go to sleep". Thus, it was open to the jury to regard the complainant's removal of her trousers as being the result of the applicant's (disingenuous) assurance that they were just going to sleep. It was also open to the jury to infer that at least a reason why the complainant kept her top on was because she was conscious of the fact that she was not wearing a bra, she did not want to have sexual intercourse and wanted neither to indicate to the applicant that she wanted sexual intercourse nor to arouse his sexual interest.
2. These matters are relevant not only to the second element of the offence (whether the Crown had proved that the complainant did not consent) but also to the third element (the applicant's state of mind about whether the complainant was consenting). It was open to the jury to find that the applicant knew, as a result of what is set out above, that the complainant had only removed her trousers and got under the covers because he had assured her that they were just going to sleep (and not because she wanted to have sexual intercourse with him).

d. The relevance of kissing

1. It was open to the jury to consider that the complainant was prepared to allow the applicant to kiss her because it did not constitute a particular violation but that this did not mean that she consented to sexual intercourse, particularly in light of her protestations (by saying, "stop" and "no" and trying to move his hand and his head) to the acts which comprised sexual intercourse. Further, the complainant's evidence about whether the kissing was "mutual" was somewhat ambivalent. She said, "And then pretty straight away, like, pulled me over to him and started kissing me, which I wasn't, like, super interested in but didn't really mind …"; and, "Yeah, I wasn't super [interested] (not transcribable) … I guess it was mutual" (emphasis added).

e. The complainant's act of moving the applicant's hand from her genital area to her breasts

1. It was open to the jury to consider that the complainant's endeavour to remove the applicant's hand from her genital area and place it on her breasts was an attempt to stop the sexual intercourse in circumstances where the applicant was larger and stronger than she was; she was in a position of substantial vulnerability and was subject to his control; and, as she explained in her evidence, all of her other attempts to get him to stop (comprising both verbal and physical resistance) had been ineffective. The jury was entitled to consider this act to be a product of the complainant's vulnerability rather than as amounting to any consensual engagement in what was occurring. Indeed, the jury may have understood the complainant's act of moving his hand as constituting the lesser of two evils: sexual touching of her breast being a lesser violation than digital penetration of her vagina.

f. The complainant's evidence of her impression that the applicant thought she was enjoying herself

1. Mr Game submitted that, on the basis of the complainant's evidence, there was, at the very least, a "massive misapprehension" on the part of the applicant as to "what was going on". Mr Game relied on the complainant's evidence that her impression was that the applicant thought that she was enjoying herself.
2. When addressing this argument, it is important to recall that the jury was entitled to find that the third element of the offence had been made out if the jury considered that the applicant believed that the complainant was consenting to sexual intercourse but that the Crown had proved beyond reasonable doubt that he had no reasonable grounds for that belief. In this context, the complainant's speculation that the applicant seemed to think that she was enjoying oral intercourse and that he was doing her a favour by performing oral intercourse on her (notwithstanding her telling him to stop and trying to move his head away from between her thighs) and his focus on himself (saying, "you're so hot, I can't resist") is not inconsistent with the Crown case. Rather, it was open to the jury to consider that the applicant's appreciation of what was happening was entirely divorced from reality and paid no regard to the complainant's objections. Further, the jury was also entitled to consider that, although the applicant did not know that the complainant was not consenting, he would have known but for his self-induced intoxication.
3. The Crown case, which it was open to the jury to accept, was that the complainant did what she could to communicate her lack of consent to the applicant by words and acts which included the following: 1. her announcement before entering the bedroom that she did not want to have sex with anyone and just wanted to sleep; 2. her positioning herself, fully clothed, on the side of the bed; 3. her only being prepared to remove her trousers after the applicant assured her that they were only going to sleep; 4. her telling the applicant to stop when he put his finger in her genital area and inside her vagina and her attempts to move his finger away from that area, eventually by placing his hand or hands on her breasts; 5. the complainant telling the applicant to stop and trying move away from the applicant's mouth when he was engaging in oral intercourse, as well as trying to move his head with her hands; 6. the complainant complaining of pain when he engaged in acts of intercourse with her; and 7. the complainant requesting the applicant to stop attempting penile-vaginal intercourse when, notwithstanding his attempts to obtain an erection, his penis remained flaccid.
4. As the Crown submitted, the applicant is not the first sexual offender to impose his will on a victim, believing that he can overcome a victim's resistance by persistence. Further, his desire for sexual gratification would appear to have been so much at the forefront of whatever drove him that the jury was entitled to find that he was both deaf and blind to the complainant's objections, remonstrances and pleas and even may have believed, contrary to the fact and contrary to any reasonable view of the circumstances, that she was actually enjoying the sexual intercourse. But this does not gainsay the reasonableness of the verdicts of guilty, in circumstances where knowledge for the purposes of the third element could be established by proof that he had no reasonable grounds for believing that the complainant consented to the sexual intercourse and the effects of his self-induced intoxication were to be disregarded.

g. and h. The applicant's inability to obtain a full erection and the complainant's suggestion that they stop

1. It is difficult to see how the applicant's inability to obtain an erection could assist this ground. By the time the applicant attempted penile vaginal intercourse with the complainant, he had already performed digital and oral sexual intercourse with her. It was open to the jury to consider that the complainant's request that if he could not get "hard", they could "please at least just stop" reflected her vulnerability and lack of power in the circumstances. It was also open to the jury to consider that the complainant was trying various ways of communicating her lack of consent to the applicant which would not provoke him to further acts and which would incline him to let her go (she was, at this point, trapped beneath him). As set out above, the complainant explained in her evidence that she had said this because she had already told him "no" and asked him to stop and he had not listened to her.
2. Mr Game submitted that it was potentially implicit in the complainant's request that they stop since he could not get hard that, if he had been able to obtain an erection, she would have wanted to have penile-vaginal intercourse with him. This does not follow. Her request must be seen in the context of all the other evidence, including her requests that he stop and her complaint that he was hurting her (which was supported by the finding of bruising on examination). I reject Mr Game's submission.

i. The applicant's attempt to kiss the complainant and his offer to take her out to the Uber

1. It was open to the jury to find that this evidence was not inconsistent with her lack of consent or his knowledge of it. Indeed, the jury may have considered that it showed that he appreciated that he had done the wrong thing and was trying to make it better. The evidence is also consistent with his having an irrational belief (that is, a belief not based on reasonable grounds) that she had consented; his being reckless as to whether she consented because he realised there was a possibility that she did not consent; or his not even thinking about whether she consented but going ahead anyway, not caring or considering her consent to be irrelevant.

j. The complainant's evidence about the applicant's apparent lack of comprehension

1. It can be accepted that the perpetrators of crimes of sexual assault, particularly in social settings such as in the present case, may have little appreciation of the effects of non-consensual sexual intercourse on their victims and may fail to understand conduct, such as the complainant's act of calling an Uber and not wanting him to walk out with her. The complainant's view of the applicant's reaction may have been correct ("that he didn't fully comprehend what was going on"). However, the jury was entitled to find that it did not follow from that reaction that the Crown had not proved the elements (and in particular the third element) beyond reasonable doubt.

k. The complainant's concern, expressed to police, that she may not have been clear enough regarding consent

1. It was plain from the text of the COPS report that the complainant made the statement attributed to her in that report after she had made her first signed statement to police reporting what had occurred. It can be inferred from the absence of cross-examination of the complainant about her first signed statement to police that her evidence in chief was consistent with what she had put in that statement.
2. It was for the jury and not the complainant to determine whether what she had done to indicate her lack of consent was sufficient to establish that the applicant knew that she did not consent. It is not uncommon for victims to blame themselves, particularly when they are victims of sexual offences in a society where "rape myths" that the victim must have done something to "ask for it" have not been completely eradicated. Further, the complainant's expressed concern could also be understood as applying to her future conduct, so that she could work out a way of protecting herself from sexual assaults in the future.
3. In addition, the complainant's principal concern when reporting the matter to police appears to have been that the applicant not do the same thing to anyone else. Thus, she wanted him to know that it was "not okay". She did not envisage, when she reported the matter to police, that it would end up in a trial and that, if convicted, he would have to serve a term of imprisonment. The attitude of the victim to the court's processes is, generally, irrelevant. In cases of sexual assault, the impression can be given that the victim is the driver because, as here, she was the only witness to the offences and therefore there would have been no prosecution case without her. However, the interest which is protected by the criminal law is largely the public interest, although the vindication of the rights of victims and the recognition of the harm done to them is also of significance.
4. I do not regard any of the matters which Mr Game has raised in the list extracted above, taken individually or in combination, to cast doubt on the reasonableness of the verdict.

The pre-arranged sleeping arrangements

1. The jury was obliged to come to their verdicts on the basis of all of the evidence at the trial (which I have endeavoured to summarise above). That evidence included that Cassandra had, earlier in the evening, invited the complainant to stay the night at her place because her flat-mate was away. It was open to the jury to infer that the complainant remained with Cassandra rather than going home earlier because she knew that she could stay at Cassandra's place in her own bedroom. Further, the jury might also have concluded that once the group had arrived at Cassandra's place, the complainant was waiting for the males to leave so that she could go to bed. It was open to the jury to regard her Instagram post to her friends in which she said that she only knew one person there as evidence of her at least partial disengagement from the scene.

The complainant's attempt to draw boundaries as to what was permitted

1. Further, the complainant's announcement, which was audible to Aaron and the applicant, that she did not want to sleep with anyone could have been regarded by the jury as an attempt on her part to delineate boundaries before she entered the bedroom, with an intention of going to sleep. The jury might have considered her announcement to be a protective measure which she took because she did not want her entry into the bedroom to be misconstrued by the two males (who may not have been privy to the fact that the complainant was staying overnight in the second bedroom by prior invitation from Cassandra). Indeed, she said as much when she gave the evidence set out above about the "thoughts running through [her] head" that if she "went into the bedroom there would be kind of things that [she] didn't want to do."
2. That the complainant was prepared to remove her trousers (in preparation for sleep, the applicant having assured her that he understood her position about not wanting to have sex) and allow the applicant to kiss her was not inconsistent with her prior announcement of what she did not want to do. As referred to above, it was also consistent with the complainant having been lured into a false sense of security by the applicant, who told her that they were just going to sleep.
3. However, importantly, it was open to the jury to reason that whatever ambiguity there may have been in the complainant's conduct (viewed from the applicant's point of view), there was no ambiguity in what she said and did, which was consistent throughout: she did not want to have sexual intercourse that night. She repeatedly told him to stop when he initiated sexual intercourse of three types and throughout. This is not a case where a complainant has initially consented to, say, penile vaginal intercourse, but does not consent to a different type of intercourse (typically anal intercourse). It was open to the jury to accept the complainant's evidence that she did not at any time consent to sexual intercourse of any variety and steadfastly and consistently expressed her opposition to it by words and conduct throughout.
4. The jury must, by its verdicts, be taken to have accepted the complainant's evidence (to the requisite standard) that she communicated to the applicant that she did not consent to sexual intercourse (by digital penetration, cunnilingus or attempted penile-vaginal intercourse) in several ways: by her announcement that she did not want it, by saying "no" and "stop" when the applicant put his finger in her vagina and by trying, unsuccessfully, to move his hand and, subsequently, his head away from her genital area and by asking him to stop trying to have penile-vaginal sex with her. The jury must also, by its verdicts, be taken to have rejected as not possibly true that part of the applicant's evidence which was inconsistent with the complainant's evidence about what occurred and that she did not consent.
5. The jury may also have regarded it as significant that the applicant gave evidence that the complainant gave him oral sex for several minutes during which he was unable to become erect and she then asked for penile-vaginal sexual intercourse. The jury can be taken to have rejected his evidence as being not possibly true. Indeed, the jury may have regarded this evidence as amounting to a deliberate lie, having regard to the complainant's evidence (which the jury accepted) about what occurred.

The complainant's evidence that she passed out from alcohol

1. Mr Game submitted that the complainant's evidence that she "passed out" from alcohol could not be accepted in light of Dr Robertson's evidence that her capacity to recall detail of the events of the evening was inconsistent with her having passed out due to alcohol. He submitted that this Court ought consider her evidence to be unreliable because of this inconsistency. I reject this submission. It was open to the jury to appreciate that the complainant's view that she had passed out due to alcohol was not the opinion of an expert toxicologist but rather a lay person's understanding that she had lost consciousness at a particular point and then regained it. As referred to above, Dr Robertson accepted that it was possible that the complainant had simply fallen asleep at about 3am from the combined effects of fatigue, the drug she had taken and the alcohol that she had drunk (which would also have been capable of making her tired) and that she had woken up again while the applicant was performing oral intercourse on her. It was open to the jury to regard the complainant's evidence to that effect as credible and reliable. Her evidence that he may have thought she was consenting while she was unconscious (and was therefore not resisting) tended to support her credibility.

Alleged inconsistencies in the complaint evidence

1. Mr Game also alleged that inconsistencies in the complaint evidence ought to have caused the jury to have a reasonable doubt as to the complainant's evidence. The ill-founded premise of Mr Game's submission was that a complaint to a colleague, a friend or a parent ought be treated as if it is a comprehensive report as to what has happened as if it is a police statement or evidence in chief. The jury was entitled to have regard to the context and purpose of each communication as well as the timing of the complaint itself and when the recipient of the complaint was first asked to recall its contents when adjudging its consistency with the complainant's evidence at the trial. The purposes of the complaints included: 1. to obtain solace or advice (to Bella and Georgie); 2. to communicate why she could not come to work that day (to Jameely and Cassandra); 3. to convey important information to someone to whom she was very close (to the complainant's mother); or 4. to make sure that the applicant knew that what he had done was "not okay" (to the police).
2. I have set out the evidence of complaint in some detail above. It demonstrates overall consistency but some variation. For example, the complainant told Georgie that the applicant had kissed her in bed but did not tell others of this detail. It was open to the jury to consider that the omission of this detail was insignificant and did not bear on her credibility. It was also open to the jury to accept the complainant's evidence that she did not particularly mind the applicant kissing her although she was not "super-interested" and that it was not necessarily worthy of report, whereas the conduct which comprised the three counts was a significant violation, which the complainant wanted to report to those who were important to her.
3. The complainant initially refrained from telling Cassandra what had happened because she was concerned not to spoil Cassandra's birthday celebration or her last day at work but subsequently told her what had occurred.
4. Mr Game particularly relied on the complainant's complaint to her mother in which her mother recalled her daughter saying that she fell asleep and one of the two men who said that they would sleep on the lounge came into the bedroom where she was sleeping, woke her up and sexually assaulted her. The complainant's mother's recollection must be seen in the context that the complainant's mother was first asked by police on 7 October 2021 to recall what her daughter told her on 11 February 2021 in a 15-minute conversation during which the complainant's mother had not taken notes. In these circumstances, the jury was entitled to conclude that the complainant's mother's recollection of the conversation was, at best, incomplete and that the complainant's report to police on 12 February 2021 was likely to be considerably more accurate. Further, the jury was entitled to regard it as unremarkable that the complainant's recollection of what she told people about what had happened was relatively sketchy compared with her recollection of the events themselves.
5. Jameely's evidence of her impression that the complainant was "pressured" into going into the second bedroom was also relied upon by Mr Game as constituting an inconsistent statement by the complainant. Jameely clarified her evidence that she understood the complainant had been "pressured" by saying that the complainant had not been physically forced into the bedroom and that the man had "fed [her] narcotics". The complainant's evidence was, as set out above, that she had agreed to take cocaine. Jameely was first asked to recall the complaint when she was first interviewed by police in July 2021, which led to a statement dated 13 October 2021. Jameely's "interest" in receiving the information was that, as her manager, she was authorised to give the complainant permission not to come into work that day. Further, Jameely was also concerned to urge the complainant to report the matter to the police. Once Jameely understood that the complainant had been sexually assaulted, it could be inferred that she did not concern herself with the details, or with recalling the precise terms of the complaint, since she regarded the matter as one for the police because, as the complainant recalled Jameely saying, "it was a crime".
6. Any differences between the versions of the complaints made by the complainant (other than those comprised by text messages) can be explained by differing recollections of the complainant and those she told, as well as the possibility that she told slightly different things to different people. The question of what to make of differences in complaint evidence was pre-eminently one for the jury as the tribunal of fact, which enjoyed the advantage of seeing and hearing the witnesses give evidence. It was open to the jury to regard the evidence of complaint, including in text messages sent from the Uber when the complainant was on her way home, as significantly corroborating her evidence of what occurred. Further, it is also significant that the complainant gave a detailed statement to the police less than two days after the incident.

The alleged plausibility of the applicant's evidence

1. I reject Mr Game's submission that the verdict was unreasonable because there was nothing "inherently implausible" or "problematic" about the applicant's evidence. These adjectives are not helpful. The resolution of the issues whether the complainant consented to sexual intercourse and, if not, the applicant's mental state as to her consent did not depend on inherent plausibility or otherwise. Their resolution depends on the whole of the evidence to which the jury was obliged to have regard. The jury has indicated by their verdicts that they accepted the complainant's evidence as to the contested elements of the offences and rejected the applicant's evidence as to these matters (and were therefore entitled to put it aside, in accordance with the Liberato direction). Whether or not the applicant's evidence may have been "inherently plausible" or not "problematic" when read in isolation, the jury was entitled to reject the applicant's evidence as not possibly true, when viewed in the context of the evidence as a whole. Further, for the reasons given above, I consider that it was open to the jury to find that his evidence of the complainant fellating him and moaning with pleasure when he had sexual intercourse with her was false. There were also inconsistencies in his evidence. He initially denied knowing that the complainant had had a small amount of cocaine in the Lord Roberts Hotel or that he and the complainant had discussed cocaine at that hotel. Subsequently, he accepted that he offered the complainant cocaine twice - in the Lord Roberts Hotel - and at Cassandra's apartment and that she had, on both occasions, accepted.
2. If the jury rejected the applicant's evidence, then, in accordance with the Liberato direction, they were entitled to put the applicant's evidence to one side and consider the complainant's evidence, together with all of the other evidence, when determining whether the Crown had proved its case on each of the three counts beyond reasonable doubt.

The complainant's evidence that she had brought a bottle of rosé from home

1. Mr Game submitted that the complainant's evidence that she had brought a bottle of wine with her to Cassandra's place was "demonstrably untrue" and contended that this false evidence undermined the complainant's credibility in a significant way. He accepted that it had not been put to the complainant that her evidence was false.
2. The principal difficulty with this submission is that it was not put to the complainant. Accordingly, she was denied the opportunity of answering it. However, as the Crown submitted, the CCTV footage from East Village showed a large shopping bag, which was sufficiently capacious to accommodate a bottle of wine, to which the complainant had access from time to time. In these circumstances, it was open to the jury to accept the complainant's evidence that she brought a bottle of rosé to Cassandra's unit and that she did not mention it to police because she did not consider it to be important.

The applicant's evidence of good character

1. Mr Game submitted that the character evidence adduced on behalf of the applicant was such as to support the hypothesis consistent with innocence that the applicant was under a "massive misapprehension" as to what was happening. For the reasons given above, the Crown case could accommodate the applicant being under a "massive misapprehension" if the jury could reasonably be satisfied that he had no reasonable grounds for believing that the complainant consented or if the jury considered that, but for his self-induced intoxication, he would not have been under any misapprehension about her lack of consent.
2. However, in any event, the character evidence was not such as to support the argument put by Mr Game. While Mr Treloar was impressed with the applicant, he did not indicate in his evidence that he was aware that the applicant was a user of cocaine. Nor had he ever seen the applicant under the influence of drugs or alcohol. Aaron's evidence was generally unimpressive. Mr Lucic's evidence that the applicant became "probably more caring" when under the influence of alcohol and cocaine must be seen in the context that it was unlikely that Mr Lucic had seen the applicant in a private sexual encounter while under the influence.
3. The weight to be given to character evidence was a matter for the jury. It is evident from the jury's verdicts that they appreciated that otherwise good men (who make good friends and reliable employees, who are "caring" to their friends when intoxicated, who offer to walk a woman to an Uber in the early hours of the morning and who drive a friend from Paddington to Curl Curl so that he can pick up his vehicle to go to work, as occurred with Aaron after the alleged offending conduct) commit sexual crimes, as this Court is only too aware.

Conclusion

1. Each of the matters raised by Mr Game on appeal, with the exception of the complainant's evidence that she had brought a bottle of rosé to Cassandra's unit (which was raised for the first time on appeal), was raised in closing address by Ms Cook who appeared on behalf of the applicant at trial. The jury can be taken to have considered those submissions and rejected them on the basis of their appreciation of the whole of the evidence.
2. None of the arguments advanced on behalf of the applicant by Mr Game causes me to doubt his guilt of any of the counts. It was open to the jury to return verdicts of guilty in respect of the three counts charged. Having reviewed all of the evidence in the trial, I am not persuaded that any of the verdicts are unreasonable.
3. As I have given detailed consideration to the ground of appeal, I propose that leave to appeal be granted but that the appeal be dismissed.

Proposed orders

1. For the reasons given above, I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
2. BUTTON J: I agree with Adamson JA.
3. Further to her Honour's analysis, I regard the observed injury to the genitals of the complainant as a significant inculpatory factor, in the context of the other evidence in the trial.
4. On my own assessment of all of the evidence, the verdicts of guilty were well open to the jury.
5. R A HULME AJ: I have read the judgment of Adamson JA in draft and have also had the advantage of reviewing the record of trial for myself. I am in complete agreement with her Honour's analysis and conclusions. I agree with the orders proposed.

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