Sakar v R - [2024] NSWCCA 40 - NSWCCA 2023 case summary — Zoe

NSWNSWCCA

Sakar v R

[2024] NSWCCA 40

Court of Criminal Appeal (NSW)|2023-12-01|Before: Button J, Weinstein J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-12-01

Before

Button J, Weinstein J

Catchwords

[1998] HCA 68 Gipp v The Queen (1998) 194 CLR 106
[1998] HCA 21 Lee v R [2023] NSWCA 203 Longman v The Queen (1989) 168 CLR 79
[1989] HCA 60 M v The Queen (1994) 181 CLR 487
[1994] HCA 63 MFA v The Queen (2002) 213 CLR 606

Source

Original judgment source is linked above.

Catchwords

[1998] HCA 68 Gipp v The Queen (1998) 194 CLR 106[1998] HCA 21 Lee v R [2023] NSWCA 203 Longman v The Queen (1989) 168 CLR 79[1989] HCA 60 M v The Queen (1994) 181 CLR 487[1994] HCA 63 MFA v The Queen (2002) 213 CLR 606[2002] HCA 53 Pell v The Queen (2020) 268 CLR 123[2020] HCA 12 R v Knight (1988) 35 A Crim R 314 R v Markuleski (2001) 52 NSWLR 82[2001] NSWCCA 290 R v TK (2009) 74 NSWLR 299[2009] NSWCCA 151 SKA v The Queen (2011) 243 CLR 400[2011] HCA 13 The Queen v Baden-Clay (2016) 258 CLR 308

Judgment (21 paragraphs)

[1]

Solicitors: CFS Legal (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2021/176642 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 10 March 2023 Before: Townsden DCJ File Number(s): 2021/176642

[2]

JUDGMENT

SIMPSON AJA: On 9 November 2022 the applicant was arraigned in the District Court on an indictment that contained four counts of offences against provisions of the Crimes Act 1900 (NSW). Count 1 was of an offence against s 61, common assault; counts 3 and 4 were of offences against s 61I, of sexual intercourse without consent. Count 2 was of an offence against s 37(1) which relevantly provides: "A person is guilty of an offence if the person (a) intentionally chokes … another person so as to render the other person … incapable of resistance and (b) is reckless as to rendering the other person… incapable of resistance." This count has been referred to as "the choking charge".
The applicant entered a plea of not guilty to each count and a jury trial proceeded. On 21 November 2022 the jury returned verdicts of guilty to count 1 (common assault) and count 3 (the first count of sexual intercourse without consent) and verdicts of not guilty on counts 2 (the choking charge) and 4 (the second count of sexual intercourse without consent).
The applicant now seeks leave to appeal against the convictions. He requires leave because no ground of appeal raises a question of law alone: Criminal Appeal Act 1912 (NSW), s 5(1)(a). The gravity of one of the offences of which he was convicted is sufficient, in my opinion, to warrant a grant of leave. I will henceforth refer to the applicant as the appellant.
The appellant proposes two grounds of appeal. Ground 1 is that the verdicts of guilty are unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty returned in respect of counts 2 and 4. By ground 2 the appellant complains of a direction given to the jury by the trial judge. As no complaint was made of the direction at trial, leave is required to raise this ground: Supreme Court (Criminal Appeal) Rules r 4.15. The appellant accepts that this ground cannot succeed in this Court and is protective only. That is because a ground complaining of a direction in relatively identical terms was rejected in Lee v R [2023] NSWCCA 203. The only issue for present determination, therefore, is whether the convictions are unreasonable and cannot be supported having regard to the evidence. Determination of that issue requires that this Court make its own independent assessment of the evidence, while bearing in mind the advantage had by the jury in seeing and hearing the witnesses give their evidence.

[3]

Relevant statutory provisions

It is necessary to say something about the nature of the offences of which the appellant was convicted. The first, common assault, is an offence against s 61 of the Crimes Act which provides as follows: "Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years."
An assault is an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence: R v Knight (1988) 35 A Crim R 314. An act which would otherwise constitute an assault will not do so if the Crown fails to prove, beyond reasonable doubt, that the act was done without lawful excuse.
The second offence, the offence of sexual intercourse without consent, is an offence against s 61I of the Crimes Act which provides: "Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years."
It is therefore necessary that the Crown establish, beyond reasonable doubt, that: 1. the accused person has sexual intercourse with the complainant; 2. the sexual intercourse was without the consent of the complainant; and 3. the accused person knew that the complainant did not consent to the sexual intercourse.
At the time of the events in question in this case, s 61I was located in Div 10 of Pt 3 of the Crimes Act. "Sexual intercourse" was defined in s 61HA, relevantly, to mean: "(a) sexual connection occasioned by the penetration to any extent of the genitalia … of a female person or the anus of any person by - (i) any part of the body of another person … except where the penetration is carried out for proper medical purposes …"
Section 61HE, located in Subdiv 1 of Div 10, explained the concept of consent in sexual offences. Relevant for present purposes, subss (2), (3) and (4) of s 61HE provided: "(2) Meaning of 'consent' A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity. (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) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but (b) not including any self-induced intoxication of the person."
Much of Subdiv 1 (including s 61HE) has been repealed and replaced: Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW). The relevant provisions for present purposes are those that pre-dated the repeal and replacement.
It is now necessary to set out, in some detail, the evidence in the trial.

[6]

The complainant's evidence in chief

The complainant's evidence was that, on the evening of 7 September 2019, (a Saturday) she was at home alone. She consumed a whole bottle of wine before travelling by public transport to Darling Harbour, arriving between 10.30 and 11 pm. She purchased a frappe from a McDonalds outlet and sat on a step. The appellant sat down beside her and they struck up a conversation before going together to a nearby casino where they consumed several alcoholic drinks. While at the casino the complainant asked for the appellant's phone number which he gave her and which she entered into her phone. After the first drink the appellant and the complainant moved to an outside area of the casino, where the appellant began to kiss the complainant in what she described as a "really aggressive way", about which she complained.
After some more drinks, the complainant decided to go home. The appellant volunteered to drive her. In the car the complainant kissed the appellant; he initiated some sexual activity, which the complainant resisted because they were in public. The complainant said that she was then "very drunk".
When they arrived at the complainant's address, the appellant wanted to use the bathroom. The complainant was reluctant to allow him to come in, because, she said, the house was "too messy". Nevertheless, at the appellant's insistence, she allowed him in, telling him to be quick and then leave. The appellant used the bathroom, and the complainant lay on her bed, fully clothed. The appellant joined her and suggested that they cuddle, to which the complainant agreed.
The appellant then suggested sexual intercourse. The complainant asked if he had a condom, because she was concerned about possible pregnancy. He said he did not, but that he could avoid impregnating her. The complainant declined penile-vaginal sexual intercourse, but suggested oral sex. She said she did this so that the appellant would go home. The complainant began to fellate the appellant and something of a confrontation occurred. The complainant again described the appellant's conduct as "pretty aggressive". (In cross-examination the complainant agreed that she had asked the appellant to teach her "how to give oral sex", and that she had, in fact, performed oral sex on him while he lay on the bed.)
According to the complainant, the appellant persisted in asking for penilevaginal sex, which the complainant refused. At some point (the complainant could not remember when) her clothes "came off". The complainant said that she became very emotional and had a panic attack. No detail was given in evidence of the nature or the manifestation of the panic attack other than that the complainant was very emotional and was "very loud and crying a lot", and telling the appellant to go home. At this time the complainant was lying on the bed, the appellant on top of her. The appellant slapped the complainant across the face and told her to calm down. The panic attack came to an end and the appellant continued to ask for sex, which the complainant continued to refuse. The appellant slapped the complainant across the face, "pretty hard", more than 10 times. Slapping the complainant during the panic attack was the foundation for count 1 on the indictment, common assault, of which the appellant was convicted. No separate charge was brought with respect to the subsequent, repeated, slapping of which the complainant gave evidence.
According to the complainant, during the course of these events the appellant put his hand around her throat and squeezed. The complainant was very afraid because the appellant was strong and she feared for her life. The appellant did this "on and off for a few minutes at a time". This gave rise to count 2 on the indictment, (the choking charge), of which the appellant was acquitted. The complainant continued to refuse to engage in penile-vaginal intercourse with the appellant. The complainant's account of what happened then is recorded in the transcript as follows: "So after that the - yeah, he so eventually he, because I kept saying 'No,' he said that he was just going to rub his penis against my vagina and so he took his penis out and did that and I started to really freak out because it - I felt like, you know, he wasn't going to stop so I needed to get away so that I don't have sex with him and become pregnant and not have, you know, just didn't want to do it so he does that and then he like at that time we're still in the same position where I'm underneath him and he's on top and I think because I was kind of wriggling too much he needed me to be in a different position so that he could actually insert his penis into my vagina so at that time he put like, he put me across the bed in like diagonal position where my like left leg was over my other leg and so I was on like a diagonal kind of angle and then he was holding my wrists and he held them down and I remember trying to push up from that and I kept, I remember I just kept saying 'No' the whole time and so he eventually inserted his penis into my vagina in that position." This gave rise to count 3 on the indictment, the first count of sexual intercourse without consent, of which the appellant was convicted.
The complainant said that she then said "anything else", and the appellant responded by saying "anal". The complainant said that she made no reply to that: "Because I was scared and I was just processing what he had said and he didn't really give me any time and I didn't want to do it but I was kind of scared at that point because he kept slapping me so I was worried that he would just kill me if I said things, if I said too many more things against him."
The complainant's account of what next happened was: "He flipped me up so he took his penis out of my vagina and he flipped me up and he like slammed me against the bed rail which hurt and he then inserted his penis into my anus." The complainant said this was very painful. This gave rise to count 4 on the indictment, the second count of sexual intercourse without consent, of which the appellant was acquitted.
The complainant said that eventually the appellant withdrew his penis from her anus and said that he wanted to cuddle again. She said that she did so but was "really uncomfortable". She wanted to put her clothes on but the appellant told her that he liked feeling her skin. She put her clothes on; the appellant removed them; she put her clothes back on.
The complainant said that she felt "really grossed out", was still drunk and very tired. It was about 4.00 am. She noticed that her phone was missing and asked the appellant to look for it, initially in the apartment with her, and then in his car, which he did. He retrieved the phone from his car and gave it to the complainant. The complainant told the appellant that she needed to work the next (ie later that) day and the appellant needed to leave, which he eventually did.

[7]

The complainant's communications with others

The complainant then sent text messages to some friends. As the text messages are an important part of the appellant's argument that the verdicts of guilty were unreasonable, the content of much of the messaging can be set out here. I will avoid identifying the recipients. I will reproduce the messages as they appear in printouts in the evidence.
At 4.15 am the complainant texted her friend (her former partner, to whom I will refer only as "IE"), saying: "Ok yep I'm gay men suck nope just had the WORST sexual experience of my life. ewpenis ewwwe Hundred percent I think I'm like legit gay."
At 4.16 am the complainant texted a (male) friend, AW, saying: "Dude holey fuck I've got s story for you Also I think Ive just figured out my sexuality Men are not on the team no more I just EW."
At 8.11 am IE replied to the 4.15 am message from the complainant, asking what happened, to which the complainant replied (at 8.22 am): "I sent this super drunk so I don't think I realised the severity of what it was". The complainant then asked if IE was free to call. The complainant then telephoned IE.
The communications with IE continued. The complainant said that she was scared. IE offered to come and go to the chemist to get "the stuff" [by which she meant "a morning after pill" - also referred to in the evidence as "Plan B"] and to come and help clean the house. There were then some exchanges it is not necessary to record, and the complainant said: "And I like told him like look we can fuck (if condom) but I don't want to date you your [sic] old af [which the complainant said in evidence meant "as fuck"] And he like kept pushing it And he knows where I live I'm honestly scared … "
IE suggested "take him to court For at least physical assault" but the complainant said she did not want to do that because she did not want to tell her family.
Later in the morning IE and her then current partner VR came to the complainant's house and took her to a pharmacy where they obtained a "morning after pill". The complainant said that she was unable to speak to the pharmacist because she would have had to explain why she needed it. The three then went to a McDonalds to "talk about it a bit more". The complainant said that she was then "really emotional". She said that she told IE and VR of the events of the previous evening and early morning.
The text messaging with AW continued later in the day. At 4.30 pm the complainant asked if she could text to AW an account of what had happened instead of talking because: "I'm too like Emotional about it … like it's really really bad dude."
The complainant then sent this account: "I was drinking my maccas thing at the harbour and some guy was like did I miss the fireworks and I'm like yeah lol. Then we get talking and it's a vibe and he buys me like 3 drinks. He then drives me home and like we kinda flirty and shit so I'm like oo. We get into the bedroom and I'm like look I'll just suck your dick ok. But that like wasn't enough he was begging me and begging but I said no cause he didn't have a condom. He then like pushes it to the point where I'm like 'no means no dude' and he would like hit me across the face. He like basically restrained me and raped me. I had to get a morning after pill this morning [IE] got it for me. I feel stupid. And hurt." (The complainant said that "oo" meant "oh".)
At what appears to have been 2.00 am on 11 September 2019 the complainant texted another friend, OC, with whom she had not had contact for 9 months, due to a fight they had had. After some preliminaries the complainant gave a lengthy account of what she said had occurred early on 8 September. This was: "So basically, I drank a bottle of wine alone at my house. I was like in a whole ass mood of fuck Iike, I'm a go myself and get get some maccas, I'm currently just vego cause idk depression. I get myself a frappe and sit near darling harbour. I send you an apology. Then legit just after that a man comes up and like asks if he missed the fire works. It was 11 pm so of course he missed the fire works. We start talking and he is from Brisbane and like idk we vibe really well. I haven't been able to talk to someone like that for so long. So he's [unclear] let's get a drink. And me being drunk as fuck already is like YEET. He takes me to the star (a casino) cause he's a member and can get free drinks. We keep talking and I've already revealed like way too much to a stranger and I don't remember half the shit I said. I do know tho I told him like my work place and uni which was such a stupid ass. So basally we go outside and he kisses me (horribly) and I'm kinda feeling it. At this point this like 29 year old man knows I live a lone and I'm young as hell. It didn't really click until after what his intentions were. He offered to drive me home. We kinda made out in the car and I was like lit. We got to my house and he needed to pee. But my house is like a legit mess rn. It's so messy cause of the breakup I tried to make him not but I'm basically the equivalent of nine drinks in my brain is spaghetti. So he comes in and like I'm tired as hell I want to go to bed, but he kind was flirty so I'm like eh okay let's do this. I told him like 'I'm not ready for this I haven't shaved and I wasn't expecting this' he's like whatever and I'm like nice [at this point the complainant inserted a "thumbs up" emoji, which she said in evidence was sarcastic.] So I get to the point where I'm like have you got a condom? He like I don't ever use it I don't need. I know what I'm doing. I got really mad and I'm like no hoe no condom no pussy. I kinda was like okay just teach me how to suck dick. I thought that's all we were gonna do then he was gonna leave and the next men I meet (better than him) would have like an amazing dick sucking time. So basically I can't remember what happened but I had a break down cause he was pressuring me too much and I told him look I was assaulted last year I find this hard he should go home. He didn't really comfort me. He grabbed my face and said to stop thinking about it and like I started to kinda fight with him super drunk. So it might have seemed flirty or something. He basically when I would say something he didn't like or something about how my body wasn't his he would like slap me across the face super hard. I got super disorientated and it just felt like I was being hit and choked forever. There are some gaps in this but cause I was super drunk. But fast forward to what I can remember. He's saying over and over how he knows what he's doing and I keep saying like no U don't have a condom. Basically it got to he point I didn't know what was going on I just like couldn't understand. And he threw me down and restrained me and raped me. He like hurt me pretty bad cause he flipped me at one point and it fucked up my hip and stuff. So basically I am super drunk and confused. He leaves and go to bed. I wake up the next morning and realising how bad last night was and call [IE]. I'm like broke as hell and [IE] took care of me bought me the morning after pill and everything."
The complainant did not then go to the police.
The complainant said that, for about a month after 8 September, she kept seeing somebody outside the window and that OC suggested that it was a hallucination due to post-traumatic stress disorder. She said that on 1 October, while watching a show on her laptop, and looking up at her window, she saw the appellant "with a cap on looking down at me". She called OC, who in turn called police. Police attended and the complainant told them of the events of 78 September.
It is convenient at this point to interrupt the narrative of the complainant's evidence to observe what the police officer, Senior Constable Michelle Bennett, recorded in her notebook. It was as follows: "POI Simon. Description light/brown blond curly ringlet hair, short afro style, long pointy nose, blue eyes, unshaven, 5 4 to 5 6 tall, average build, slightly overweight, Caucasian, 29 years old, Cleveland Queensland. … TOI time of incident drink bottle of wine, left approximately 11.00 pm, Marrickville station to Central station, walked past UTS straight to McDonalds Darling Quarter purchased frappe. Walked to the water and sat down on wooden stairs whilst consuming drink. Approached by POI. Did I miss the fireworks? Started talking about each other, but mostly questions about the victim. Got free drinks at the TV Star, possibly one hour. Remembers looking at the clock 1 am at Star Casino. Going to catch home, offered to drive home. Went to car, long walk, 15 minutes, not sure. Older tan car, three drinks at the Star, all different. POI purchased drinks. Wine, rum and coke, vodka mix. Got back approximately 2 am. POI needed to use bathroom yes, but then had to leave. Kept coming up with reasons to stay. Can't remember. Put bag in bedroom. Followed her in, said no 20 x saying he was turning the light off but took off his shoes. Got into bed to sleep. 10 mins. Grabbing onto her wrists on top. Slapping on face hard, hard [hand?] around neck, 5 x; squeezed neck hard, hard to breathe: 10 mins vaginal. Wanted to cuddle, tried to cuddle. VIC got up and put PJs on. POI took PJs off 'likes cuddling naked. I want to feel your skin.' VIC put back on. POI walking around getting stuff and VIC and POI looking for her phone. POI left and came back and gave phone back. VIC went back to bed. POI left. No protection. Unsure if he ejaculated. Blue jumper/green pants washed."

[8]

A telephone conversation between the complainant and the appellant - 15 September 2020

The complainant then returned to live with her parents in Queensland. On 14 September 2020 she attended a police station in Queensland. She twice unsuccessfully attempted to call the number the appellant had given her at the casino and sent a text message. On 15 September 2020 the complainant made a call to the appellant, which he returned at 12.24 am the following morning. The call has been referred to as the "pretext call". The conversation was recorded and a transcript, which was not in issue, was made. The conversation, and therefore the transcript, are lengthy. It is necessary to set out significant parts of the conversation, as recorded.
The complainant began by telling the appellant that she needed to talk "like, you low key like changed the course of my whole life …". She went on to say: "… I was just sitting on the pier like super drunk and like you walked up to me and we just talked …" The appellant said that he remembered. There was further conversation about the appellant going to the complainant's home and needing to use the bathroom. At an early point the appellant tried to slow the conversation down; the complainant said that she needed "clarity" because her life "went really shit at the end of that year" and she needed to feel at peace so that he (the appellant) had an understanding of what his actions had done to her.
It is fair to observe that at this point the appellant appears somewhat mystified; however he noted that they had exchanged phone numbers earlier on, and said that he thought that they: "had a really good connection that night, I was really like kind of into you … then you just disappeared …"
The complainant then referred to the circumstances of her being at Darling Harbour and said: "And like, I know that I probably shouldn't have like accepted more drinks from you and all that kind of stuff but, I really, I really did not want to have sex with you when you said you didn't have um a condom because I was terrified cause I I in my last relationship they did not have a penis. And um I was not used to um, having to deal with like pregnancy or anything and um basically um, I said no many many many times and you slapped me across the face, um, and like, at the beginning I will admit like orally, I was doing that so you'd get out of my house. Um, but like I didn't want to have sex with you. Did you think it was consensual? Like I just need to know this." The appellant replied that he was very surprised and very sad to hear what the complainant was saying, he knew they had "a bit to drink and it's a little blurry" but that he had said to the complainant "we were making out". He said "I said to you, 'I completely remember this'."
The following is taken from the transcript of the conversation: Complainant: So lets say you were really drunk too so you don't remember me saying no like at the time of or anything … Appellant: Well, actually I do remember, the first time you said no so we stopped and we were kind of doing something else … Complainant: I had a panic attack … Appellant: talking while making out on your bed … and then … Complainant: I had a panic attack dude Appellant: yeah but you had the panic attack I was holding you I was like calm down, calm down calm down and then, it's like the panic attack subsided, you were just relaxing and everything was ok … And then you said I want to do it. Complainant: No I didn't. I never did. Appellant: You did. You did. I promise you, I promise you did. … Complainant: No listen to me. Listen to me. If it was, I remember why I said no. I do remember why I said no. It was because of no condom, right? And like even if I would have sex with you with a condom … Appellant: No that was … before the panic attack … … Complainant: Like you saying that I have never gotten a girl pregnant with like the pull, like with pulling out, come on, like I never I said yes dude, like ever. And like … Appellant: You did. You said lets do it. Complainant: I didn't. I never did. That's the thing. If I, if that was in, that would be in regard that was in regards to fucking oral sex right, because I agreed to oral sex. I did not in … agree to you fucking entering into … inside me that could risk me becoming fucking like pregnant dude. Appellant: Well to be honest we, we never really did it, I mean you know, beside my point you did say that, but I am not saying that we just kinda going off on a tangent here but … … We didn't even really like have sex. … I was like, you know I was kinda like had a bit too much to drink, I wasn't even hard. … Complainant: Ok Ok, hang on. I just need to get this straight right. So, basically, I'm just going to say it, I, I can understand how sometimes drinking can impact that right? Um you were like fully inside me right actually fucking like going at it, not just my vagina but also my fucking asshole right? Like you did both, and like I don't think if you like had like a fucking floppy dick that it wouldn't, like that you could do that. You did that. Appellant: Well I … I I'm just telling you that I, I do remember that part pretty clearly, like to some extent and I do remember like like felling [sic] like I was I shouldn't have drunk this because right now I'm like you know at forty percent hardness … you know I've got this girl here and, it's just like, it's not nice. It should be hard but … … Complainant: Um, Ok but like, this is like the most crucial bit right … so you were remember right when you like on top of me. I was underneath you. And I k … you kept like trying to say that you could do it you could actually like … I wouldn't become pregnant you were tryna reassure me. You remember that right? Do you remember that bit? Appellant: Ye-ess I think so. Complainant: And then I kept saying no. Appellant: Well you said no at first and then … We kind of stopped, we pulled back, we pulled back and y, like I said the panic attack happened you know I was trying to calm you down I didn't want you to self harm or anything … Complainant: After that I said no. Appellant: You know like I thought, it would be over. But then after the panic attack and like I felt like more reassured, and then you seemed like you wanted to do it and we kind of like started slowly at it and then eventually you said Ok let's do it … It's kind of like yoo - you, you've broken through. That ahh, you know. … Complainant: Ok … Yeah, look, Um, it's just like, that when, when you were, like it's a panic attack, before the panic attack, I would say, the majority of that was consensual because it wasn't going towards like you actually having sex that could lead to a child, right? Um, but as soon as there was the like, option that you could've um … you know, potentially given me the lovely opportunity of being a parent …"
Later, the appellant said that he felt that they had had a great time and that he was "still a little bit upset" that he had never heard from the complainant again after she had asked for his number. He said again that he thought they had "really had a good connection and everything and I thought that we would hang out again. I was looking forward to it."
The complainant referred to the appellant's slapping her, to which the appellant replied: "I may have slapped and held you down while you were having a panic attack. I was trying to snap you out of it …". There followed some discussion about whether slapping was the appropriate means of dealing with the complainant's panic attack, which the appellant accepted may have been a "misjudgment".
The following then ensued: "Complainant: Ok. Ok that's fine umh. I can like um move past that um, so, you believe it was consensual. I believe it was not. Um but I've gone past and like you know, dealt with that now. Um … Appellant: That really hurts a lot to hear you say that. I mean it really does, deep down because its not a nice thing to say at all .. Complainant: Yeah but … Appellant: It was definitely one hundred per cent consensual and … Complainant: Ha ha! Oh My God"
There was then some conversation about the person the complainant had seen (or believed she had seen) outside her window on October 1. The conversation then returned to the events of 8 September. The appellant maintained that the complainant had agreed to the sexual intercourse; the complainant maintained that she had not. The following is recorded: "Appellant: At first you said no, and later on you said oh let's do it. Complainant: I remember where I said … Appellant: So I just … Complainant: where I said what you just said there … Appellant: and we stopped when you said no. Complainant: Yeah then you did it again … Appellant: Earlier on. Then we came back to it later. Complainant: And I said no and no and no and no and then you put it in. You know what that is? Appellant: And later on you said yes. Complainant: I never said yes. Appellant: You said yes, you said let's do it. You said ok let's do it. Because it wouldn't have happened. Complainant: I never said it. Appellant: I, like I said, I felt like we had a good connection. I wouldn't have ever wanted you to feel like ah, not good about what happened. I wanted us to hang out again, I thought we had a good connection, we had something going and maybe something could came out of it, it's not ok, I still thought we would be ok as friends.
The conversation concluded with the complainant telling the appellant that he was "a fucking rapist" and "you fucking raped me" and the appellant maintaining that they had not even really had sex, "even though you gave permission".

[9]

Other evidence in the Crown case

Evidence was given in the Crown case by IE, AW, OC and VR.
IE confirmed that the complainant had rung her on the morning of 8 September. She said that the complainant sounded "very distressed and upset and was speaking shakily, like she was about to cry". She said: "She was telling me about her, the night before, how she had gone out to a restaurant and a man had come and talked to her, and they had gone to a casino, had some drinks and then gone back to her house, where some things that she would rather have not happened did happen, and she was very upset about it. … … She said, she said she only wanted to go up to a certain point, which was oral, and that she did not want to do any kind of penetrative sex and that that was forced upon her."
IE said that she and VR drove to the complainant's home, where she (but not VR) went inside. She said that the complainant looked "distressed and disgruntled". IE said that she wanted to get the complainant a "Plan B pill" and some food and comfort. They went to a pharmacy and afterwards to McDonalds where the complainant gave her an account of the events and said that what had happened was "forced upon her". She said that at times the complainant's voice was "very stern" and at others it was "very shaky". In cross-examination IE agreed that the complainant appeared to be hungover.
VR gave evidence that IE received a phone call from the complainant in which she [the complainant] "was really emotionally distraught", so IE and VR travelled to the complainant's home, and then to a pharmacy. VR said that at the pharmacy, the complainant "had a bit of a, like a break down, she was getting extremely upset and was speaking with [IE] and then [IE] went onto purchase it for her, because she was so distraught."
VR said that they went to McDonalds where the complainant "seemed really emotional and frantic, and she sort of dove into this story of events that happened, I think it was the night before." VR said that, in giving an account of the events of the evening before, the complainant: "…was really graphic, and, the way she was describing it, it was obviously a really traumatic event. She was extremely distraught, and like, emotional and it was really quite stressful hearing all these details about, like, this really violent incident that happened. And she was saying that she was, she was saying no. She was trying to fight against it, and she couldn't. And at that point I was, it was, just a lot to hear, because it was so, like, violent and graphic. …"
VR gave an account of what she recalled the complainant had said (which she acknowledged was "from the best of my memory"), as follows: "…it was that she was drunk, at her place, I believe it was, someone that she met that night I think. And, just it was a lot of violence, and the fact that he was forcing himself on her, and that she was trying to push him and get him off her. She was - I think she mentioned that she was screaming at some point, or just really trying to fight against it, saying no. And that she couldn't - she didn't, like, win the fight. She couldn't get him off of her. And then, so, she was raped by him." VR was not cross-examined.
OC said that, after a lengthy period when she and the complainant had been out of touch, the complainant contacted her, she thought at about 11 pm on 7 September. She did not reply until later, and on 11 September had a quite lengthy conversation via Facebook Messenger. She also took phone calls from the complainant. She said that not long after 11 September she received a telephone call from the complainant in which she was "quite distressed" and "mentioned something about thinking there was potentially someone outside her house."
She said that the complainant in subsequent telephone calls was "quite distressed and upset" and mentioned one in particular where the complainant "couldn't leave the hallway in her house". OC said that, in late September, there were calls from the complainant when the complainant believed that someone was at her house. She said that she had a clear recollection of a telephone call of 1 October 2019 as a result of which OC telephoned police and urged the complainant to remain on the phone with her while she did so.
OC said that, in that telephone call, the complainant told her that she thought somebody was outside her window, but added "it could just be a brain cocktail". Senior Constable Bennett gave evidence that, at about 3.30 am on 1 October
2019, she attended at the complainant's address (presumably in response to OC's call) and spoke to the complainant. She made notes of the conversation, which was a general description of what the complainant said were the events of 7 September and the early hours of 8 September.
In cross-examination Senior Constable Bennett said that the complainant told her that she had seen a face looking in the lounge room window. Senior Constable Bennett formed the view, with the assistance of another police officer, that it would have been extremely difficult for anybody outside to look into the unit. Senior Constable Bennett said that the complainant told her that her perception might have been the result of hallucination.
The officer in charge of the investigation, Detective Littlepage, gave evidence but it adds nothing worthy of note, other than confirmation that the appellant had no prior convictions in Australia. The evidence of AW was also of limited importance, other than confirmation of the content of the text message exchanges between AW and the complainant on 7 and 8 September 2019, and some details concerning AW's view on the complainant's previous relationship with IE.

[10]

The appellant's case

The appellant did not give evidence in the trial. He called a character witness who gave favourable evidence of his character. Otherwise the appellant's response to the allegations was put to the jury via cross-examination of the complainant and the record of the telephone conversation of 15 September 2020, on which he placed considerable reliance (reliance he maintained on appeal). That response was, in essence, that such sexual activity as took place was consensual, but was less extensive than described by the complainant.
Implicit in the cross-examination of the complainant was that, while the appellant accepted that some attempt at penile-vaginal intercourse had taken place, his contention was that he had been unable to sustain an erection and that, in any event, the complainant had (ultimately) willingly participated. The contention that he had been unable to sustain an erection was, no doubt, some attempt to question whether the Crown had proved the first element of a s 61I offence: ie that sexual intercourse had taken place. Bearing in mind that "sexual intercourse" was defined in s 61HA to mean "sexual correction occasioned by the penetration to any extent of the genitalia … of a female person …", that would have been a difficult position to take, and it was not pursued with any vigour. The complainant did not accept either of the propositions put to her. She agreed that she had asked the appellant to "teach [her] how to do oral sex". It was then put to the complainant that there had been a discussion about having penile-vaginal intercourse, to which she replied that the extent of the discussion was the appellant telling her that he wanted penilevaginal intercourse.
Counsel cross-examining appeared to accept that the complainant had initially refused to participate in penile-vaginal sexual intercourse because the appellant did not have a condom, but went on to put to her that, ultimately, she said "ok, let's try it". The complainant denied that proposition.
Counsel put to the complainant that the anal rape she alleged had never happened, and that there was no rape, anal or vaginal. The complainant disagreed with each of those propositions. It is not clear whether the proposition concerning "anal rape" was intended as a challenge to the complainant's evidence that anal intercourse had taken place, or the evidence that it was non-consensual. The question was seemingly carefully framed to avoid specifying what part of the allegation was challenged.
With respect to the common assault count, it was put to the complainant that, during her panic attack, the appellant "lightly slapped you once and once only", and that that was the only time he slapped her. The complainant agreed that the appellant had slapped her once during the panic attack (for present purposes, it may be inferred that she accepted that that slap was "light"); she rejected the proposition that that was the only time the appellant had slapped her.
With respect to the choking allegation, it was put to the complainant that "there was no choking at all like you have described", to which she replied "there was choking".
The cross-examination of the complainant was substantially in accordance with the appellant's responses to the complainant in the telephone call of 16 September 2020, much of which has been set out above.

[11]

The defence final address

The appellant's case was clearly put to the jury in counsel's final address. With respect to the assault count, counsel focused only on what the complainant agreed was a slap by the appellant while she was having a panic attack. That was consistent with written directions given to the jury by the trial judge, in which the actus reus of that count was identified as: "The accused slapped the complainant across the face whilst she was having a panic attack." That is plainly a reference to the single slap which the appellant agreed he had administered, and excludes the allegations by the complainant of multiple slaps. The written directions went on to explain what the Crown needed to prove in order to establish the appellant's guilt of this count. That included: "(i) that the accused did not genuinely believe that it was necessary to act as he did in slapping the complainant to assist her in stopping a panic attack; or (ii) that what the accused did was not a reasonable response to the danger to the complainant as he perceived it to be."
The appellant's case with respect to the assault count, as put to the jury, was that, because (as the appellant claimed in the telephone call) he slapped the complainant "to protect her from her own distress", the Crown had failed to prove that he acted without lawful excuse.
The more significant aspect of counsel's address concerns the appellant's response to the first allegation of sexual intercourse without consent, penilevaginal intercourse. Reflecting what the appellant said in the telephone conversation, counsel put to the jury: 1. that "it simply didn't happen like the complainant said. [The appellant] said in his recorded telephone call that they didn't really have sex" and that "[the appellant] couldn't really get an erection"; and 2. "to the extent that what [the appellant] says in that call leaves open the possibility of some penetration or penetration to some extent while he's trying to have intercourse with her, that possibility is open on the evidence, the interactions between them up until that point, during that point and after that point were all completely consensual. … Any attempt at sexual intercourse was all consensual."
The appellant's case was therefore something of a hybrid: on the one hand, he sought to question (fairly unconvincingly) whether sexual intercourse (as defined in s 61HA) had occurred, but maintained that, if it had, it was consensual. The appellant's case has always been that the complainant did in fact consent. No issue as to the appellant's knowledge of the absence of consent ever arose. No proposition has ever been put that, for example, the appellant honestly, but mistakenly, on reasonable grounds, believed that the complainant consented to the sexual intercourse. The appellant's case was plainly that whatever sexual intercourse had taken place was intercourse to which the complainant had consented.

[12]

The appeal

As indicated above, only one ground of appeal is presently pressed. By that ground the appellant asserts that the verdicts of guilty are unreasonable and cannot be supported having regard to the evidence (Criminal Appeal Act, s 6(1)).
The task of this Court in engaging with such a ground of appeal was stated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 ("M"), in which Mason CJ, Deane, Dawson and Toohey JJ said (at p 493): "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
Their Honours went on to say (at p 494): "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. That is to say, where 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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (internal citations omitted)
For an example of a case in which, notwithstanding the apparent credibility of the principal (and only substantial) witness for the Crown, the court set aside a verdict of guilty on the basis of discrepancies, inadequacies, or lack of probative force, see Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.
In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 ("BadenClay") the High Court (constituted by French CJ, Kiefel, Bell, Keane and Gordon JJ in a joint judgment) emphasised the importance of the role of the jury in the determination of criminal charges and restated the importance of adherence to the principle that jury verdicts are not lightly to be disturbed. Their Honours said: "65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact.' Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code [the Queensland counterpart of s 6 of the Criminal Appeal Act] is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial … 66 With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (internal citations omitted)
The paragraphs extracted above from M have been repeatedly adopted by the High Court: MFA v The Queen (2002 ) 213 CLR 606; [2002] HCA 53 at [25] ("MFA"); SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11] ("SKA"); Baden-Clay at [65]. As a result of observations made by Kirby J in Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21 at pp 147-150, adopted by all five members of the Court in Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [10]-[12], the "unsafe and unsatisfactory" test applied in M is now more accurately formulated in the language of s 6(1) of the Criminal Appeal Act as "unreasonable or [unable to] be supported having regard to the evidence": MFA at [58]; SKA at [12].
In opening his argument in this Court senior counsel who appeared for the appellant contended that, emerging from the decision in M, two questions, and two questions only, arise. The questions so formulated by senior counsel were: 1. do I have a doubt on my examination of the whole of the evidence? 2. [if so] is that doubt dispelled by the advantage which the jury had? (CCAT1-2)
In answering the first question, senior counsel contended, this Court cannot rely in any way adverse to the appellant on the evidence relating to the two counts on which the appellant was acquitted. For my part, I accept that proposition. Senior counsel did accept a proposition from the bench that the acquittals may have the result that, if the Court proceeds to the second question, less deference may be accorded to the jury's advantage. That is (as I understand it) because the acquittals must be taken to evidence some doubt in the jury's mind about the credibility of the complainant.
Written submissions filed on behalf of the appellant contained a series of criticisms of the Crown case. Predominantly, these criticisms relate to the evidence given by the complainant, on which the Crown case depended. Put simply, the argument was that the evidence of the complainant was so unreliable as to be not worthy of acceptance to the requisite standard, and not capable of proof, to the requisite standard, of the appellant's guilt.
The convenient course is to outline each of the criticisms in turn, following the sequence in which they appeared in the written submissions, together with my response to each. However, although the appellant's argument has been segmented in this way, to do justice to the appellant it will be necessary to consider the cumulative effect of such the criticisms of the Crown case as can be sustained, even if those criticisms alone would not be sufficient to engender a reasonable doubt.
To permit an overview of the appellant's case I will catalogue the headings in the appellant's written submissions, before returning to deal with the details of the criticisms. The headings under which the criticisms appear are: "(a) the complainant's unsatisfactory evidence of the interactions between herself and the appellant"; "(b) unsatisfactory aspects of the complainant's account"; "(c) the complainant's inconsistent complaints"; "(d) absence of evidence of injury to the complainant"; "(e) delayed complaint meant no opportunity for any forensic examination"; "(f) police involvement"; "(g) the pretext call"; "(h) the verdicts of not guilty on Counts 2 and 4". It seems to me that the criticisms of the complainant's account under criticism (a) is a subset of the more general criticism of her evidence under criticism (b).

[13]

Criticisms (a) and (b): reliability of the complainant's evidence as accounts

The appellant relied on the complainant's intoxication, and her acceptance that there were parts of the evening that she could not remember. These included the content of the conversations between the appellant and the complainant at Darling Harbour and at the casino, and later in her bedroom, and events in her bedroom, and the sequence of those events.
For my part, I find it unsurprising that the complainant did not have a clear recollection of the conversations referred to; in the first place she was, as has been emphasised, highly intoxicated; in the second place, she was giving evidence three years after the events.
It is not accurate to say that the complainant's evidence was that she could not remember what happened in her bedroom. The submission cited a question and answer in the complainant's cross-examination, that being: "Q: So there were things that you can't remember from that time you went into the bedroom until afterwards? A: Yeah."
However, the following question and answer are also pertinent. They are: "Q: That includes not just conversation, but things that happened between you? A: No, I remember most of the physical interaction that happened." The complainant gave considerable detail of her recollection of the events in her bedroom.
Seven separate aspects of the complainant's evidence said to be "unsatisfactory" were identified.
First, it was contended that the complainant's evidence that the sole reason she permitted the appellant to enter her apartment was so that he could use the toilet was inconsistent with her "stated attraction" to him. The asserted "stated attraction" to the appellant was said to emerge from, inter alia, the text message to OC at 2.00 am on 11 September 2019 in which, after saying that the appellant kissed her "(horribly)" the complainant said: "I am kinda feeling it… we kinda make out in he (sic) car and I was like lit …" In her evidence in chief the complainant was asked to explain what she meant by "lit". She answered: "So 'lit's' like good I guess, I don't know, like 'fire' which is also another word for good."
Reliance was also placed on the text message to AW, at 4.30 pm on 8 September, in which the complainant said: "He then drives me home, and like we kinda flirty and shit, so I'm like oo". The complainant explained that "oo" meant "Oh that's all")
I accept that there was some indication that the complainant experienced some attraction to the appellant, and indeed the complainant agreed in crossexamination that she was feeling "affectionate" towards him and that she felt a "mild" attraction to him. There was, however, nothing in her evidence that suggested that she harboured any desire for sexual engagement with the appellant and nothing that was inconsistent with her stating that she did not want him to come into her apartment because it was "too messy", and certainly nothing that contradicted her evidence that she would not participate in penilevaginal intercourse without a condom.
In the same context, reliance was then placed on the absence of any evidence that the complainant had asked the appellant to go home after he emerged from the bathroom. The complainant did say, however, that she had suggested oral sex so that the appellant would go home.
I do not accept the contention, made by the appellant, that the content of certain of the text messages between the complainant and her friends supported the proposition that the complainant was sexually attracted to the appellant. Those upon which reliance was placed were:

the message to IE on 8 September 2019 when the complainant said 'and like I told him like look we can fuck (if condom) but I don't want to date you you're old [as fuck]';
a message to AW on 8 September 2019: '… he drives me home and like we kinda flirty and shit so I'm like oo. We get into the bedroom and I'm like look I'll just suck your dick …';
a message to OC on 11 September 2019 … 'so he comes in and like I'm tired as hell I want to go to bed, but he was kind of was flirty so I'm like ok eh ok let's do this. I told him like I'm not ready for this I haven't shaved and I wasn't expecting this' He's like whatever and I'm like nice [thumbs up emoji] …' These messages, subsequent to the events in question, do not, in my opinion, speak of sexual attraction; rather, they denote resigned submission, lacking any expression of willing participation. At best for the appellant; the evidence shows no more than that, as the complainant said, she experienced "mild attraction" to the appellant.

It was then contended that the complainant's account of what happened before, during and after the panic attack was inconsistent with her evidence that, afterwards, the appellant repeatedly slapped and choked her. The contention, put simply, was that, as the evidence did not suggest that the appellant had behaved in this way before the panic attack, it was unlikely that he would have done so after.
I do not agree that any such conclusion or inference should be drawn. The complainant's account was of some persistence by the appellant in requesting penile-vaginal intercourse, and her steadfast refusal to participate in that form of intercourse without the use of condom. Her account of the appellant slapping her repeatedly is entirely consistent with mounting frustration by the appellant (who also, on the evidence, had consumed alcohol, although the evidence does not establish to what extent).
The next proposition on behalf of the appellant concerned evidence given by the complainant that she had yelled at the appellant "get off me and just stop". It was put that, in circumstances where the walls of the apartment were thin and provided little sound insulation, that evidence would not be accorded credibility. The (unstated) premise appears to be that the complainant's evidence in this respect could not be accepted because, if she had "yelled", the neighbours could be expected to have rendered assistance. It was said that the complainant "discounted" that proposition on the basis that the neighbours did not like her very much because she was (previously) in a same-sex relationship. There are other reasons for discounting the proposition. There was no evidence that any neighbours were at home. There is no reason to believe that any of the neighbours who heard "yelling" would have intervened. Indeed, it is well known that onlookers or passers-by may, understandably, be reluctant to intervene in the domestic affairs of individuals. I place no weight on this argument.
The next proposition was that if the complainant's account of the slapping and choking were correct it was unlikely that the appellant would (as the complainant said) have wanted to cuddle her. Again, I disagree. It is entirely consistent with human behaviour that the appellant, having achieved his goal of penile-vaginal intercourse, would want to display some affection to the complainant.
The sixth and seventh propositions under this head depended on the evidence that, before the appellant left, he assisted the complainant to look for her mobile phone, which he eventually located in his car and which he brought to her. This, also, was said to be unlikely if the allegations of sexual assault, choking and slapping were true. Moreover, it was pointed out, the appellant knew that the complainant had recorded his mobile phone number in her phone. Returning it to her would enable her to establish his identity, and also to make a complaint to police.
To the first of these criticisms, I would repeat that there was every reason why the appellant, having achieved his goal, would assist the complainant in the way alleged. There is a little more substance to the second argument, that, if the appellant were guilty of the offences, returning the mobile phone was against his interests. Whether that (alone or in combination with other factors) is sufficient to engender a reasonable doubt remains to be seen.

[14]

Criticism (c): inconsistent complaints by the complainant

The next point made on behalf of the appellant concerned what was said to be inconsistency in the complaints made by the complainant. This was a reference to the text messages sent by the complainant to IE and AW in the early hours of 8 September, immediately after the appellant left the apartment (see [25][33] above). In neither of those messages did the complainant make any allegation of non-consensual sexual intercourse, choking, or repeated slapping. It was suggested that those text messages "amounted [merely] to a complaint that the sexual interaction with the [appellant] was not enjoyable".
Examination of those text messages firmly contradicts that proposition. The complainant told IE that she had refused penile-vaginal intercourse without a condom; that the appellant "kept pushing it"; that he knew where she lived and she was scared.
The message to AW is also telling. The complainant told him that the oral sex "wasn't enough" for the appellant, and he kept "begging and begging" and that she continued to refuse to participate without a condom. She concluded by saying that the appellant "restrained me and raped me". That is not a description of a disappointing sexual experience.
Nor are the descriptions by IE and VR of the complainant's conduct and behaviour later in the morning of 8 September consistent with disappointment in an unenjoyable sexual experience; they are, however, consistent with reaction to a traumatic experience.
Detailed reference was then made to the subsequent messages, which, it was contended, continued to omit any reference to choking or penile-anal penetration.
In the message to OC the complainant said: "… I told him like 'I'm not ready for this I haven't shaved and I wasn't expecting this' he's like whatever and I'm like nice [thumbs up emoji] so I get to the point where I'm like yo you got a condom? He's like no I never use it I don't need it I know what I'm doing. I got really mad and I'm like no hoe no condom no pussy. I kinda was like ok just teach me how to suck dick."
Although the complainant did not explicitly use the language of non-consent, there is ample in these messages to support her claim, in evidence, that the act of penile-vaginal intercourse was non-consensual. There was no inconsistency in the messages. Rather, a fair reading of the messages shows a consistent description of a non-consensual sexual encounter. That every message did not contain precisely the same information does not tell against the accuracy of the accounts given.
The appellant's criticism under this head appears to be:

that the complainant did not give a full account of the whole of the events of the early morning of 8 September in any one of the messages; and
that the complainant did not, in reporting to her friends what she said had happened, include reference to every detail, including her account of (non-consensual) anal sex and choking.

It was not correct to say that no reference was made to choking. In the same lengthy message to OC the complainant said: "I got super disorientated and it just felt like I was being choked forever".
The argument was that the complainant's omission of these asserted events renders her evidence unreliable. When regard is had to the circumstances in which the text messages were sent are taken into account, the criticisms, and the inference that the complainant's evidence was unreliable, can be seen to be unsustainable. The initial messages were sent immediately after what the complainant asserted to have been an initially congenial, but ultimately unwelcome and violent, encounter with the appellant, at a time when she was intoxicated. The complainant explained that she had not mentioned the anal intercourse to IE, AW, OC or to Senior Constable Bennett because she was embarrassed. It is inapposite to approach the text messages in the way the appellant does. The complainant did not purport to be giving a detailed account in the sense that she might if preparing a statement for a legal case. It is quite apparent that, in the earlier messages, she was in a state of considerable anxiety and seeking contact with two close friends. I do not consider that the absence of any reference to choking or anal intercourse in the initial messages diminishes her credibility, or her reliability (although, as will be seen below, I am of the view that those omissions are important in understanding the acquittals).

[16]

Criticism (e): delayed complaint

The next criticism concerned the delay on the part of the complainant in reporting the events to police, which had the consequence that there was no forensic examination. The point made in this respect was that, as the first time the complainant made any report to police was on 1 October 2019 (when the police contact was because of her concern that the appellant was lurking outside her window, and which she did decline to pursue at that time) there was no opportunity for the police or the appellant to conduct any physical examination of the complainant. It is well understood that delay in reporting an alleged offence can be the cause of disadvantage or even prejudice to an accused person: Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60. I do not discount the significance of this argument. However, the effect of the delay has to be seen in the context of the appellant's response to the allegations: he did not deny that there was sexual contact, at least penilevaginal. He however, argued that, having regard to the account given by the complainant, immediate medical examination might have revealed that there was (or was not) physical injury. Not mentioned by the appellant, but relevant, is the possibility of DNA evidence to support or contradict her allegation of anal intercourse. (DNA evidence of penile-vaginal intercourse would not be inconsistent with the appellant's case, as discerned from the telephone call, cross-examination of the complainant and counsel's final address). As I have said, I accept that delay in reporting is material consideration in acceptance of the complainant's evidence.
A further complaint made under this heading was that the delay in complaint meant that there was no opportunity for investigating police to locate CCTV footage of the appellant and the complainant when they were together at Darling Harbour and the casino. In this respect reliance was placed on the complainant's evidence that, after they had had drinks in the casino, she and the appellant went to an outside area where the appellant kissed her "really aggressively".
There was evidence that investigating police had sought CCTV footage from the two locations, but that, given the time that had elapsed, no such footage remained in existence. While I accept that this is a circumstance relevant to be taken into account, I regard it as very minor point. It is highly unlikely that any CCTV footage would to any significant extent support, or cast doubt on, the complainant's description of the event she described.

[19]

Criticism (h): the acquittal on counts 2 and 4

The appellant's final argument rested on the acquittal of the appellant on counts 2 and 4, which, it was argued, could be taken into account when considering the reasonableness (or otherwise) of the verdicts of guilty on counts 1 and 3. The appellant expressly disclaimed reliance on the acquittals as an indication that the jury found that the complainant lacked credibility generally, but, at the same time, submitted that: "… when examining the reasonableness of the jury's verdicts of guilty and whether they are supported by the evidence, the Court can have regard to the fact that the jury acquitted the applicant on two of the four counts, in circumstances where each count on the indictment allegedly arose during one period when the applicant and the complainant were alone together in the early hours of 8 September 2019. The prosecution case relied upon an acceptance by the jury of the reliability and truthfulness of the complainant's evidence."
The impact, in a multi-count trial, of acquittals on some counts and verdicts of guilty on others was comprehensively considered in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. The relevant authorities are surveyed in Cullen v R [2022] NSWCCA 63. Particular reference should be made to the reasoning of the joint judgment of Gleeson CJ, Hayne and Callinan JJ in MFA (in which the court rejected a ground of appeal that contended that Markuleski was wrongly decided). It is worth setting out, again, the salient paragraphs of MFA: "34. Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but requires something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman [(1987) 44 SASR 591 at 593], and referred to in later cases [including MacKenzie]: it may appear to a jury, that although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed. 35. It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on others, is unreasonable, or cannot be supported, having regard to the evidence."
I accept that, in some cases, a verdict or verdicts of not guilty on one or more counts in a multi-count trial may be relevant to the assessment of the credibility of a complainant on other counts which have resulted in conviction. It is necessary closely to examine all of the circumstances, including the circumstances that may be seen to have been the basis of the acquittals: see R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, to which reference was made on behalf of the appellant. In this case, I am satisfied that the jury were persuaded, by trial counsel's argument, to be cautious in accepting allegations that had not been included in the complainant's accounts of the events to her friends and to Senior Constable Bennett. That is in accord with the joint judgment in MFA. Although the choking allegation was included in passing in the 11 September message to OC, that mention in a lengthy message appears to have been largely (and unsurprisingly) overlooked.
In their written submissions counsel provided a summary of the reasons for which they contended the verdicts of guilty are unreasonable and unsupportable on the evidence. These are: 1. the complainant's significant intoxication; 2. the "evolution" of the complainant's account; 3. the absence of detail in the complainant's accounts of her engagement with the appellant at Darling Harbour at the casino, and at her apartment; 4. inconsistency of some conduct attributed by the complainant to the appellant with the conduct she alleged; specifically, the return of her mobile phone; 5. inconsistency of accounts given by the complainant to different friends; 6. the absence of any mention by the complainant in those accounts, and the account given to Senior Constable Bennett on 1 October 2020 of choking or of anal intercourse (a proposition that is not entirely accurate); 7. the account given to OC in which the complainant said "so basically I can't remember what happened" and "there are some gaps in this bit because I was super drunk"; 8. absence of any evidence of injury despite the complainant having been in company with IE and VR a few hours after the event; 9. the absence of any early report to police, with resultant loss of opportunity for forensic examination, and loss of CCTV footage; 10. the "bizarre" account given by the complainant of events after 8 September 2019, specifically her perception of the presence of the appellant at her window; 11. the responses of the appellant in the telephone call of 16 September 2020; 12. the appellant's age (29) and his previous good character; (xiii) the acquittals on counts 2 and 4.

[20]

Consideration

I have carefully considered all of these arguments and the whole of the evidence. As can be seen from the commentary that accompanies the outline of the appellant's criticism of the Crown case, I am not persuaded that any, other than a very limited number of criticisms, have any substance. Those that have some (limited) substance are the complaints that the appellant was hampered in his defence by the delay in reporting, and the evidence that the appellant returned her phone to the complainant, knowing that it contained his contact details, was not indicative of a guilty mind.
Neither of these is sufficient to cast any doubt on the Crown case. The complainant's evidence was cogent. She answered questions apparently frankly, making concessions that could have diminished the Crown case (acknowledging for example, her role in fellating the appellant and her intoxication).
Contrary to the appellant's submissions, the messages sent by the complainant in the immediate aftermath of the events are significantly consistent with her evidence, and cogent.
I am unpersuaded that the verdicts of guilty were not open to the jury. I am, on the contrary, having made my own independent assessment of the evidence, satisfied beyond reasonable doubt that the Crown established that the appellant was guilty of the offences of which he was convicted.
The significant basis for that conclusion lies in my assessment (obviously, without the advantage of the jury in seeing and hearing the evidence) of the complainant's evidence. She clearly acknowledged, not only that she engaged in oral sexual intercourse with the appellant, but also that she asked him to "teach her how to do it". She acknowledged that she was "mildly" attracted to him, and looking for affection. Most importantly, she was, on her evidence, steadfast in maintaining that she would not engage in penile-vaginal intercourse without a condom, expressly because of her concern about potential pregnancy. That that was her concern is supported by her conduct later that morning, in obtaining a "morning after pill". It was also acknowledged by the appellant to have been her initial position, although he claimed that she later was a willing participant.
I would therefore grant leave to appeal but dismiss the appeal.
The orders I propose are: 1. leave granted to appeal; 2. appeal dismissed.
BUTTON J: My own analysis of the evidence accords very largely with that of Simpson AJA. I consider that it was open to the jury to return verdicts of guilty on the two counts under appeal.
WEINSTEIN J: I have had the considerable advantage of reading the judgment of Simpson AJA in draft form. Like her Honour, I am satisfied that in this case the jury acquitted the appellant of counts 2 and 4 because of inconsistencies between the complainant's version of events and her accounts of those events to her friends and to Senior Constable Bennett.
As to the verdicts of guilty to counts 1 and 3, the function of this Court when determining a ground of appeal that a verdict is unreasonable and cannot be supported by the evidence is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of the offence for which he has been convicted: Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 (Dansie) at [7] applying M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M). Referring to M the High Court in Dansie observed at [8]: "The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function 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", that question being "one of fact which the court must decide by making its own independent assessment of the evidence"." [citations omitted] [emphasis added]
In answering this question, an appellate court must not disregard or discount that the jury is the body entrusted with determining guilt or that the jury also had the advantage of having seen and heard the evidence: see M; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell). This advantage includes (but is not limited to) being able to assess whether or not a witness has given reliable and credible evidence, and as explained by the High Court in Pell at [39], the role of an appellate court: "…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."
Further, the Court should give weight to the ability of the trier of fact to make assessments in the context of a trial where evidence is adduced orally, as opposed to merely reading the record: see Jaghbir v R [2023] NSWCCA 175 at [136] per Button J citing The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65].
In this case, the Crown case relied principally on the evidence of the complainant. Simpson AJA has set out that evidence at length in her judgment. The complainant's credibility and reliability were very much in issue at trial. In my opinion, her evidence was troubling in some respects, all of which were pointed out to the jury in trial counsel's closing address. Further, the jury had the benefit of the pretext call in which the appellant set out his version of events, and they were given a direction in accordance with Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, about which there is no complaint.
In my opinion, the complainant's evidence, if accepted by the jury in material respects was capable of proving the appellant's guilt beyond a reasonable doubt. There are no matters amounting to "inconsistencies, discrepancies or other inadequacy" which would satisfy this Court that "the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt": see Pell at [39].
Having conducted a thorough assessment of the evidence and the trial record, I would grant leave to appeal and dismiss the appeal.

Sakar v R

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