PAYNE JA: Having reviewed the evidence as a whole, I agree with Button J, for the reasons his Honour gives, that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offence charged. I also agree that the applicant has not established that the trial miscarried by reason of the prosecutor's submissions. I agree that the appeal should be dismissed.
BUTTON J:
Introduction
On 12 March 2015, Nafez Rached Tabbah (the applicant) was arraigned in the District Court at Sydney before Judge Frearson SC and a jury panel. He pleaded not guilty to an indictment containing a single count. It alleged that, on 19 August 2013 at Mosman, he had sexual intercourse with the complainant, without her consent, knowing that she was not consenting. That count was brought pursuant to s 61I of the Crimes Act 1900 (NSW). At the conclusion of the trial by jury that ensued, a verdict of guilty was returned. Subsequently, his Honour sentenced the applicant to a term of imprisonment. Because there is no appeal against sentence, the details of the sentence need not be further discussed.
The following grounds of appeal against conviction were notified and pressed at the hearing before this Court:
Ground 1: The conviction is unreasonable and cannot be supported having regard to the evidence.
Ground 2: The trial miscarried by reason of the Prosecutor's submission that the jury would be satisfied that the Complainant did not consent as she did not have the capacity to do so and the learned trial judge not adequately correcting that matter in summation.
Ground 3: The trial miscarried by reason of the Prosecutor's submission that the jury would be satisfied that it was apparent to the Appellant that the Complainant was unable to consent and the learned trial judge not adequately correcting that matter in summation and not adequately directing the jury about the required state of mind of the Appellant.
Grounds 2 and 3 call for consideration of what the prosecutor said in his opening and closing addresses to the jury, and the directions that his Honour subsequently gave to the jury in the summing-up. Ground 1 calls for a detailed examination of the evidence in the trial, to which I now turn.
Summary of evidence
The Crown case in a nutshell was the following. In the early hours of a Monday morning, the applicant, a taxi driver, took advantage of the fact that the complainant, a passenger in his taxi, was grossly intoxicated. He did so by having penile/vaginal sexual intercourse (intercourse) with her without her providing free and voluntary agreement to that act, he well knowing that she was not so agreeing.
The Crown relied upon the following witnesses.
The complainant
The complainant was a young woman, aged about 22 years, on the evening in question.
On Sunday 18 August 2013, at about 9.20PM, she travelled from her home at Seaforth to Wynyard Station. There she met her friend, whom I shall call Lisa Hart in order to protect the anonymity of the complainant. They were intending to spend an evening out together.
They walked from Wynyard to a takeaway food outlet on Oxford Street, Darlinghurst. There they purchased some food and, whilst sitting in the restaurant eating it, shared some wine and vodka from a bottle that was in the possession of Ms Hart. The complainant had two or three sips of vodka. Ms Hart drank about half the bottle.
After that, the two of them walked a short distance to the Colombian Hotel on the same street in the same suburb. Whilst walking, they shared some cannabis that Ms Hart had brought with her. The complainant smoked about half a "joint".
The two young women arrived at the hotel between 10.30PM and 11PM. They spent the rest of the evening there, until the early hours of Monday 19 August 2013. In this time the complainant consumed (in order, over the course of the evening) a glass of wine, a glass of wine and a shot of tequila, and a further glass of wine.
Whilst at the hotel, they met two men who were strangers to them. One of the men tried to purchase a drink for the complainant, but his credit card was declined, and the drink had to be returned over the bar. Before that occurred, the complainant had one or two sips from the glass. After some further conversation, the complainant found the man to be "creepy", and she engaged the assistance of a security guard, who eventually asked the man to leave the hotel.
Shortly after that, the complainant began to feel intoxicated in a way that was not referable to alcohol or cannabis. She formed the belief that some sort of drug had been placed in the glass from which she took two sips. She gave evidence that "something was wrong, like something was coming over me", and that the experience was not the same as becoming intoxicated by alcohol. She also described how a degree of tension that she had felt towards her friend began to manifest itself, without the complainant being able to control that process.
The two young women left the hotel, and walked down Oxford Street in the direction of Hyde Park towards Whitlam Square. CCTV footage from a camera positioned outside the hotel captured them leaving; it became Exhibit D.
Eventually, the two of them sat down on a bench seat. The complainant had her head in her hands. She said in evidence that she "knew something was wrong with me, like this was not normal".
The tension between the two of them reached a point where the complainant stood up and entered a taxi without her friend. The complainant sat in the front passenger seat. Ms Hart declined to join her. The complainant left the area in the taxi. The driver of the taxi was the applicant.
The taxi travelled from the centre of Sydney over the Harbour Bridge, along the intervening freeway, and thereafter onto Military Road, Neutral Bay. Whilst the taxi travelled that route, the complainant took a number of photographs with her iPhone. They included a copy of the taxi driver's licence of the applicant, which was displayed on the inside of the front of the windscreen. The complainant said in evidence that, at the time she took the photographs, "physically I was feeling like I was coming undone".
At 3.16AM, the applicant pulled the taxi over. He also turned its meter off. CCTV footage from a camera positioned outside the Honey Rider Bar on Military Road, Neutral Bay shows the taxi pulling up. The complainant can be seen alighting from the taxi, squatting down for a while on the footpath, and then returning to the taxi, again sitting in the front passenger seat.
Thereafter, electronic records show that the taxi commenced to move again, heading generally east on Military Road towards Mosman. Records show that the vehicle commenced moving again at 3.20AM. Notably, the applicant did not reactivate the meter, and it remained off.
The Crown case, based upon the evidence of the complainant, was that, during that part of the journey, the applicant placed his hand on the leg of the complainant and asked "Do you want to have sex with me?" The evidence of the complainant was that she reacted with disbelief.
At 3.21AM, the taxi pulled into the Midas Service Station, further to the east on Military Road. According to the complainant, the taxi came to a halt inside an open workshop. Electronic records show that the taxi was stationary between 3.21AM and 3.31AM. The complainant gave evidence that her body was adversely affected, and that the events were like "my worst nightmare is coming true right now".
At trial, there was no dispute that the applicant and the complainant had intercourse in the motor vehicle at that location.
The evidence of the complainant was that the applicant undid his seatbelt, alighted from the driver's seat of the taxi, and walked around the front of the vehicle to the passenger seat. He opened the front passenger door. The complainant tried to move her body towards the centre of the vehicle. She recalled that her left leg was out of the taxi, but her right leg was within it. Her evidence was that the applicant commenced to remove her tights, and undid one of her shoes. She attempted to keep her tights up by holding them with both of her hands.
The complainant gave evidence that, due to her level of intoxication, she was unable to "fight", and simply leant back in the seat. As the applicant undid his trousers, she looked away and focused on his taxi licence. She made an effort to remember the numbers 0811, in order to be able to recall the identity of the man who was sexually assaulting her.
The complainant gave evidence that, whilst the applicant was removing her pants she said "Stop". She recalled that the intercourse lasted one or two minutes. She said that, whilst it was occurring, she was doing "nothing".
Her evidence was that, after the intercourse had come to an end, the applicant returned to the driver's seat and said "Put your clothes on and get out of my cab". She alighted a minute or so later, and the applicant drove off.
According to the complainant, she staggered from the service station to a nearby bus stop, of which she took a photograph that was subsequently located on her iPhone and tendered in the trial. The timestamp on the photograph was 3.36AM.
Although the memory of the complainant about it was very unclear, the Crown case was that she walked from the service station to Spit Junction, a five or ten minute walk away. She then entered a second taxi, which was driven by Mr Nasreddine Bensaidi.
In evidence-in-chief, the complainant said she had no recollection of the second taxi journey. Her first recollection was of alighting from the taxi in the street where she lived and asking for a receipt, although at one stage she believed that the receipt had been provided by the first taxi driver.
A receipt subsequently found to be in the possession of the complainant was given to police. It became Exhibit G in the trial. It was on the letterhead "Silver Service", and had a handwritten entry. The date was recorded as 19/06/13, and the number of the taxi as "2415". The journey was shown as "city to home", with a fare of $50. The taxi number on the receipt matched neither the number of the taxi driven by the applicant nor the taxi of Mr Bensaidi.
CCTV footage from inside the taxi driven by Mr Bensaidi was tendered in the Crown case. In "stop motion" form, it shows Mr Bensaidi and the complainant over a period of 18 minutes.
The next recollection of the complainant was of waking up the following day at about 12.30PM. She realised that she had changed her underpants but had no recollection of having done so. She entered a bathroom, and on her way out encountered her mother. When asked what was wrong, she burst into tears and told her mother what had happened: "I think I need the morning after pill he had sex with me".
Thereafter the police were contacted and attended the home. They retained items of clothing that had been worn by the complainant the previous evening. They also located one of the shoes that the complainant had been wearing at the time. It was found on top of a garbage bin outside the home.
At about 8.15PM on the same day, the complainant attended a hospital where she was examined by a doctor. A number of injuries were observed, including scratches and abrasions, photographs of which became an exhibit in the trial.
Turning now to cross-examination, the complainant agreed that she had made a detailed statement to police on 20 August 2013.
She accepted that she made no complaint to the second taxi driver of having been sexually assaulted by the applicant.
It was suggested that she could be seen kissing the second taxi driver on the CCTV from that taxi, and was avoiding that fact, including by way of her claim of amnesia about that trip.
She did not recall asking the second taxi driver for $100.
She agreed that she did not mention in her original statement anything about the first stop on Military Road. She agreed that it was only after being shown CCTV footage of that stop by police that that event came back to her.
Her position was that she took the photographs of the licence of the applicant because she had, at that time, a "bad feeling". Nevertheless, she accepted that, having alighted from the taxi of the applicant at the first stop, she re-entered the taxi.
She was asked questions about her ability to walk from the Midas Service Station to the bus stop where she was picked up by the second taxi driver. She estimated that distance as being 100 metres or so.
She agreed that in her first statement she had spoken of being sexually assaulted, but thereafter being driven all the way home by the applicant, a version of events that could not be correct.
She agreed that her version, and her recollection, evolved over a series of statements, and that seeing the CCTV played a role in that evolution.
She was taken to the details of events at the fast food restaurant and the hotel at Darlinghurst.
She agreed that, in the original statement, she recorded nothing of note between her entering the taxi and the applicant suggesting sex to her, including the taking of the photographs and the feeling of apprehension.
She also agreed that, in that statement, there was nothing about the first stop on Military Road and her re-entry to the taxi of the applicant. Nor was there anything at all about travelling in the second taxi. She confirmed that, despite her purported bad feeling, she re-entered the taxi of the applicant when she had a perfect opportunity to walk away.
She agreed that she made no complaint to her parents of having been sexually assaulted when she arrived home.
She confirmed that, watching the CCTV four months after the event, her recollection of important matters had changed.
She agreed that, whilst walking along a main road after having been sexually assaulted, she neither phoned the police (despite having her mobile phone with her) nor otherwise sought assistance. She agreed that she did not do so, even though at the hotel she had been quite content to involve hotel security in order to remove a man whom she merely found disconcerting.
It was put to her that the CCTV of the second taxi ride clearly shows her kissing the second taxi driver four times.
She was asked a number of questions about whether she recalled certain interactions with the second taxi driver. Those questions were seemingly based on his statement to police. She recalled little or nothing, including the proposition that she had demanded $100 of the second taxi driver because he had kissed her.
The following propositions were put to her by defence counsel as representing the defence case. As the first taxi travelled across the Harbour Bridge, she spoke to the applicant of having been out in an effort to "pick up" sailors. The first stop was at her instigation. After she returned to the taxi, she commenced to take off her pants and underpants. Thereafter she masturbated in the presence of the applicant. She said to him words to the effect of "give me $100, and we can have sex". Intercourse took place between the two of them, and she agreed to it. After the intercourse, the applicant drove her to the point where she was picked up by the second taxi driver.
Apart from accepting that the first stop may have been at her instigation, and that intercourse did indeed occur, the complainant bluntly denied all of the other propositions.
The mother of the complainant
The next witness called in the Crown case was the complainant's mother. On Monday 19 August 2013, she had been at work in the morning and returned home at about 12.20PM. Because the arrangement had been that her daughter was to sleep at the home of Ms Hart, her mother went to see why she was in fact at home. When she saw the complainant leaving the bathroom, her mother noted that she had "a look of despair". The witness saw the complainant start to cry, and that she looked frightened. The complainant said to her mother "I need the morning after pill". Her mother asked why, but she kept crying. The two of them spoke for about half an hour. The complainant was saying that a taxi driver had sex with her. The witness described the complainant as "crying" and "close to hysterical". Her mother described the visit by police to the home, and the attendance at the hospital.
In cross-examination, the witness agreed that she and the complainant enjoyed a very close relationship.
Lisa Hart
Ms Hart was the third witness in the Crown case. As at August 2013, she had known the complainant for about 10 years, and they had been school friends. The witness confirmed that, on 18 August 2013, the two of them met at Wynyard at about 10.30PM. She confirmed that the two of them walked to the fast food outlet on Oxford Street, but her evidence was that, unlike the complainant, Ms Hart did not eat there. She described the two of them having a couple of sips of tequila and wine at the restaurant, over the course of about 20 minutes. After that they walked to the hotel. Her position - contrary to that of the complainant - was that the complainant did not consume any cannabis on the way to the hotel.
She confirmed that, at the hotel, the two of them were drinking wine and tequila. Her recollection was that they consumed three rounds of drinks during the night.
Ms Hart also confirmed that the two of them met two previously unknown men in the smoking area of the hotel. The complainant briefly went to the bar with one of the men in order to obtain some drinks. Eventually, one of the men was asked to leave by hotel security.
Before she went to the bar with the man, the demeanour of the complainant was fine. Afterwards, she became agitated and angry. The two young women left the hotel because the complainant was becoming distressed. Ms Hart described the complainant as "very upset" and "clearly upset with me".
According to the witness, the two of them walked down Oxford Street with the intention of returning to Wynyard to catch separate buses home. After walking about 100 to 200 metres, they stopped outside a bar so that the complainant could compose herself. She remained agitated, rose to her feet, and told Ms Hart that she was leaving and that Ms Hart needed to "figure it out".
The complainant very quickly entered a taxi and departed. That was at about 3AM. Ms Hart returned to Wynyard Station, and caught a bus back to her home.
At the time of the departure of the complainant, Ms Hart described herself as being quite aware of the world around her, and not feeling drunk.
In cross-examination, Ms Hart said that, at the hotel, the complainant drank the same amount of alcohol as she did.
Medical examination
Dr Yvonne Bloomfield gave evidence of an examination of the complainant at about 8.15PM on 19 August 2013 after her complaint of having been sexually assaulted.
She saw that the body of the complainant had suffered a number of linear abrasions. They were: a small abrasion on the left side of her chin; a linear abrasion on her left forearm; and a smaller horizontal abrasion on the outside of her left forearm that was a little distance from the other scratch. The complainant also had a lesion about 3-4 millimetres wide on the inner aspect of her left lower leg. There were also a number of smaller linear scratches on the inside of her left lower leg. Photographs of those injuries became Exhibit J in the trial.
According to the doctor, the complainant had given a history of having consumed five to six glasses of wine and two tequila shots on the evening in question.
In cross-examination, the doctor agreed that she did not observe any abnormalities to the genitals of the complainant, although in re-examination she agreed that that finding did not contradict the history of intercourse without consent that she had been given.
As for the injuries that she did observe, the doctor expressed the view that they could be consistent with the history given by the complainant, but they could also have been caused by other mechanisms, such as a fall.
DNA matches
A DNA expert gave evidence that a high vaginal swab taken from the complainant showed a mixture of DNA from two individuals. The mixture was consistent with originating from the complainant and the applicant.
A tape lift taken from the inner and outer sides of underwear worn by the complainant showed a DNA profile that emanated from three individuals. The DNA from the third contributor was found at a very low level. It was very likely that the other two contributors were the complainant and the applicant.
A further tape lift from the inner and outer sides of the waistband of the black tights of the complainant revealed DNA that appeared to originate from two main individuals. The complainant and the applicant could not be excluded as the major contributors to that mixture.
In cross-examination, the witness was asked about secondary transfer of DNA, and whether it could be excluded as a possible explanation for the DNA profile of the applicant being found on the items of clothing detailed above. Although the witness expressed the view that the strength of the DNA profile argued against secondary transfer, she accepted that it could not be absolutely excluded as a possibility.
Pharmacologist
Dr Perl, pharmacologist, gave evidence of the well-known effects of alcohol.
She noted that at 8.15PM on 19 August 2013 blood and urine samples were taken from the complainant. No alcohol was detected in her blood sample, although signs of cannabis consumption were detected. Also found was an unspecified concentration of the drug Doxylamine, an antihistamine that can have a powerful sedative effect.
The pharmacologist explained that cannabis and alcohol enhance the effects of each other if used together.
It was also said that Doxylamine has very potent effects as a central nervous system depressant. It can be used therapeutically if a patient is experiencing difficulty sleeping due to severe pain. Again, the pharmacologist explained that Doxylamine interacts with alcohol and increases the level of impairment.
As for the time at which the drug Doxylamine entered the body of the complainant, without knowing the quantity consumed the pharmacologist stated that it could have been at any time within the day or two preceding 8.15PM on 19 August 2013.
Noting that alcohol was found in the urine of the complainant but not in her blood, and making a number of different assumptions, the pharmacologist posited a range of likely blood alcohol concentrations of the complainant as at 3.30AM on 19 August 2013 (the time of the intercourse) of between 0.104 and 0.251.
In cross-examination, the witness accepted that the effect of alcohol on a person would depend on his or her level of tolerance. The pharmacologist also explained how alcohol remains in one's urine longer than it remains in one's blood.
She spoke of the effects of cannabis generally lasting for 4-6 hours after ingestion. The degree of intoxication would depend upon how much was consumed, and the strength of it. Again, tolerance could play a part in the reduction of intoxication of chronic users.
Two witnesses about taxi systems
The despatcher for the Silver Service taxi company was the next witness in the Crown case. He described how information sent and received from taxis was retained as a Selected History Record (SHR), and could be subsequently accessed. The jury was provided with the SHRs in relation to the applicant and Mr Bensaidi as Exhibit N and Exhibit O. They were referred to in the cross-examination of the witness to show the movement, speed and journey of both taxis.
In similar vein, an electronic technician described the CCTV cameras fitted to taxis and how they operate. He explained that they take shots every few seconds and work off a trigger such as the opening of the doors, turning the meter on or off, or the driver pressing an alarm switch on or off. The witness explained that when the camera was switched on by any of those events, it would take footage with one image being captured every four seconds.
No footage was retrievable from the taxi driven by the applicant, because (the witness explained) it had been overridden by new images, in accordance with the system in place. In the case of the taxi driven by the second taxi driver, Mr Bensaidi, such a recording was available, and it was placed before the jury as Exhibit A.
Officer-in-charge
The detective in charge of the investigation was the next witness. He explained the provenance of a number of exhibits in the trial. He also gave evidence that the distance along Military Road from the Honey Rider Bar (the location of the complainant first alighting from the taxi of the applicant and the meter being turned off) to the Midas Service Station (the location of the intercourse) was about 1.6 kilometres. His estimate was that the distance from that service station to the bus stop further along Military Road (from which the complainant caught the second taxi) was about 1 kilometre.
He also gave evidence of two recorded interviews in which the applicant took part on 23 September 3013 and 18 November 2013, the details of which I shall set out shortly.
In cross-examination, he estimated the distance between the takeaway food outlet and the hotel on Oxford Street as being about 240 metres.
The second taxi driver
The next witness in the Crown case was Mr Bensaidi, the second taxi driver. He gave evidence that, in the early hours of 19 August 2013, after he briefly stopped at a coffee shop in Neutral Bay, the complainant signalled him to pull over. At that stage she was at the intersection of Spit Junction and Military Road.
On entering the taxi, she told him that she wanted to go to Seaforth. She told him that she was "OK" and had been at a party at the home of a friend. As they were driving down through the curves of Spit Road toward the Spit Bridge, the complainant fell over onto him, and he pushed her back into the passenger seat. He gave evidence that that happened a number of times.
He also gave evidence that the complainant "was showing like she wanted to have a kiss", and that he had kissed her "just to keep her calm and quiet". After that, whilst the taxi was stopped in Sydney Road facing in the direction of Seaforth, Mr Bensaidi asked the complainant for her street or house number. Although she did not reply, and fell onto him again, he formed the opinion that "she wanted to have a kiss again", and kissed her.
Eventually, they arrived at the home of the complainant. He asked her for payment of the fare, which was about $17 or $18. According to the witness, the complainant claimed not to have cash on her, and provided a credit card, which was declined. Mr Bensaidi asked whether she could go inside and obtain some cash, but the complainant refused, claiming that it would wake others. The witness gave evidence that he told the complainant that he would forego the fare, but the complainant responded by stating that he owed her $100 because he had kissed her. His response was that he had not wanted to kiss her, and that it was she who had wanted to kiss him. Because at the time the complainant was smiling and laughing, the witness formed the view that she was joking about claiming $100 as payment from him for the kiss.
The witness gave evidence that the complainant kissed him again to thank him for the free trip in the taxi. According to the witness, she wished to kiss him on the lips, but he offered his cheek instead.
As to the level of intoxication of the complainant, his assessment was that before she entered the cab she "appeared as normal for me".
Once she was inside the vehicle and commenced falling onto him, the witness gave evidence that one could tell that she was "over the limit" with regard to drink driving. His assessment was that her level of intoxication was 6 to 7 out of 10.
When showed the taxi receipt that I have detailed, Mr Bensaidi gave evidence that the handwriting on it was not his.
In cross-examination, he agreed that there were several kisses between himself and the complainant. His evidence was that when they were stopped at Seaforth he had said to the complainant "I can't do this, I'm a married man".
In cross-examination, he agreed that he had previously said in conference with the lawyers for the prosecution that, after the journey, he had come to think that the complainant was actually pretending to be intoxicated, in order to avoid having to pay the taxi fare.
First recorded interview of the applicant
In the first record of interview of 23 September 2013, the applicant said the following.
He had picked up the complainant as a taxi passenger in Oxford Street, Darlinghurst. A friend who was with her did not enter the cab. Once in the cab, the complainant began to talk about how she and her friend had been out in an effort to meet sailors.
The complainant had asked to be taken to Neutral Bay. When they reached Military Road, Neutral Bay she asked the applicant to stop so that she could alight. At the stage, the taxi meter read $37. She provided a $50 note to the applicant, got out, and left the door open. Then she unexpectedly re-entered the cab.
She thereafter asked to be driven home. On the way, the complainant commenced to disrobe, and "enticed" the applicant to have intercourse with her. The cab was stopped by the applicant, but he found that he could not have intercourse with her because "I've never done that since I got married, I just couldn't do that". The applicant asked the complainant to put her clothes back on, whereupon she demanded $100. She claimed that the applicant had told her that he would give her $100, a proposition that he denied. The complainant then asked to be driven to the Spit Junction. The applicant drove her there and "this is the end of the story".
In terms of the level of intoxication of the complainant, the applicant said that, although she smelt of alcohol, the complainant was not drunk. From over two decades of taxi driving experience, the applicant assessed her intoxication as 2 or 3 out of 10.
During the journey, the complainant had spoken of having lost some of her money. Subsequently, the applicant came to the view that the disrobing by the complainant and her demand for $100 cash were motivated by that lost money, and a desire by the complainant to "take advantage of him".
When asked by police why he did not reactivate the meter after the complainant returned to the taxi, he told them that it was because he had already been provided with $50 cash. It was when she returned to the taxi that she commenced to take her clothes off. The applicant denied that he had removed them.
The position of the applicant was that, despite disrobing in his presence, the complainant said nothing about sexual contact of any kind.
In relation to the event at the service station, the applicant claimed that he parked the taxi in the car park and stopped the car. The complainant removed her pants but left her top on. The two of them were at the service station for about four or five minutes.
According to the applicant, the complainant was masturbating, and he proposed to have intercourse with her. The applicant claimed, however, that "the smell of her" dissuaded him from having intercourse with the complainant, and "he just couldn't do it". According to the applicant he did not remove his pants, he did not undo his fly, nor did he expose his penis. The applicant also claimed that a medical condition interfered with his ability to maintain an erection.
He told the police that the fact that, whilst he was driving the taxi, the complainant removed her clothes, was masturbating, and had previously mentioned how she and her friend had gone out "to pick up" sailors in combination made him think that "maybe" the complainant wished to have sex with him.
He agreed that the complainant did not say anything to him about wanting to have intercourse with him. He said that "when I came around she never said nothing to me. She never said yes or no or anything."
At the car park of the service station, the applicant walked around to the front passenger side of the vehicle to where the complainant was sitting and climbed on top of her. She was sitting in the seat inside the taxi, and no part of her body was outside of the car. That was because, when they arrived at the service station, the complainant herself had reclined the front passenger seat.
The applicant denied that his penis entered the vagina of the complainant. To his recollection, his penis did not touch any part of her body to any degree.
Towards the end of the first recorded interview, the applicant admitted that he had digital/vaginal intercourse with the complainant. His position was that he touched her vagina with his hand, and inserted one or two of his fingers for about 1 minute. He then climbed off her and "begged her to put her clothes on". At that time, the position of the complainant "just was lying".
Second recorded interview of the applicant
The applicant engaged in a second recorded interview on 18 November 2013. It may be summarised as follows.
At an early stage of the interview, the applicant was informed by police that a profile derived from semen found on high vaginal swabs taken from complainant had been matched with his own DNA. In response, he claimed that, after the conclusion of the first interview, he had always wished to talk to police about whether he had in truth had intercourse with the complainant, and that he wished to apologise to the police for misleading them. He told them at no stage did he threaten or harm the complainant; nor did he force her to have sexual intercourse with him. The applicant readily accepted that he had denied intercourse a number of times in the first interview, but said he had done so because he was "scared". He also spoke of having been married for 23 years, and never having been unfaithful to his wife before.
His position in short was that, although he had lied with regard to one aspect, "everything [else] in the [first] interview was a hundred percent truth". He maintained the position that he had believed that the complainant wished to have sexual contact with him because of her behaviour. During the second interview, he claimed that the complainant explicitly told him that she had gone out that evening because she "wanted to have sex with somebody". He agreed with police that the complainant did not say that she wished to have sexual contact with him. He maintained the position that the complainant removed her own stocking and tights and was masturbating in front of him in the taxi before they had intercourse.
The applicant maintained the position that he took off only his clothes, not those of the complainant. He told police that he was now being truthful and that there was "nothing else I got to hide".
According to the applicant, it was whilst watching the complainant masturbating and seeing that she was becoming sexually aroused that he decided to pull the taxi over at the service station with the intention of having sexual intercourse with the complainant. Once they pulled into the service station "it was all perfect". The applicant emphasised that the complainant never said no - indeed she never said anything - and that the applicant never forced the complainant to have intercourse with him.
In the second interview, the applicant maintained the position that the complainant had spoken of sexual contact in return for $100. He provided police with the thesis that the complaint of sexual assault really stemmed from his refusal to pay $100 to the complainant after the intercourse had finished.
His assessment of the level of intoxication of the complainant at the second interview was that she was affected by alcohol "about 50%" and that she appeared to have been drinking but was not intoxicated or heavily drunk.
That concludes my summary of the Crown case. The applicant did not give evidence, called no evidence, and did not raise character in the Crown case.
Ground 2
The trial miscarried by reason of the Prosecutor's submission that the jury would be satisfied that the Complainant did not consent as she did not have the capacity to do so and the learned trial judge not adequately correcting that matter in summation.
Ground 3
The trial miscarried by reason of the Prosecutor's submission that the jury would be satisfied that it was apparent to the Appellant that the Complainant was unable to consent and the learned trial judge not adequately correcting that matter in summation and not adequately directing the jury about the required state of mind of the Appellant.
It is convenient to deal with these grounds together. It is also convenient to deal with them before turning to the assertion that the verdict is unreasonable.
Relevant aspects of the trial
As can be seen, the grounds are based upon things said by the prosecutor to the jury at various stages of the trial, and the response of the trial judge in the summing-up. Counsel for the applicant explained that the following passages form the basis of the grounds.
First, in his opening to the jury, the prosecutor said the following (12/3/15, T11.47-12.18):
The next element that you're going to need to look at is without [the complainant's] consent. The Crown is going to be relying to prove that element on what [the complainant] tells you that she did not wish to consent to the act of sexual intercourse. Consent, the Crown will be submitting to you, requires a conscious and voluntary agreement to have sexual intercourse. One of the things the Crown is going to be asking you to look at is [the complainant's] state of intoxication. Now if a person has sex whilst substantially intoxicated by alcohol that can be something - that means that they are not consenting. So you are going to be, the Crown submits, wanting to have a look at that. The Crown will be relying on the evidence of [Ms Hart], [the complainant], Dr Perl and what can be seen in the CCTV video from both the City of Sydney, the Honey Rider Bar and Mr Bensadi's car to illustrate that particular point.
The final aspect is that the accused knows that [the complainant] is not consenting. The Crown will be asking you to look at the circumstances as a whole. The Crown is going to have to prove beyond reasonable doubt that the accused knew [the complainant] was not consenting. In order to do that the Crown is going to ask you to look at all the circumstances of the event, [the complainant's] response, [the complainant's] behaviour, [the complainant's] intoxication and what the accused has said about the matter to police. Those elements that you can look at to get inside the accused's mind to satisfy yourself that the accused knew [the complainant] was not consenting.
Secondly, the following exchange occurred between his Honour and the prosecutor in the absence of the jury, after that opening (12/3/15, T14.12-32):
HIS HONOUR: Mr Crown, when you opened you opened on knowledge of lack of consent, you didn't open on recklessness and you didn't open on no reasonable grounds for belief. It seems to be the classic case of--
TRIAL ADVOCATE: Of recklessness.
HIS HONOUR: Or no reasonable grounds for belief because on your case the complainant didn't say anything during the act. It's almost the classic case of, yes.
TRIAL ADVOCATE: I must admit I was kicking myself for that when I sat down, but I will--
HIS HONOUR: I wanted to raise it before the cross-examination starts because otherwise it's misleading if you then--
TRIAL ADVOCATE: Yes, I do understand your Honour. I would probably be inclined to expand it to the recklessness approach your Honour.
HIS HONOUR: At the moment I'm proposing to give directions on what the Act says about knowledge of lack of consent, the whole lot of it…
Thirdly, in his closing address to the jury the prosecutor said the following (18/3/15, TT169.9-14):
The Crown is submitting to you that on the basis of all the evidence that's being led before you, you will come to the conclusion that [the complainant] was substantially affected by alcohol and, in those circumstances, incapable of consent, and, in those circumstances, readily apparent to the accused, that she was so affected by alcohol that she couldn't consent. Those may be the main features you really want to focus on in relation to that.
Fourthly, later in his closing address, the prosecutor said the following to the jury (20/3/15, TT208.16-19):
"… It is not a description of somebody offering themselves for money. It is a description of how [the complainant] was on that might [scil. night]; intoxicated by alcohol, unable to consent and at the mercy of the accused. The Crown submits on that you will find the accused guilty…"
Fifthly, after the closing address of the prosecutor, but part way through the closing address of counsel for the applicant, an exchange occurred in the absence of the jury between his Honour and the prosecutor: at TT214.3-4 (20/3/15). His Honour remarked that the prosecutor had "pitched" the Crown case on the basis of actual knowledge and not "recklessness or [scil. no] reasonable grounds of belief [in consent]". Accordingly, his Honour indicated that he would not be directing the jury about those bases of inculpation during the summing-up.
Sixthly, his Honour summed up to the jury as follows (20/3/15, T4-5):
A person consents if the person freely and voluntarily agrees to have sexual intercourse. Consent involves free and voluntary agreement to have sexual intercourse. Consent, or lack of consent, may be communicated by words or actions, either one. The lack of physical resistance, by that reason alone, by reason only of that fact, is not regarded as consent. It can be taken into account, but it is not regarded as consent by that reason alone. You take all of the circumstances into account. Substantial intoxication is relevant to the question of consent, you must take substantial intoxication into account if you find there was substantial intoxication. But substantial intoxication of itself does not preclude consent, it is relevant to the question of whether the Crown has proved beyond reasonable doubt that the complainant did not consent, did not freely and voluntarily agree to have sexual intercourse. It is something that you take into account on that issue. And that's the state of mind of the complainant. The Crown relies upon the complainant's evidence, the complainant said she did not consent.
Seventhly and finally, later in the summing-up his Honour directed the jury as follows (23/3/15, T3-4):
As I understand the Crown case, it is essentially this. That the complainant, for one reason or another was substantially intoxicated. The Crown submits, you just need to look at the other evidence apart from what people say. Look at her in the second cab, she was just not normal. She was in no condition when she was in the accused's cab to offer any physical resistance at all. The Crown case is she was opportunistically exploited by the accused, who took advantage of her very obvious intoxication. That is the case in a nutshell. She didn't consent to the sexual intercourse and he well knew it on the Crown case.
[emphasis added by me in all of the above extracts]
Submissions about grounds 2 and 3
The position before this Court of counsel for the applicant may be summarised as follows. She submitted that much of what the prosecutor had said to the jury, both in opening and closing, was legally incorrect, and a misunderstanding of the various sub-sections of s 61HA of the Crimes Act (the section). Having said that, she accepted that all that his Honour had said on the topic in the summing-up was entirely correct. In other words, her complaint was not that there was any misdirection in the summing-up. Rather, the nub of these grounds is that, despite the correctness of the directions given by his Honour to the jury at the end of the trial, it was possible that the jury remained confused, in light of the legal errors in the addresses of the prosecutor. In short, her submission was that the summing-up was not erroneous, but rather inadequate, in that his Honour did not explicitly invite attention to, and correct, the erroneous things that had been said to the jury about the law by one of the advocates.
She accepted that her contention before us had not been put forward by counsel then appearing at the trial. She also accepted that, as a result, r 4 of the Criminal Appeal Rules (NSW) must be overcome. But she submitted that, in light of the centrality to the trial of the questions of the state of mind of the complainant and of the applicant at the time of the intercourse, the rule should not stand in the way of either ground being upheld.
Separately, counsel for the applicant made a particular complaint. It was said that, although his Honour confined the Crown case to "actual knowledge", in the circumstances of this case a specific direction should have been given to the jury, as follows. If they came to the view that the applicant genuinely but mistakenly believed that the complainant was consenting (or rather, if they had a reasonable doubt about that), then the jury must return a verdict of not guilty, in light of the circumscription of the Crown case.
The Crown conceded before this Court that there were legal errors in what was said by the prosecutor, both in opening and in closing. The submission was, however, that the directions in the summing-up were correct and perfectly clear. It was also submitted that the absence of any application by trial counsel for further directions, explicitly inviting attention to what the prosecutor had said and disavowing it, shows that defence counsel was content with what his Honour had said, and satisfied that the jury understood it. In those circumstances, she submitted, each ground should be rejected.
Determination of grounds 2 and 3
Turning to my determination of these two grounds, it is convenient first to set out the entirety of the section:
61HA Consent in relation to sexual assault offences
(1) Offences to which section applies
This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J and 61JA.
(2) Meaning of consent
A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
(3) Knowledge about consent
A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:
(a) the person knows that the other person does not consent to the sexual intercourse, or
(b) the person is reckless as to whether the other person consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:
(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but
(e) not including any self-induced intoxication of the person.
(4) Negation of consent
A person does not consent to sexual intercourse:
(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or
(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or
(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual intercourse because the person is unlawfully detained.
(5) A person who consents to sexual intercourse with another person:
(a) under a mistaken belief as to the identity of the other person, or
(b) under a mistaken belief that the other person is married to the person, or
(c) under a mistaken belief that the sexual intercourse is for health or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means),
does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief.
(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:
(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.
(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.
(8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.
A number of aspects of the section can be noted.
First, as can be seen from sub-section (1), the section as a whole applied to the trial of the applicant on the count brought pursuant to s 61I of the Crimes Act.
Secondly, the section deals with the subject matter of both the state of mind of the complainant and the state of mind of the accused that needs to be proven beyond reasonable doubt in a sexual assault trial to which the section applies.
Thirdly, the latter topic is not without its complications: as sub-section (3) shows, the inculpatory state of mind of an accused person can be proven in three different ways, the last of which may be characterised as including objective culpability: see [Decision Restricted] [2016] NSWCCA 52 at [155]. It is separately established that recklessness on the part of an accused person with regard to a sexual offence can be proven in a number of ways, including complete non-advertence: see R v Kitchener (1993) 29 NSWLR 696 at 702, referring to Henning v R (New South Wales Court of Criminal Appeal, 11 May 1990, unrep) at 31.
Fourthly, the section as a whole is an unusual amalgam of concepts. In sub-section (2), it defines consent (and therefore, conversely, lack of consent) in a clear and concise way. In the latter part of sub-section (3), it mandates things that must and must not be taken into account by the jury in assessing whether the Crown has proven the requisite mental element on the part of the accused. In sub-sections (4) and (5), it conclusively defines circumstances in which a complainant is to be regarded as not consenting. In the latter part of sub-section (5), it reverts to the topic of the inculpatory state of mind of the accused, and defines a further basis upon which that may be established. In sub-section (6), it sets out a non-exclusive list of "grounds" that may lead to a conclusion by the jury that a complainant was not consenting. In sub-section (7), it is made clear that lack of "actual physical resistance" on the part of a complainant does not, of itself, establish consent on his or her part. Finally, in sub-section (8), it is emphasised that this section (including the list in sub-section (6)) is not exclusive of other grounds on which it may be established that a person does not consent to sexual intercourse.
Turning to this particular example of application of the section, a number of the things said by the prosecutor to the jury were not strictly correct or at least potentially confusing; I infer that they occurred because of the difficult aspects of the section that I have summarised above.
In particular, one way of reading the extract of the opening in [124] above is that the fact that a person is substantially intoxicated by alcohol "means" that he or she is not consenting to intercourse. As sub-section (6) demonstrates, that is merely a ground upon which it may be established that the person was not consenting: whether or not that factor actually establishes beyond reasonable doubt that the complainant was not giving free and voluntary agreement is a matter for the satisfaction of the jury.
Separately, I consider that the first extract from the closing address of the prosecutor that appears at [123] above also features an elision of concepts. Self-evidently, a person does not consent to sexual intercourse if he or she does not have the capacity to do so: as a matter of practical reality, human beings do not do things that they are incapable of doing. That principle is reflected in sub-section (4)(a). But to suggest that the circumstance of a person being substantially affected by alcohol meant of itself that he or she was incapable of consent was not correct. Nor would the fact that the complainant was substantially affected by alcohol mean that, of itself, it demonstrated that it was "readily apparent" to the applicant that she was incapable of consenting. As sub-section (6) envisages, much will depend on the evidence in a particular trial, and the evaluation of it by the jury.
Thirdly, although the submission to the jury of the prosecutor that the complainant was "unable to consent" may have been open on the evidence, and was consistent with the equivalence between incapacity to consent and lack of consent created by sub-section (4)(a), the reference was apt to confuse. That is because the state of mind of the complainant that needed to be proven beyond reasonable doubt was simply that the intercourse had occurred without her consent; in other words, without her free and voluntary agreement. The Crown did not have to go further and prove that the complainant was incapable of consenting. Although they are closely related, an incapacity to do something (whether it be to form a state of mind, to perform a physical act, or anything else) is conceptually separate from a failure to do that thing. In other words, if one did not have the capacity to do something, one cannot have done it; on the other hand, simply because one did have that capacity, does not mean that one actually did it.
In short, I accept the joint position of counsel before this Court that some of the legal concepts discussed in the two addresses of the prosecutor were presented in a confused and confusing way to the jury.
That by no means leads, however, to the success of either ground. That is because, to adopt again the joint position, the directions given by his Honour were, with respect, perfectly correct. As can be seen from my extracts at [126] and [127], his Honour correctly defined consent (in accordance with sub-section (2)); referred to the lack of physical resistance as not demonstrating consent (in accordance with sub-section (7)); referred to substantial intoxication as something to be taken into account with regard to the question of lack of consent (in accordance with sub-section (6)); and, finally, restricted the inculpatory mental element to actual knowledge of lack of consent (in accordance with sub-section (3)(a)). That was done in accordance with the exchange between his Honour and the prosecutor based upon the opening and closing addresses of the latter. That restriction to proof of "actual knowledge" on his part undoubtedly favoured the applicant.
I do not accept that it was a miscarriage of justice for his Honour to fail to go further, and draw attention to the errors in the addresses of the prosecutor in order to correct them. Such a step may have been disadvantageous to the applicant for at least two reasons. First, it may have confused the jury to repeat the errors of the prosecutor in order to correct them. Secondly, the repetition of the incorrect concepts may have emphasised them in a way that could perhaps have made them attractive to the jury, and led to inappropriately closed reasoning about intoxication, lack of consent, and knowledge of both on the part of the applicant.
Of course, it may sometimes be appropriate in summing-up for a trial judge to correct errors about legal or factual matters in the address of either counsel by explicitly drawing attention to them. But that way of dealing with such a problem is by no means mandatory. Much will depend on the circumstances of the particular trial. Here, the approach taken by his Honour was perfectly open.
I am fortified in that view by the fact that defence counsel sought no redirection about these topics at the end of the summing-up. That not only plays a role with regard to r 4 of the Criminal Appeal Rules; it also supports my opinion that to have adopted the course for which counsel for the applicant now contends may well have done more harm than good, in terms of jury comprehension and the applicant being accorded a fair trial.
In short, whilst I accept that the prosecutor was unclear and confusing in some things he said about the law with regard to sexual assault, I do not consider that, in light of the clarity and correctness of the directions in the summing-up, they occasioned a miscarriage of justice.
As for the separate submission about the further explanation that it is now said his Honour should have given about an honest but mistaken belief in consent, I do not accept it. His Honour made it perfectly clear that what the Crown had to prove beyond reasonable doubt was actual knowledge on the part of the applicant that the complainant was not giving free and voluntary agreement to the intercourse. As I have said, that restriction with regard to the mental element of the applicant that the Crown needed to prove was highly advantageous to the applicant, bearing in mind the breadth of sub-section (3) of the section. To speak of a genuine but mistaken belief, when the success of the Crown case was circumscribed in that way, would almost certainly have muddied the waters of comprehension, quite possibly adversely to the applicant. And in any event, r 4 of the Criminal Appeal Rules applies to this submission, and plays the same two roles.
For those reasons, I propose that grounds 2 and 3 be rejected.
Ground 1
The conviction is unreasonable and cannot be supported having regard to the evidence.
Submissions about ground 1
The written submissions filed on behalf of the applicant summarise the submissions made by defence counsel at trial. They separately set out the aspects of the evidence that are said to show that this ground should succeed. The following summary is a melding of both of those sets of submissions against conviction.
The complainant did not remember the second taxi ride because she did not wish to. She made no complaint to the second taxi driver, and appeared cheerful to him. Nor did she complain to her parents upon arriving home.
There was a striking similarity between the version of the applicant and the evidence of the second taxi driver with regard to the complainant demanding $100 (in the former case, in return for intercourse; in the latter case, in return for a kiss). It is noteworthy that the second taxi driver did not have his version impugned by the Crown by way of an application to cross-examine pursuant to s 38 of the Evidence Act 1995 (NSW).
As for the level of intoxication of the complainant, the CCTV from outside the hotel in Darlinghurst did not suggest that it was significant. Ms Hart, who had drunk roughly the same amount of alcohol as the complainant, was not particularly affected. The applicant was sufficiently unaffected to walk something in the order of 1 kilometre along Military Road.
No scientific evidence linked the false receipt to the applicant.
The lie told by the applicant in the first interview about not having penile/vaginal sexual intercourse with the complainant was not probative of consciousness of guilt; patently, there were other explanations for it.
The reliability of the memory of the complainant about all events could be tested by her complete amnesia with regard to the second taxi journey.
The lower end of the estimate provided by the pharmacologist with regard to the blood alcohol reading of the complainant - 0.104 - was not overly high. Although Ms Hart described the demeanour of the complainant as having altered, she did not observe frank signs of intoxication such as impaired motor skills and the like.
It would be unlikely for the complainant to have been drugged by taking two sips from a glass. The finding of a sedative in her urine sample, in light of the absence of other evidence, did not corroborate that she had been drugged. In any event, she was quite capable of walking along Military Road.
In her interaction with the second taxi driver, the complainant had described herself as "OK", had not appeared distressed, and had kissed him on four occasions.
Determination of ground 1
The test to be applied in resolving a ground such as this was not the subject of controversy before us. As Hoeben CJ at CL said most recently in this Court in MG v R [2017] NSWCCA 14 at [82]:
The correct approach in determining this ground of appeal is stated in SKA v The Queen [2011] HCA 13; 243 CLR 400 where the plurality (French CJ, Gummow and Kiefel JJ) said:
"11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:
"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".
12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."
13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
"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 occurred."
…
14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." [Footnotes omitted]
Here, I consider that it was perfectly open to the jury to find the applicant guilty of the offence upon which he had been arraigned. I say that for the following reasons, in generally descending order of importance.
First, in my opinion, the change of position of the applicant between the first and second recorded interviews destroyed the credibility of his denials, and rendered them worthless. Not only that, his adamant and repeated denials that penile/vaginal sexual intercourse had taken place in the first interview - completely disavowed once he was confronted with scientific evidence to the contrary - was compelling evidence of consciousness of guilt on his part (that was the only portion of the Crown case that his Honour had permitted to be left to the jury on that basis).
Secondly, repeated watching of the CCTV taken from the second taxi shows that the complainant was grossly intoxicated. Not only did she fall from the front passenger seat many times, she is also to be seen (at picture 80/172 on camera 2) to be lolling back in the car seat with her eyes half-closed in a state of grossly compromised consciousness. That graphic visual depiction of how the complainant appeared, minutes after the intercourse took place, very powerfully supports the proposition that, at the time, she was not providing free and voluntary agreement to it, and the applicant well knew that fact.
Thirdly, the jury saw the complainant give evidence in person. In the same vein, the jury saw and heard two lengthy recorded interviews in which the applicant engaged. As a result, the jury was in an immeasurably better position than members of this Court to assess the credibility of the complainant and the applicant.
Fourthly, despite the possibility of secondary transfer, the finding of a DNA profile identical to that of the applicant, on more than one location on the clothing of the complainant, strongly supported the proposition that he had removed her clothing. That proposition is not only inconsistent with the final position of the applicant as to what he did or did not do shortly before the intercourse took place. In the circumstances of this case, it is also more consistent with intercourse without consent than intercourse with consent.
Fifthly, although cross-examination of the complainant was firm and extensive, no "knock-out blow" was landed. In particular, many of the inconsistencies and gaps in recollection on her part could be amply explained by her gross intoxication, the evidence for which came from many sources: the complainant herself, Ms Hart, the second taxi driver, the finding of the shoe on the garbage bin, and the CCTV from the second taxi.
Sixthly, the suggestion that a young woman would not only disrobe in front of a taxi driver (whom she had met a matter of minutes before), but also proceed to masturbate in front of him whilst sitting in the front passenger seat, must be assessed as inherently incredible.
Seventhly, it is true that the complainant did not speak to anyone upon her arrival at home, and only complained of having been sexually assaulted the following day to her mother. But I repeat: the CCTV from the second taxi shows that she was grossly intoxicated. The finding of one of her shoes on top of a garbage bin outside the home the following day supports that proposition. It is also to be recalled that, when she spoke to her mother, the complainant spoke bluntly and with distress of having been sexually assaulted. To my mind, the complaint evidence does not detract from the Crown case; indeed, it plays a role in its strength.
Eighthly, it is true that the various injuries seen to the person of the complainant the following evening on medical examination could be explained by her falling down, bumping into objects, and the like. But they were also available for the consideration of the jury as to whether she had in fact been sexually assaulted in the close confines of a motor vehicle. And in any event, the alternative explanation was a "two-edged sword" from the perspective of the applicant: if the complainant was indeed so intoxicated as to be falling and injuring herself, that hardly assisted his case.
Ninthly and finally, little was made at the trial of the presence of a sedative in the bloodstream of the complainant on examination. No doubt that was because the evidence was equivocal. Nevertheless, to my mind that evidence supports the proposition that the complainant had indeed been drugged at the hotel, and was not merely affected by the combination of alcohol and cannabis. That in turn goes quite a long way to supporting the proposition that she was as intoxicated as she claimed, and not as little affected as the applicant claimed.
Separately, one would have thought that the seeming provision of a receipt with a false taxi number on it, and the failure to reactivate the meter after the first stop on Military Road (with the effect that the CCTV in the taxi of the applicant was not engaged at that time), might be suggestive of consciousness of guilt on the part of the applicant. Because his Honour declined to leave that evidence to the jury on that basis, however, those parts of the Crown case have not formed part of my reasoning about this ground.
Finally, it is quite true that the similarity between the alleged conduct of the complainant towards the applicant and her conduct towards the second taxi driver - claiming $100 from each of them for some sort of intimacy - should be noted. In the absence of any application pursuant to s 38 of the Evidence Act, one must approach the evidence of Mr Bensaidi about that topic as being truthful and correct.
It is possible that in her grossly intoxicated state the complainant was saying such things. But it was quintessentially a matter for the jury to determine what one should make of the similarity between the assertions of the two men; to determine what role, if any, that similarity should play in assessing the credibility of the complainant; and to determine what role it should play in the question of lack of consent and knowledge thereof generally. And in any event, in my opinion, the exculpatory effect that that evidence may have had is simply swamped by the strength of the other matters to which I have referred.
Apart from that aspect, I respectfully think that the other matters relied upon by counsel for the applicant with regard to this ground are of little moment. The criticisms of the evidence of the complainant can readily be explained by her gross intoxication.
In short, far from this being a case in which the verdict is unreasonable, to my mind the Crown case at trial was very strong. To my mind, it was well open to the jury to return a verdict of guilty.
It follows that I would not uphold ground 1.
Orders
I propose the following orders:
1. Leave to appeal against conviction granted.
2. Appeal dismissed.
[2]
Amendments
24 April 2017 - [140] - "lack of" deleted from before "consent on his or her part".
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Decision last updated: 24 April 2017