Tanujaya v R

Catchwords: CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury’s verdicts of guilty for six counts of sexual intercourse without consent were unreasonable and could not be supported having regard to the evidence — where no reasonable doubt as to applicant’s guilt — where it was open to jury to be satisfied that applicant was guilty beyond reasonable doubt of each of the six offences with which he was charged — where leave to appeal granted but appeal dismissed

Legislation Cited: Crimes Act 1900 (NSW), s 61I
Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Cases Cited: Harper v R [2022] NSWCCA 211
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v ZT [2025] HCA 9; 99 ALJR 676

Category: Principal judgment

Parties: Steven Tanujaya (Applicant)
Rex (Respondent)

Representation: Counsel:
JS Stratton SC (Applicant)
C Young (Respondent)
Solicitors:
Justinian Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/364819

Publication restriction: Section 578A of the Crimes Act 1900 (NSW) prohibits the publication of the name of the complainant, or any matter that is likely to lead to her identification.

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 1 July 2024, a jury of twelve unanimously convicted the applicant, Steven Tanujaya, of six counts of sexual intercourse without consent, knowing that the complainant, CK, did not consent, contrary to s 61I of the Crimes Act 1900 (NSW). The offending occurred in the early hours of 11 September 2022 at CK’s apartment. CK performed oral sex on the applicant (oral intercourse) consensually, and they had consensual penile-vaginal (vaginal) intercourse which was followed, on the Crown case, by six instances of non-consensual sexual intercourse, comprising three instances of penile-anal (anal) (counts 1, 4 and 6), one instance of oral (count 2) and two instances of vaginal (counts 3 and 5) intercourse, corresponding to the six offences of which the applicant was convicted.

The applicant did not give evidence at trial but an electronically recorded police interview with him on 3 December 2022 (shortly after his arrest on that day) was played to the jury. He did not dispute that two incidents of penile-vaginal intercourse and two incidents of penile-anal intercourse took place between him and CK on 11 September 2022, and that he choked and slapped her, but he said that CK consented to the sexual intercourse they engaged in that morning.

The applicant appealed against his convictions on the basis that the six verdicts of guilty were unreasonable and could not be supported having regard to the evidence. This raised mixed questions of law and fact, meaning that he required leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The applicant contended that there were four aspects of the evidence which made the jury’s verdicts unreasonable:

(i) What he submitted was an inconsistency between CK’s accounts shortly after the alleged offending and the evidence she gave at trial;

(ii) CK’s conduct after the alleged assaults;

(iii) Communications between the applicant and CK on various apps prior to the alleged assaults which he contended gave context to his belief (as asserted in his police interview) that all the sexual conduct was consensual; and

(iv) The applicant’s own good character and the account he gave in his police interview, which he said should have weighed in favour of a finding that his guilt was not proved beyond reasonable doubt.

The Court held, granting leave to appeal but dismissing the appeal, that:

Per Stern JA (Free JA and Rigg J agreeing):

(1) The applicant’s contentions were considered on the uncontroversial assumption that the evidence of CK was assessed by the jury to be credible and reliable and having regard to the material relied upon by the applicant on the appeal: at [52] (Stern JA); [61] (Free JA); [62]-[63] (Rigg J).

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; R v ZT [2025] HCA 9; 99 ALJR 676, applied.

(2) Having approached the evidence and the applicant’s submissions in that way, the Court had no reasonable doubt as to the applicant’s guilt, and was thus satisfied that it was open to the jury to be satisfied that the applicant was guilty beyond reasonable doubt of each of the six offences with which he was charged: at [52] (Stern JA); [61] (Free JA); [62]-[63] (Rigg J).

(3) Omissions from CK’s accounts that she gave in the days immediately following the offending did not undermine the credibility or reliability of her accounts. As CK explained in her evidence, her primary concern at that time was the nonconsensual anal sex that had caused her both pain and the most trauma. It was entirely understandable in that context that CK may have focussed upon this in her accounts shortly after the offending: at [56] (Stern JA); [61] (Free JA); [62]-[63] (Rigg J).

(4) Nothing about CK’s conduct before the offending undermined the credibility or reliability of her account or rendered the verdicts unreasonable. CK’s candid account of the messaging in advance of meeting the applicant showed that she did not seek to downplay matters that were not necessarily supportive of her account. There was no possible basis upon which those messages could be construed as being inconsistent with the complainant not having consented to the offending conduct or with the applicant not having known CK was consenting in the manner in which this element was explained to the jury by the trial judge for the six offences: at [57] (Stern JA); [61] (Free JA); [62]-[63] (Rigg J).

(5) The jury were entitled to reject the applicant’s account given in his police interview: at [58] (Stern JA); [61] (Free JA); [62]-[63] (Rigg J).

Per Stern JA (Free JA agreeing):

(6) Nothing about CK’s conduct after the offending undermined the credibility or reliability of her account or rendered the verdicts unreasonable. As has been repeatedly affirmed, the days of relying upon assumptions as to how victims of sexual offending would or should behave are long gone: at [57] (Stern JA); [61] (Free JA).

JUDGMENT

1. STERN JA: On 1 July 2024, a jury of twelve unanimously convicted the applicant, Steven Tanujaya, of six counts of sexual intercourse without consent, knowing that the complainant, CK, did not consent, contrary to s 61I of the Crimes Act 1900 (NSW). The offending occurred in the early hours of 11 September 2022 at CK’s apartment. CK was 18 years old at the time of the offending and had been diagnosed with autism spectrum disorder with low support needs. On 5 September 2022, the applicant and CK “matched on”, and subsequently communicated via, the dating app Tinder. Subsequently they also communicated via the apps Instagram and Snapchat. The two met up, by arrangement, on the evening of 10 September 2022. They bought a bottle of soju (an alcoholic beverage) and went to CK’s apartment at approximately 12.20 am on 11 September 2022. CK performed oral sex on the applicant (oral intercourse) consensually, and they had consensual penile-vaginal (vaginal) intercourse which was followed, on the Crown case, by six instances of non-consensual sexual intercourse, comprising three instances of penile-anal (anal) (counts 1, 4 and 6), one instance of oral (count 2) and two instances of vaginal (counts 3 and 5) intercourse, corresponding to the six offences of which the applicant was convicted. Whilst the offending comprised six separate offences, in reality there were two “rounds” of non-consensual sexual activity. The first involved anal sex followed by oral sex. The second involved what was described as “switching” four times between vaginal and anal sex.

2. The applicant did not give evidence at trial but an electronically recorded police interview with him on 3 December 2022 (shortly after his arrest on that day) was played to the jury. He did not dispute that two incidents of penile-vaginal intercourse and two incidents of penile-anal intercourse took place between him and CK on 11 September 2022, and that he choked and slapped her, but he said that CK consented to the sexual intercourse they engaged in that morning.

3. On 16 December 2024 the applicant was sentenced to a term of imprisonment of 3 years and 4 months, commencing on 2 October 2024 and ending on 1 February 2028, and a non-parole period of 20 months ending on 1 June 2026.

4. The applicant now appeals against his convictions on the basis that the six verdicts of guilty are unreasonable and cannot be supported having regard to the evidence. As this raises questions of mixed law and fact, under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) he requires leave to appeal.

5. For the reasons set out below, leave to appeal should be granted but the appeal should be dismissed.

The matters relied upon by the applicant in support of his grounds

6. The applicant contends that there are a number of aspects of the evidence which make the jury’s verdicts unreasonable.

7. First, and most significantly, he relies upon what he submits is an inconsistency between CK’s accounts shortly after the alleged offending and the evidence she gave at trial. In this regard, he relies upon the fact that CK gave separate accounts to Ms Darcey Gwynn-Jones (a friend whom CK worked with), to Ms Kym Fuller (the mother of CK’s ex-boyfriend), and to the police, in the period between 11 and 14 September 2022, but that on these three occasions, she complained of non-consensual anal sex, but not of non-consensual oral or vaginal intercourse, and that she complained of two (rather than three) instances of non-consensual anal intercourse. The applicant says that these inconsistencies are such that the jury should have had a reasonable doubt about the applicant’s guilt on all counts, consistent with the principles in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290.

8. Second, the applicant relies upon CK’s conduct after the alleged assaults, in particular the applicant having then kissed and given CK “very aggressive hickeys”, that they then watched YouTube, that she signed him out of her apartment building, that they had “a bit of a weird hug” when he left, that she messaged him on Snapchat the next day about him having left the bottle of soju at her apartment, and that she did not block him from her social media even after he messaged her on Snapchat and commented on one of her Instagram posts. The applicant says that this conduct is inconsistent with CK’s account of having been sexually assaulted by the applicant.

9. Third, the applicant submits that the communications between the applicant and CK on various apps prior to the alleged sexual assaults give context to the applicant’s belief (as asserted in his police interview) that all the sexual conduct between CK and the applicant in the early hours of 11 September 2022 was consensual.

10. Fourth, the applicant relies upon his own good character, and the account he gave in his police interview, which he says should have weighed in favour of a finding that his guilt was not proved beyond reasonable doubt.

11. The applicant does not, in this regard, rely upon any aspect of the manner in which CK gave evidence, and does not submit that this Court should consider a video of CK giving evidence when considering his ground of appeal.

Factual background

12. I have set out below the factual background to the offending by reference to the evidence before the jury. As regards her autism, in re-examination CK said that it did not affect her ability to communicate with the applicant, or the tone of her words, once she was engaged in sexual activity with him.

Prior to the offending

13. As I have already noted, CK and the applicant exchanged messages on Tinder, Instagram and Snapchat in the period 5 to 11 September 2022. This included flirtatious messages and sending each other intimate photographs: meaning for CK, photographs of her breasts, and for the applicant, photographs of his penis. CK gave evidence that she thought that the applicant wanted her to “dirty talk” and that she thought she said:

[S]omething that I feel like it’s sort of, like, my go-to, which is, like, you know, “Screw me until I cry”. That’s sort of something, like - like, happy cry, kind of thing. Like, it’s good.

14. She also said that they messaged about what kind of sex they liked and she messaged that she “liked it a bit more, like, rough”, “like, you know, thrown around a little bit”. She explained that this was “not violent”, it was “just someone being more dominant and taking charge”, just “leading”, not “being disrespectful or anything”. They did not talk about the specifics, or about whether or not the applicant would “lay hands on [CK] in a violent manner”. The applicant said he liked “face-fucking” which CK understood to mean him receiving oral sex. CK also said that she had said to the applicant “[t]reat me mean” in the context of “talking about dirty talk”, and she accepted she may have said “you could do whatever” but not that she had said that she “liked any type of sex”. She also agreed that they had had a conversation about how sex was usually better the second time. The applicant did not have copies of these messages as, on Snapchat, messages are not automatically saved. She was thus going from her memory in describing these messages.

The offending conduct

15. Having met up after CK finished work at around 11 pm on 10 September 2022, once back at CK’s apartment, where she lived alone, CK changed her clothes. Both CK and the applicant got into CK’s bed where they began watching a movie. After about eight minutes the applicant stopped the movie, the two started kissing, it got more intimate and CK took her clothes off and told the applicant to remove his clothes. CK agreed in cross-examination that the applicant told her that he wanted her to initiate things but denied that he had said “I won’t do anything unless you initiate”. CK then performed oral sex on the applicant and at some point the applicant became quite aggressive, really forcing her head down, which hurt. The two then began to have vaginal sex, with CK lying on her back, which was “fine until he brought his hands up and started choking [her], which was quite forceful as well”, and that he did so with both hands. CK said that she was shocked about this because they had never spoken about that, and that she thought that was a bit “weird”. The applicant then slapped her across her left cheek twice, which hurt, and again CK said that she was surprised as they had not spoken about “physical like aggression and that sort of sense of like choking or slapping”.

16. After that happened, CK and the applicant changed position, so CK was laying on the bed, face down, with her elbows and knees on the bed and the applicant was kneeling behind her. The applicant then asked CK if she had “ever done anal before” to which she replied “[n]o, and I don’t want to”. The applicant asked why and she said “because it hurts”. CK denied that the applicant asked her if she “want[ed] to try” or words along the lines of “[c]an we give it a shot”. He instead waited a moment then said “[w]e’re going to do anal” and “then he spat on [her anus] and forced [his penis] inside my anus.” CK said that when that occurred, she felt pain and she told him “[s]top. It hurts”. She said he was being very rough and she kept telling him to stop, saying that on more than one occasion. She explained that she was saying “[n]o, stop – it hurts” at a volume which he definitely would have heard, and that he was ignoring her. That was when she “started pleading”, asking him to “please stop”. At some point while she was asking him to stop, he had pushed her head into the pillow, when her voice would have been more muffled and that from that point she didn’t think she would have sounded very clear. She said, however, that her head was in the pillow for “not … a very long amount of time compared to when it wasn’t”.

17. After they had been doing that for “quite some time” the applicant stopped, removed his penis, told CK to “[m]ake me come” and, still kneeling, grabbed CK who had turned around and moved her face to his penis. After a very short time with his hands pushing her head to his penis he ejaculated into her mouth. She could not speak during this and was “kind of just exhausted”. In cross-examination, CK denied that the applicant stopped when she initially asked him to.

18. This was the conduct charged as counts 1 and 2, the first “round” of non-consensual sexual activity.

19. After this the applicant lay down on the bed and CK, who was really sore, was relieved, thinking “it’s over”. She then saw that the applicant was touching himself so she was “trying to pretend to be sleepy” because she “didn’t want a second round” of sexual activity. She said she was physically exhausted and “wanted an excuse to not continue”. The applicant then moved himself between CK’s legs and was moving her body into position for sexual intercourse. She said “[n]o. I’m tired. Like, I’m too sleepy” at a pretty moderate tone. Notwithstanding this, the applicant inserted his penis into CK’s vagina. He then took his penis out of her vagina, rolled her over so she was facing downwards, flipping her over by the knees, and then said “I’m going to put it in your arse again”. In response she kept telling him to stop because it hurt, saying it a little bit louder, just above moderate volume, because her head was facing the pillow and he was ignoring her. She said this multiple times. He then rolled her over again and said “[y]ou look cute when you’re in pain”, asked her “[o]h, are you going to cry?”, then told her to be a good girl. She felt like he was taunting her. CK denied that the applicant told her she looked cute when she was in pain during the choking.

20. CK was in pain, was trying not to cry, and did not say anything in response to the applicant saying to her “[o]h, are you going to cry?” and telling her to be a good girl. The applicant then rolled her back over, with her elbows and knees on the bed, and changed to vaginal intercourse, repeating himself saying “pleasure and pain”. He then went back to anal intercourse. The applicant was silent at this point and trying not to cry. She said it was very painful and she “still just sort of told him, like, to stop because it – it – it hurts”. He then ejaculated in her anus and she went a bit limp and fell onto the bed.

21. This was the conduct charged as counts 3 to 6, the second “round” of non-consensual sexual activity.

22. The applicant’s account in his police interview on 3 December 2022 was that before he choked CK he asked her if she liked having someone choke her and she was like “[y]eah, yeah, yeah, yeah. Uh, I got choke before”. He also said that before the anal intercourse he asked her if she had “tried doing anal” before and could not remember what she said but he said that she was “indicating, like, Yeah, uh, yeah, but do it slowly”. When asked if he had asked this before having anal sex he said:

I don’t remember, but I always ask that kind of question.

23. He explained that since he has “a rough nature” he did it a bit faster to which she said “[a]h, too fast, too fast” and asked him to stop, after which he stopped. When asked if CK had told him it was hurting, the applicant agreed that she had and that that was why he stopped. When asked if CK had told him to stop, yelling this continuously for five minutes, begging him to please stop but he ignored her, the applicant said that he did not think it was that long, she was telling him to stop “once or twice” over a matter of a few seconds, not five minutes. He did not remember if he had ejaculated in her anus or in her mouth. He said that two to three minutes later he asked if she was okay and if he could do it again. He later said that they then had vaginal intercourse again, after which he asked if he could “do it again”, referring to anal sex and she said “[y]eah, yeah, of course”. He also said that the reason they stopped was because she told him that she was tired. When it was put to the applicant that he kept having anal sex with CK he said that “the only thing I can tell you, like, logically, uh, after the first ejaculation, for guys it’s kind of hard for them … to get a … hard-on again”. He also agreed he said to CK that she looked cute when she was in pain, but that he did not know whether she was in pain.

After the offending

24. CK said that after the offending she went a bit limp and laid there, kind of confused and just in shock. She was also in pain. CK got up from the bed and texted Darcey Gwynn-Jones, who knew CK was going to meet up with the applicant that night:

Darcey… this was such a traumatising experience.

25. When Ms Gwynn-Jones asked whether it was nice, CK replied “[l]owkey no”.

26. CK said that she started putting her clothes on and was afraid because the applicant was still in her room and she thought if she put her clothes on it felt like a bit of a safety net. She went back to the bed, lying next to the applicant, which she explained on the basis that she was confused and scared of the applicant at that point, and was trying to act a bit normal. He put on some of his clothes. He then kissed her on the neck and gave her very aggressive hickeys on her neck, which was painful, and during which time she lay there, very stiff. After this the applicant got his phone out and looked at bus times and CK put some YouTube on her laptop. Sometime later they left the apartment, CK signed the applicant out at the front desk, she gave him a “bit of a weird hug” and he left. CK explained she did this because she had been raised to show affection even if you are uncomfortable.

CK’s accounts shortly after the offending occurred

27. After that, at 2.32 am, CK messaged Ms Gwynn-Jones on Instagram telling her that the applicant just “[d]id some stuff” and “wouldn’t listen to me when I’d tell him not to do something or to stop”. She messaged that she felt like she was going to cry, that she “just hurt” and was “in like physical pain”. Ms Gwynn-Jones said that she would come over. She got to CK’s apartment shortly before 3 am. CK agreed that she spoke with Ms Gwynn-Jones about what had just happened but she did not recall the details. She gave evidence that at that time she was “distraught”.

28. Ms Gwynn-Jones’ evidence was that she spent about two hours with CK in her apartment, she believed CK was in a state of shock and that when explaining what had happened CK was “kind of scrambled”, “kind of losing track a lot about other details” that had nothing to do with the situation. CK told her that she had said no to anal sex but that the applicant had proceeded to engage in anal intercourse. She said CK was very brief in explaining what had actually happened. CK told her that she pretended to be asleep after the first instance of anal intercourse but that “it happened a second time” and for the second time “she was mostly just disassociated, not really reacting”.

29. The following exchange occurred in the cross-examination of Ms Gwynn-Jones:

Q. I understand what you’re saying. It’s the case, isn’t it, Ms Gwynn-Jones, that what [CK] described to you specifically was two instances of anal sex that she said were without her consent. That’s right, isn’t it.

A. Yes.

Q. She didn’t mention to you, did she, any non-consensual vaginal sex that she had with Steven.

A. She’d made it clear that it had started consensual with vaginal sex. It was the anal sex that was un-consensual.

Q. She didn’t tell you about any oral sex, did she.

A. Not that I can recall. She more just referred to how it started being consensual and that there was--

Q. Yes, but you don’t recall her mentioning oral sex as a specific act.

A. No.

30. CK agreed in cross-examination that she didn’t think that she told Ms Gwynn-Jones about any forced oral sex with the applicant, but she said that she definitely did not say that it was consensual. CK also said that her primary focus when speaking with Ms Gwynn-Jones (and later to Ms Fuller) was not vaginal sex with the applicant. In re-examination, CK said that her primary focus, or main concern, when speaking with Ms Gwynn-Jones (and Ms Fuller) shortly after the offending conduct was “the anal sex that had occurred” because, although the vaginal sex was nonconsensual and it hurt, the anal sex caused a lot of pain and was the most traumatising part of it.

31. CK said that Ms Gwynn-Jones had said she would be happy to take CK to the hospital and to the police station if she “wanted to go further with it” but CK said in evidence that she “was distraught and just wasn’t really having a lot of it”.

32. CK and Ms Gwynn-Jones then went to Royal Prince Alfred Hospital (RPAH) at 5 am. According to an agreed statement of facts, at RPAH, CK was seen by Dr Jennifer Martinez in the Sexual Assault Service where CK was referred after presenting to the Emergency Department. Dr Martinez noted multiple hickeys on CK’s neck, and two abrasions in the perianal area, which is between the anus and the vagina. Dr Martinez noted that a possible cause of these could be anal sex although there could be other possible causes. Dr Martinez could not express an opinion whether the abrasions were from consensual or non-consensual intercourse. CK also reported to Dr Martinez that a non-fatal strangulation had occurred, Dr Martinez did not observe injuries from this, which she did not consider to be an unexpected finding. CK declined to take part in the more comprehensive examination involved in a Sexual Assault Investigation Kit which would have required taking swabs from different body parts. After leaving RPAH, Ms Gwynn-Jones said CK did not want to return to her apartment, so they went to Ms Gwynn-Jones’ apartment as CK was exhausted.

33. Also on 11 September 2022, CK spoke on the phone to Ms Fuller (who took the phone when CK had called her ex-boyfriend, Ms Fuller’s son, and Ms Fuller overheard what CK had said). Ms Fuller said CK was crying a lot and was quite incomprehensible. They arranged to meet on 13 September 2022.

34. After she came back from Ms Gwynn-Jones’ house, CK messaged the applicant on Snapchat “[y]ou left your soju here, silly”, which she said was because she did not want the soju in her apartment. The applicant responded that she could keep it.

35. CK met with Ms Fuller for about four hours on 13 September 2022. Ms Fuller encouraged CK strongly to talk to the police. Ms Fuller’s account was that CK told her that she had had consensual sex with the applicant and:

Then he had turned to her afterward and said, had she ever had anal sex, and she said no, that she hadn’t. She said that he then said, “You’re about to,” and she said, “No, I’m afraid it will hurt,” and he – she said that he then just turned her over and forced himself into her anally. She said, after that, she was quite just shocked, I guess, and so she wanted him to leave, but - so she just rolled over and pretended to sleep.

She said that she thought if he thought she was sleeping that he would just leave. And - but then she said while she was laying there with her back to him, she could feel him, like, touching himself, trying to make himself hard again, and so she became a bit concerned about what was potentially about to happen again. He - well, she said that he rolled her back on - onto her back and sort of, I guess, climbed on top of her and started to choke her. And she was quite distressed then, and he - she said that he said, “You look pretty when you’re scared.” … and then she said that she was just - her body just went quite limp at that - throughout this happening. And then he - she said that he - she was saying, “No. Like, please, like, stop, like” - he then just essentially turned her over and positioned her with her sort of bottom, I guess, in the – in the air, and inserted himself into her anus again. And then after that, she said he - she rolled over again, just pretended to be asleep, and he eventually left.

36. Ms Fuller said that CK did not mention oral sex or non-consensual vaginal sex. The following exchange occurred in cross-examination of Ms Fuller:

Q. Just to be clear, the only incidents that she described to you apart from the consensual sex were two instances of anal intercourse that she said were without her consent?

A. That’s my memory of - there was definitely one case of anal. Whether the other was anal or vaginal - vaginal--

Q. You said in your evidence earlier it was anal.

A. There was definitely two cases, and it’s both anal that my memory – my memory of it but--

37. In cross-examination CK said that she didn’t go very deep into detail with Ms Fuller because she was uncomfortable speaking about it, and that there were discussions on generalisations but “not specifications”. She also said that the non-consensual oral sex was not the main cause of concern, “[i]t was, like, the entire incident”.

38. CK made a report to the police at about 3 pm on 14 September 2022 and at about 7 pm that evening Detective Senior Constable Paige Roberts (DSC Roberts), together with a male police officer Senior Constable Colin Farmilo (SC Farmilo), met with CK for about half an hour at Ms Gwynn-Jones’ house. CK said that she felt comfortable around DSC Roberts but it was “quite uncomfortable” with a male in the room and that it was very hard to communicate because the incident itself made it difficult to speak about and there were multiple people in the room all watching her. DSC Roberts, who made notes in her official police notebook that evening, said that at times CK became visibly upset, crying and she “didn’t press her too much”. She explained that this was “just her first disclosure to me about what had happened”, and she wanted to obtain a version as to what had happened to work out next steps in the investigation but it was not an extended detailed account and she did not ask clarifying questions or for further detail. The following day DSC Roberts took a typed statement from CK at the police station over 3-4 hours during which period it was largely just the two of them.

39. DSC Roberts was asked some questions about what she had recorded in her notebook on 14 September 2022. She agreed that the only two acts which she had recorded as non-consensual acts were two instances of anal intercourse and that she would have noted any other specific acts of sexual intercourse if the complainant had told her of them. In cross-examination, the following exchange took place:

Q. I’m going to suggest to you that the complainant did not tell you that anything else - putting aside the choking and the slapping, did not tell you that anything else that had occurred was non-consensual at the time that you made these notes?

A. At this point in time, I said to the complainant, “Can you tell me what’s happened?” She ran - she ran me through a version. I made as many notes as I could. It wasn’t a situation where I was asking her probing questions or going back and forth over what had occurred. I was - I was asking - it was just her first disclosure to me about what had happened. I - I didn’t ask for any further - or too many further details. We were just trying to establish if an offence had been committed, and then our next steps of the investigation. So I - I - this is the version she provided me. I did not ask any further questions to clarify certain acts or positions, or ask any clarifying questions, or for further detail.

Q. I understand. But it’s also the case, isn’t it, that she did not tell you about any other specific acts of sexual intercourse, or you would have noted them down in your notebook?

A. Correct.

40. DSC Roberts had recorded in her notebook that CK told her that the applicant had said to CK “[w]e’re going to go a second round” and that, in relation to that second round, CK had mentioned that they were “switching between anal sex and then vaginal intercourse”.

41. SC Farmilo also gave evidence. He had not taken notes on 14 September 2022 but had prepared a statement on 15 May 2024 which was not based on any contemporaneous notes that he had made. He said that he “wouldn’t be able to recall the exact details” of what CK was asked but said that he would be “confident in saying” that the line of questioning would be to ask about details of the activities and what was consensual or not. He could not recall if he had asked any questions himself. He was taken to his statement where he had said that CK had provided him and DSC Roberts with a “detailed version of events” and he agreed that that accorded with his recollection and that she was given an opportunity to talk about what had happened and to go through the different sexual activities that had occurred and whether they were consensual or non-consensual.

42. DSC Roberts had sent a text message to CK on 5 October 2022 asking CK to contact her, to which CK did not respond, then called CK on 7 October 2022 after which CK had texted that she would call back after university, but CK did not call. On 12 and 18 October 2022 DSC Roberts called CK with no answer and then on 20 October 2022 DSC Roberts went to CK’s apartment and met with her.

Character witnesses in the applicant’s case

43. Ms Janice Christie Budiman, a past sexual partner of the applicant, gave evidence that during her relationship with the applicant they never had intercourse because she was not comfortable with that. She said that when she heard the allegations against the applicant she was really shocked because the applicant is really respectful and likes to take care of people and the allegations are really out of character for him. She said he was always compliant with her boundaries and was really respectful and took care of her.

44. The applicant’s former manager at work, Mr Benson Vandecasteele gave evidence that the allegations against the applicant were entirely out of character and he was a decent, respectful, polite young man.

The trial judge’s directions to the jury

45. No complaint is made about the trial judge’s directions to the jury.

46. As would be expected, the trial judge directed the jury as to the burden and standard of proof and that they could bring in different verdicts on the different counts if there was a logical reason for that outcome. He directed the jury that they had to “look very closely at [CK’s] evidence” to be “satisfied that it is credible; that is truthful and reliable”, as the Crown case relied “solely or principally” on her evidence. The jury was directed to take a common sense approach to the assessment of credibility, which reflects their life experience. They were directed that it was up to them “to decide whether any differences in [CK’s] accounts [were] important in assessing [her] truthfulness and reliability”. The jury was also directed that it was important to bear in mind that the account given by the applicant was an out-of-court account, and that what weight to give to that account was a matter for them.

47. As to consent, the jury was told that the Crown case as to consent was:

48. As to count 1, that the applicant knew CK did not consent because she said “no”;

49. As to counts 3 and 4, that the applicant either knew or was reckless as to whether CK consented to those sexual acts, being those involved in “the second round of activity”; and

50. As to counts 2, 5 and 6, that the applicant was reckless as to whether CK consented or, even if he thought at the time that she consented, that was not a reasonable belief to hold at that time because he did not say or do anything to determine if CK consented.

Relevant principles

48. As was settled by the High Court in M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63, the task for an appellate court considering an appeal on the ground that a conviction is unreasonable or cannot be supported having regard to the evidence is to ask itself “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”. Having regard to the constitutional role of the jury as the body entrusted with the primary responsibility of determining guilt or innocence the appellate court must not disregard or discount the role of the jury or that the jury has had “the benefit of having seen and heard the witnesses”: M v The Queen at 493. The Court added, at 494-495, that:

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. 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.

49. Not every discrepancy or inconsistency in evidence could lead to such a doubt. Rather, as explained in M v The Queen at 494:

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.

(Citation omitted.)

50. More recently, in R v ZT [2025] HCA 9; 99 ALJR 676 at [9]-[12] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ), the High Court emphasised three aspects of M v The Queen. First, that the jury’s advantages may extend to all of the evidence adduced at trial. Second, an appellate court is required to give “full allowance” to the advantages of the jury in seeing and hearing the evidence when considering whether those advantages may resolve any doubt the appellate court holds as to an appellant’s guilt. Third, the assessment of the sufficiency and quality of the whole of the evidence that is required of the appellate court (at [11]-[12]):

[I]s undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties' respective cases at the trial. … [I]t is for the parties to place all evidentiary material and submissions before the appellate court which they consider relevant to the discharge of the court's function and it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not.

(Citations omitted.)

51. It is also now settled that where it is claimed on appeal that a guilty verdict on a charge of sexual assault is unreasonable, it is not helpful to invite the Court to make assumptions as to how a victim of sexual assault might behave in given circumstances and in gauging how a victim of sexual assault might behave towards the perpetrator: see the cases extracted by N Adams J in Harper v R [2022] NSWCCA 211 at [184]-[191].

Consideration

52. My consideration of the applicant’s contentions proceeds on the uncontroversial assumption that the evidence of CK was assessed by the jury to be credible and reliable: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]. Also, consistent with the guidance in R v ZT, as set out above, I have approached the applicant’s contention that the verdicts were unreasonable having regard to the material relied upon by the applicant. I have, however, considered this material in the context of my review of the evidence as a whole. Having approached the evidence and the applicant’s submissions in that way, I have no reasonable doubt as to the applicant’s guilt. I am thus satisfied that it was open to the jury to be satisfied that he was guilty beyond reasonable doubt of each of the six offences with which he was charged.

53. This is so for a number of reasons.

54. First, CK gave clear and cogent evidence which was detailed and in significant respects was entirely consistent with the accounts she is said to have given to Ms Gwynn-Jones, Ms Fuller and DSC Roberts in the days immediately following the offending. That there were two separate “rounds” of sexual activity was explained to Ms Gwynn-Jones, Ms Fuller and DSC Roberts. The fact that CK said “no” to anal sex but the applicant proceeded to perform this regardless, the pain and trauma this occasioned, and CK then pretending to be asleep to avoid further intercourse which occurred regardless, were also features of CK’s accounts to each of Ms Gwynn-Jones, Ms Fuller and DSC Roberts. It was also recorded in DSC Roberts’ notebook that the second “round” of intercourse involved “switching” between anal and vaginal intercourse, which is entirely consistent with CK’s account in her evidence at the trial.

55. Second, I agree with the Crown’s submission that there are aspects of CK’s account that suggest that she was telling the truth and was not exaggerating. CK did not shy away from evidence which may have been adverse to her interests, such as having sent explicit photographs to the applicant prior to meeting him, having told the applicant that she liked rough sex, having consented to the initial penile-vaginal sexual intercourse and not having said “no” when the applicant choked and slapped her.

56. Third, the omissions from CK’s accounts to Ms Gwynn-Jones, Ms Fuller and DSC Roberts do not undermine the credibility or reliability of her accounts. As CK explained in her evidence, her primary concern in the days following the offending was the nonconsensual anal sex that caused her both pain and the most trauma. It is entirely understandable in that context that CK may have focussed upon this, and not the nonconsensual oral or vaginal sex, in her accounts shortly after the offending. Further, CK’s account of the offending to Ms Gwynn-Jones was very brief, she explained that she was uncomfortable going into detail with Ms Fuller and also said that it was hard to discuss the offending in the presence of SC Farmilo. Whilst SC Farmilo, in his statement given on 15 May 2024, described the account given by CK to the police on 14 September 2022 as “detailed”, and he confirmed in his oral evidence that this was his recollection, the jury were fully entitled to give greater weight to the evidence of DSC Roberts as to the purpose and character of the interactions between her and CK on 14 September 2022.

57. Fourth, nothing about CK’s conduct before or after the offending undermined the credibility or reliability of her account or rendered the verdicts unreasonable. As I have already noted, CK’s candid account of the messaging in advance of meeting the applicant shows that she did not seek to downplay matters that were not necessarily supportive of her account. There is also no possible basis upon which messaging with explicit photographs or references to “rough sex” could be construed as being inconsistent with the complainant not having consented to the offending conduct or with the applicant having known that CK was not consenting, or being reckless as to consent, in the manner in which this element was explained to the jury by the trial judge for each of the six offences. Nor, consistent with the authorities set out above, does the way in which CK conducted herself towards the applicant after the offending in any way undermine the credibility or reliability of CK’s account. As has been repeatedly affirmed, the days of relying upon assumptions as to how victims of sexual offending would or should behave are long gone.

58. Fifth, on an assessment of the evidence as a whole, the jury was entitled to reject the applicant’s account given in his police interview on 3 December 2022. That account had to be weighed against the account of CK, which for the reasons set out above was supported by the evidence of Ms Gwynn-Jones, Ms Fuller and DSC Roberts.

59. Had I had a reasonable doubt as to the applicant’s guilt on any of the six offences, this is a case in which the jury’s very significant advantage in having seen and heard the evidence would have been well capable of resolving that doubt. For the reasons set out above, this is a not a case where inconsistencies in CK’s evidence are such as to necessarily undermine the reliability of her evidence. CK gave evidence via AVL over four days. She was cross-examined at length. In this case the jury’s advantages are significant. They jury was able to see and hear the witnesses, most particularly CK, give evidence. Those advantages are, in this case, sufficient to resolve any doubt as to the applicant’s guilt.

Conclusion

60. Having regard to the matters set out above, whilst I would grant leave to appeal, the appeal should be dismissed.

61. FREE JA: I agree with Stern JA.

62. RIGG J: I have had the considerable advantage of reading the judgment of Stern JA. I am grateful for her Honour’s analysis of the evidence and directions at trial, submissions on appeal, and relevant legal principles. I agree with the orders proposed by her Honour.

63. Having undertaken my own assessment of the evidence, I am of the view that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the six offences for which he was convicted. I agree with the analysis undertaken by Stern JA of the impact of the consistencies and inconsistencies in the representations of the complainant to others in the first few days after her contact with the applicant, compared with her evidence at trial. On the whole of the evidence in this case, I am not of the view that the conduct of the complainant after the alleged offending renders the verdict unreasonable.

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