HEADNOTE
[This headnote is not to be read as part of the judgment]
On 26 February 2022, the complainant (who was 19 years old) attended the Albion Hotel in Parramatta (the hotel) with her friend, SD. Matthew Tuuholoaki (the applicant) was working as a security guard at the hotel that evening. The complainant consumed several alcoholic drinks and gave evidence that she felt increasingly intoxicated over the course of the night.
When she was on the dance floor, the complainant got into an altercation with another woman and was removed from the hotel by security. Once outside, CCTV footage showed the complainant arguing with security and the other woman. The applicant held her back before ushering her down the street, away from the hotel, where she became separated from SD, who was accompanied by another guard.
The complainant's evidence was that she felt extremely drunk and the applicant took her behind an electricity box on the street, started to kiss her and attempted to have (count 1) and did have (count 3) penile-vaginal intercourse with her. The complainant also gave evidence that she thought she gave him oral sex (count 2). After, the applicant gave the complainant a $50 note and they went back to the hotel where the complainant told SD, her friend Joshua and the hotel security what had happened. The police were called and the complainant showed them where the offending occurred, underwent a forensic examination and gave a formal statement the next day.
The applicant's version was that the complainant started kissing him and did not appear intoxicated, and that he did not know that she was not consenting to sexual intercourse.
The applicant was charged and, following a trial by jury over which Herbert DCJ (the trial judge) presided, ultimately convicted of counts 1 and 3 and acquitted of count 2. He was sentenced to an aggregate sentence of 2 years and 7 months imprisonment.
The applicant sought leave to appeal against his convictions of counts 1 and 3 on the grounds that:
(1) the verdicts were unreasonable and could not be supported by the evidence; and
(2) a miscarriage of justice was caused by the trial judge's directions to the jury on how the Crown could prove inadvertent recklessness.
In support of ground 1, the applicant submitted that significant issues undermined the complainant's credibility and reliability such that the Crown could not exclude the applicant's version as a reasonable possibility, and even if the applicant's version was rejected, there was reasonable doubt as to whether the Crown had proved the elements of the offences.
In ground 2, the applicant challenged the trial judge's direction as to proof of his knowledge that the complainant was not consenting to sexual intercourse pursuant to s 61HE(3) of the Crimes Act 1900 (NSW). The applicant submitted, in relation to proof of knowledge by being reckless as to whether the complainant consented, that there was a distinction between advertent and inadvertent recklessness and that the trial judge's direction erroneously invited the jury to convict him on a purely inadvertent state of mind (that he did not even think about whether the complainant consented).
The Court held (Adamson JA, Wilson and Faulkner JJ agreeing), granting leave to appeal on ground 1 but dismissing that ground and refusing leave to appeal on ground 2:
Ground 1: alleged unreasonable verdict
(1) Having reviewed all of the evidence, it was open to the jury to find the applicant guilty of counts 1 and 3. There is no doubt of his guilt on these counts: at [242] (Adamson JA).
(2) It was open to the jury to accept the complainant's version that she felt intoxicated and that her fears when she was alone with the applicant deprived her of her powers of overt resistance. It was open to the jury to reject the applicant's version as not reasonably possible, given the significant inconsistencies in his evidence: at [229]-[232], [234], [237] (Adamson JA).
(3) The complainant's evidence of counts 1 and 3 was cogent and consistent with the circumstances. Her description of what occurred was credible and corroborated by the forensic examination, her evident distress when she returned to the hotel, her immediate complaint to those at the hotel and her account to police that evening. None of the matters raised by the applicant was sufficient to gainsay the jury's assessment of the complainant as a witness of truth as to the elements of the offence: at [237], [239]-[240] (Adamson JA).
Ground 2: alleged misdirection concerning consent
(4) Leave to appeal on ground 2 ought be refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW): at [276] (Adamson JA).
(5) A jury must be directed that recklessness is subjective, in that it requires consideration of what was in the accused's mind at the time of the offending. The relevant distinction is not between advertent and inadvertent recklessness, but between subjective and objective recklessness: at [267] (Adamson JA).
Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80, applied.
(6) The trial judge's task when directing a jury is to explain as simply as possible so much of the law as the jury needs to know to decide the case before them. In comparison, in an appellate court's consideration of an area of substantive law in the course of its reasons for judgment, the court has room to draw and explore distinctions, such as that between advertent and inadvertent recklessness. It is not necessary and may be detrimental to trouble a jury with this distinction: at [275] (Adamson JA).
La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52, applied.
R v Kitchener (1993) 29 NSWLR 696; R v Tolmie (1995) 37 NSWLR 660; Lee v R [2023] NSWCCA 203, considered.