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[2025] ACTCA 34
respondent. The appeal was dismissed. The Court held that the appellant had not established that the jury's verdict on count 2 was unreasonable or could not be supported having regard to the evidence.
The Court of Appeal dismissed Umunakwe's challenge to his conviction on count 2. It accepted that CCTV footage showed the complainant did not remember some interactions with him earlier in the night. But the footage did not show what happened in the One22 toilet cubicle and did not directly contradict her account of the count 2 conduct. The Court considered her evidence about repeatedly saying 'stop' and crying, her immediate complaint and distressed presentation, her concessions, and the jury's opportunity to assess her evidence. It concluded that the jury could reasonably accept her account and find the appellant guilty. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
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In Umunakwe v DPP [2025] ACTCA 34, the ACT Court of Appeal considered a single ground of appeal against a jury conviction for sexual intercourse without consent. The appellant, Emmanuel Umunakwe, was convicted on count 2 under s 54(1) of the Crimes Act 1900 (ACT). The jury acquitted him on counts 1 and 3, which were also charged under that provision ([1]–[3]).
The appeal was brought under s 37O(2)(a)(i) of the Supreme Court Act 1933 (ACT). The appellant argued that the count 2 verdict was unreasonable or could not be supported by the evidence. The centre of that argument was the complainant's reliability. The appellant pointed to differences between her recollection and objective evidence, particularly agreed facts largely drawn from CCTV footage at Mooseheads ([74]–[80]).
The footage showed that the complainant and appellant had a brief interaction involving his mobile phone, and later danced and kissed at Mooseheads. The complainant did not recall some of those events when giving evidence. There was, however, no CCTV footage of their interaction inside the One22 toilet cubicle, and no eyewitness evidence of what happened there ([18], [82]).
The Court dismissed the appeal. It concluded that the pre-incident discrepancies did not require a reasonable doubt about the complainant's account of count 2. Her evidence about that count was that she repeatedly told the appellant to stop, tried to get away and cried. The Court considered that evidence alongside her immediate complaint, her demeanour afterwards, the jury's opportunity to assess her and the complete evidentiary record ([112]–[120], [134]–[138]).
The Court applied the established test for an unreasonable-verdict appeal. It had to assess the evidence independently and decide whether it was sufficient in nature and quality to permit a rational jury to find guilt beyond reasonable doubt. The jury's advantage in seeing and hearing the witnesses had to be given proper, or “full”, allowance. Setting aside a jury verdict is a “serious step” ([6], [8]–[10]).
For a case turning on a single witness, the appellate court proceeds on the basis that the jury accepted that witness as credible and reliable. The question is whether, despite that assessment, inconsistencies, discrepancies or other evidence meant the jury ought nonetheless to have had a reasonable doubt ([7]). The Court did not treat the complainant's memory as flawless. Rather, it asked whether the errors the appellant identified undermined the essential part of her account.
The Court found that the CCTV evidence revealed inaccuracies about events before the One22 bathroom interaction, but did not directly address the accuracy of her account of what occurred inside the cubicle. The footage did not show that interaction, and there was no eyewitness account of it ([82]). The absence of the complainant having been shown the footage also meant the jury did not hear her explanation when confronted with it. The Court noted that circumstance but did not decide the separate legal question about whether the footage should have been put to her in cross-examination ([83], [137]).
The Court examined the first kiss at Mooseheads closely. It accepted that the footage showed the complainant participating in the kiss, including putting an arm around the appellant's neck. But her evidence acknowledged that she probably kissed him back. The Court found that describing the kiss as “random” was not necessarily inaccurate: the footage showed the appellant move close to her and kiss her shortly after touching her arm, with little lead-up. The kiss ended when a friend touched the complainant's arm and she pulled away ([93]–[103]). The Court emphasised that this kiss was relevant to the accuracy of her recollection, not as evidence that she consented to later sexual activity. The appellant's counsel had expressly disclaimed that inference ([81]).
The Court also considered the complainant's drinking and the chronology. The evidence placed her highest level of intoxication at Molly's Bar, before the events at issue. She said that by the later visit to One22 she did not feel “super drunk” ([87]–[92]). The Court regarded intoxication as relevant to her recall of the evening, but did not treat it as automatically discrediting her account.
A further consideration was the difference in importance between routine social interactions and the events the complainant described as shocking, painful and frightening. The Court considered it consistent with human experience that someone might remember a surprising kiss and later serious conduct while not retaining details of ordinary dancing and socialising. It also referred to the trial judge's direction that jurors could consider whether some kinds of events are more lasting in memory than others ([122]–[127]).
The evidence after the bathroom interaction mattered. The complainant told Ms L, a stranger, that she had been raped, and was crying hysterically. Ms G described her as panicking and unable to get her words out. Her account was repeated to others without substantial alteration. The Court regarded this evidence as supporting her account on the important issue of lack of consent ([109]–[120]). It also noted that the defence had not substantially disputed that penile-vaginal intercourse occurred. The main issues included consent and the appellant's state of mind ([111]–[115]).
The verdicts on the three counts could also be understood as reflecting different evidence about consent and the appellant's possible belief. The Court adopted the sentencing judge's analysis that the jury might have had a reasonable doubt about the appellant's knowledge or belief during count 1, when the complainant had not said anything further after refusing oral sex, but could reject an honest belief during count 2, when she said she repeatedly told him to stop, tried to get away and cried ([116]–[118]). This was part of the Court's explanation for why the split verdicts did not themselves undermine the count 2 conviction.
The judgment describes the governing approach as “well established”, not as a new test ([6]). It relies on the High Court's decision in M v The Queen and subsequent authority, including Pell v The Queen, R v Baden-Clay and The King v ZT. The basic task is an independent appellate assessment of the whole evidence, while recognising that the jury has primary responsibility for deciding guilt and may have advantages unavailable on appeal ([6]–[10]).
The decision applies that test to a particular kind of challenge: an argument that discrepancies in a complainant's recollection of surrounding events make the complainant's evidence about the charged conduct unreliable. It reinforces that appellate scrutiny is not confined to asking whether a witness made errors. The relevant question is whether those errors, cumulatively and in context, required a rational jury to have a reasonable doubt ([84]–[86], [130]–[135]).
The judgment also reiterates that corroboration of a complainant in a sexual offence prosecution is not required for a finding of guilt. It cites Incandela v The Queen and Garay v The Queen (No 3) on that point. In this case, the Court additionally identified evidence that supported the complainant's account, including her immediate complaint and contemporaneous presentation ([109]–[120]).
The judgment does not change the legal test for consent or set out a new rule about memory or intoxication. Its reasoning is evidentiary and appellate: the significance of inconsistencies depends on what they concern, their relationship to the critical disputed events, and the whole evidence. Nor did the Court decide whether s 43 of the Evidence Act 2011 (ACT) required the CCTV footage to be put to the complainant. It expressly left that question unresolved because the appeal could be decided without it ([137]).
At [7], the Court states that the appellate function proceeds on the assumption that the jury assessed the complainant as credible and reliable, then asks whether the rest of the record nevertheless required a reasonable doubt. In plain English, the appeal court does not simply retry the witness's credibility from a transcript. It tests whether the verdict can stand even taking the jury's assessment as its starting point.
At [10], the Court says the appellant must show that the identified inadequacies meant a reasonable jury “ought to have entertained a reasonable doubt”, notwithstanding the jury's advantage. “Ought” is important: it is not enough to show that an appeal court might have reached a different view.
At [82], the Court distinguishes the CCTV from evidence of the charged conduct. The footage showed earlier interactions but did not depict anything inside the One22 cubicle. In plain English, the footage could bear on recollection and reliability, but did not itself establish what occurred during count 2.
At [97]–[103], the Court explains why the complainant's description of the first kiss as “random” was not necessarily inconsistent with the footage. The kiss appeared to be initiated quickly and without substantial lead-up. The Court also found that a brief earlier interaction involving a phone did not necessarily make the appellant other than “random” in the complainant's recollection.
At [120], the Court describes the complaint and contemporaneous presentation as “substantial, compelling and corroborated by CCTV footage and eyewitnesses”. The cited support concerned what happened after the complainant left One22 and how she presented, not direct observation of the conduct in the cubicle.
At [135], the Court gives its ultimate conclusion: the appellant had not established that the verdict was unreasonable or unsupported by the evidence. The order at [138] was that the appeal be dismissed.
The judgment is most directly relevant to appeals against a jury conviction where the appellant argues that a complainant's evidence was too unreliable to support the verdict. It is especially pertinent where the prosecution case depends substantially on one witness and the appeal points to discrepancies between that witness's recollection and objective evidence, such as CCTV or agreed facts ([7], [74]–[80]).
It is also relevant where the inconsistencies concern surrounding events rather than direct evidence of the charged conduct. Here, the CCTV showed social interactions before the One22 bathroom events, but did not show the events inside the toilet cubicle. The Court treated that distinction as important when assessing what the footage could and could not establish ([82]).
The reasoning may also assist in understanding the treatment of incomplete memories where alcohol was consumed and the witness recalled emotionally significant events more clearly than routine social activity. The Court did not say that intoxication resolves a reliability question. It treated intoxication, the timing and nature of remembered events, concessions made by the witness and the whole record as considerations for the jury and the appellate court ([87]–[92], [122]–[128]).
The case also illustrates that a difference between verdicts on multiple counts need not, without more, invalidate a conviction on one count. The Court accepted an explanation based on differences in the complainant's evidence about what was said and done during each alleged act ([116]–[118]). The decision does not establish that every such distinction will be sufficient; its conclusion was tied to the evidence and the single appeal ground before it.
The supplied judgment contains no decisions made after Umunakwe and does not report how later courts have treated it. Any account of subsequent treatment would therefore go beyond the materials provided.
The judgment itself draws on earlier authorities. It follows the approach summarised in Marshall v The King and relies on M v The Queen for the appellate test. It applies Pell v The Queen on the function of an appellate court in a single-witness case, while distinguishing the evidentiary setting in Pell by noting that independent evidence supported the complainant's account in this case ([6]–[7], [133]).
It also applies the emphasis in R v Baden-Clay and The King v ZT on the jury's advantage and the need to give that advantage full allowance ([8]–[10]). For assessing discrepancies cumulatively, it cites MFA v The Queen ([131]). Its reference to Hudson v DPP supports the observation that memory is not a recording device that accurately preserves every event in sequence ([129]).
These are the authorities as used by the ACT Court of Appeal in this judgment. They do not establish how Umunakwe itself has subsequently been followed, distinguished or otherwise treated.
The Court expressly left open whether s 43 of the Evidence Act 2011 (ACT) obliged the appellant to show the complainant the Mooseheads CCTV footage in cross-examination. The Director made that submission, but the Court found it unnecessary to decide it after rejecting the appeal ground ([83], [137]). The judgment therefore should not be treated as resolving that issue.
The decision also does not specify a general threshold for how many or what kind of discrepancies will make a complainant's evidence unreliable. Its approach is evaluative and cumulative. The Court considered the subject matter of the discrepancies, intoxication, the events captured on footage, the absence of footage from the bathroom, the complainant's evidence about the charged conduct and the post-event evidence ([82]–[135]).
The Court did not decide the appeal by resolving every factual question about the earlier social interactions. Instead, it concluded that those interactions did not require a reasonable doubt about the central evidence on count 2. The judgment thus leaves the weight of comparable discrepancies dependent on the particular evidentiary record and the issues at trial.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Umunakwe v DPP Citation: [2025] ACTCA 34 Hearing Date: 13 March 2025 Decision Date: 19 August 2025 Before: McCallum CJ, Mossop and Taylor JJ Decision: The appeal is dismissed. Catchwords: APPEAL – Appeal against conviction – verdict by jury – whether verdict unreasonable or unable to be supported by the evidence – assessment of the reliability of the complainant – role of appellate court – appeal dismissed Legislation Cited: Crimes Act 1900 (ACT), s 54(1) Evidence Act 2011 (ACT), s 43 Supreme Court Act 1933 (ACT), s 37O(2)(a)(i) Cases Cited: DPP v Umunakwe (No 2) [2025] ACTSC 139 Garay v The Queen (No 3) [2023] ACTCA 2 Hudson v DPP [2024] ACTCA 28 Incandela v The Queen [2023] ACTCA 41 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Marshall v The King [2023] ACTCA 11 MFA v The Queen [2002] HCA 53 Pell v The Queen [2020] HCA 12; 268 CLR 123 R v Baden-Clay [2016] HCA 35; 258 CLR 308 The King v ZT [2025] HCA 9; 99 ALJR 676 Parties: Emmanuel Umunakwe (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel C Akthar (Appellant) V Engel SC with C Muthurajah (Respondent) Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: AC 26 of 2024 Decision Under Appeal: Court/Tribunal: Supreme Court of the ACT Before: Baker J Date of Decision: 22 July 2024 Case Title: DPP v Umunakwe Court File Numbers: SCC 187 of 2023 THE COURT: Introduction
Between 15 July 2024 and 19 July 2024, the appellant Mr Emmanuel Umunakwe was tried before a jury. On 22 July 2024, the jury found the appellant guilty of count 2 being an offence of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT).
The appellant was found not guilty of count 1 and count 3 which were also offences contrary to s 54(1) of the Crimes Act.
By Notice of Appeal filed on 19 August 2024, the appellant appealed against his conviction on count 2. The appellant relied on a single ground, namely, that the jury’s verdict was unreasonable, or cannot be supported, having regard to the evidence: s 37O(2)(a)(i) of the Supreme Court Act 1933 (ACT).
For the reasons that follow, the ground of appeal has not been established.
The appeal: legal principles
The appeal is brought pursuant to s 37O(2)(a)(i) of the Supreme Court Act which provides that on an appeal against conviction this Court must allow the appeal if it concludes that the verdict of the jury must be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence.
The legal principles governing a ground of appeal asserting that a jury verdict is unreasonable are well established. As this Court held in Marshall v The King [2023] ACTCA 11 at [145]-[146]: …The question is whether an independent examination of the evidence establishes that it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-493, 494-495 (M v The Queen); Baden- Clay at [65]-[66]. In conducting that examination, regard must be had to the advantage the jury had in seeing and hearing the witnesses. Finding that a verdict is unreasonable requires that the appellate court be satisfied that the jury must, as opposed to might, have entertained a reasonable doubt as to the accused’s guilt: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]; Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [37]-[39]. The principles were recently summarised in Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [7]-[15], accepting that M v The Queen represents the correct approach. In applying that test, it was said that the court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence. In answering that question, the court must take into account that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that it has had the benefit of seeing and hearing the witnesses. However, it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appeal court that the court may conclude that no relevant miscarriage of justice has occurred…
Where the verdict challenged rests on the evidence of a single witness as is the case in this appeal, an appellate court must proceed on the basis that the jury accepted the evidence of that witness to be credible and reliable. The High Court explained in Pell v The Queen [2020] HCA 12; 268 CLR 123 the function of an appellate court called upon to assess whether a jury verdict is unreasonable in such a case at [39]: The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (Citations omitted.)
More recently, the High Court in The King v ZT [2025] HCA 9; 99 ALJR 676 at [9], citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487 observed with respect to the nature of the advantage of a jury: …The advantages spoken of are the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial… (Citations omitted.)
It is a “serious step” to set aside the verdict of a jury and is one which should not be taken without due regard to the particular advantage of a jury over a court of appeal: R v Baden- Clay [2016] HCA 35; 258 CLR 308 at [65]. The High Court reiterated in ZT at [10] that an appellate court is required to give “full allowance” to the jury’s advantage in considering whether it can resolve a doubt experienced on appellate review after an independent assessment of the sufficiency and quality of the whole of the evidence.
These principles underscore the significance of the opportunity for the jury to assess the witnesses and the evidence in the environment of the trial. To establish that a verdict which relied on the evidence of one critical witness is unreasonable, or cannot be supported, the appellant must demonstrate that any inconsistency, discrepancy or some other inadequacy demonstrates that notwithstanding the jury’s advantage, acting reasonably they ought to have entertained a reasonable doubt.
As will become clear, the appellant has not demonstrated that the identifiable discrepancies in the complainant’s account were such as to have necessarily resulted in reasonable doubt as to her reliability on the vital aspects of her evidence. Overview of the prosecution case
The prosecution case was that the appellant and the complainant were unknown to each other prior to the incident subject of all three counts on the indictment.
The complainant was out for the evening in the Canberra central business district with some friends. So too, the appellant. They were both socialising at the venue known as Mooseheads, and it is here that they first interacted.
The first interaction between the appellant and the complainant was captured on closed-circuit television (‘CCTV’) footage taken inside Mooseheads from various vantage points. The footage was played in the trial for the jury but it was not played to the complainant during her evidence, a matter to which we will return. The CCTV footage was, by agreement, played in the hearing of this appeal.
There was additional CCTV footage taken from outdoor CCTV cameras which captured the complainant at various moments over the course of the evening walking between venues as well as in the immediate aftermath of the acts subject to the counts on the indictment.
The CCTV footage was good quality and enabled identification and observation of the appellant and the complainant. The CCTV footage from Mooseheads captured an interaction with the appellant and complainant during which the appellant appeared to use his mobile phone. The CCTV footage also captured a kiss the appellant initiated with the complainant proximate to the first interaction and while she was standing with friends near the bar. Finally, the CCTV footage from Mooseheads captured the appellant and the complainant dancing together and kissing on the dancefloor area.
The complainant gave evidence about the appellant kissing her near the bar. She did not recall meeting the appellant or engaging with him in relation to his mobile phone. She also did not recall dancing with the appellant and kissing him on the dancefloor at Mooseheads.
The allegations of sexual intercourse without consent arose from an interaction between the complainant and the appellant at a second venue, One22. The complainant recalled finding herself in the male toilets of that venue with the appellant. The three counts on the indictment reflected conduct the appellant was said to have engaged in while in a cubicle with the complainant. There was no CCTV footage from One22.
The complainant fled One22 after the interaction with the appellant in the toilet cubicle at One22 and almost immediately complained about the appellant’s conduct to a stranger who rendered her assistance.
Evidence in the trial
The Agreed Facts
A statement of agreed facts was tendered (‘the Agreed Facts’) as follows: 7. At Mollys, the complainant had a cocktail. The group sat at the table consuming their drinks and eating pretzels that were provided by the bar. 8. The complainant, Ms G and Ms P then walked to One22 again. On the way, at about 11:32, Ms P took some footage on her phone of Ms G and the complainant. 9. The CCTV footage shows that at about 11:56, the complainant, Ms G and Ms P arrived at One22 and went together to the bathroom. The complainant and Ms G then went to the bar and each had a tequila shot. At about 12:30am the complainant, Ms G and Ms P left One 22. 10. The CCTV footage shows that the group then walked to Mooseheads, arriving at about 12:33am on 28 January 2023. They walked to an upstairs section of the night club. Ms G went to use the bathroom. The complainant went to the dance floor. 11. The CCTV footage shows that the group spent a period of time dancing on the raised dancefloor at Mooseheads. 12. The CCTV footage shows that at about 12:52am, the complainant, Ms G and Ms P left the dancefloor and entered the bar area of the venue. During this time the complainant was photographed with her friends. 13. The CCTV footage shows that at about 12:54, the complainant approached the bar. The complainant and the accused were standing with their respective groups of friends. The complainant and the accused conversed for approximately one minute and during this time the accused gave the complainant his phone. Ms P spoke to the complainant. Ms P and the accused shook hands. The complainant gave the phone back to the accused. 14. The CCTV footage shows that the accused and complainant then separated and went back to their individual groups of friends. 15. The complainant ordered a round of tequila shots. The CCTV footage shows that Ms P the complainant and a friend, Ms I, hugged. 16. The accused approached the bar and ordered a round of drinks which he gave to his friends. The accused then approached the complainant touched her arm with his hand and, stated 'you're the most beautiful girl', and began to kiss her. The CCTV footage shows that she kissed him back and wrapped her arms around his neck. 17. The CCTV shows that after a few seconds, Ms I tapped the complainant's arm and she stopped kissing the accused. 18. Following the kiss, the accused stayed in the area and Ms I had a brief conversation with the accused. Ms I wanted the accused to leave the area and told him 'she is my girlfriend’ and said to the complainant 'let's kiss'. They then kissed in front of the accused. 19. The CCTV footage shows that the two friendship groups then conversed with each other briefly at the bar. 20. The complainant's group, including Ms I, after drinking their drinks began looking for a flask lid that Ms I had dropped. 21. The CCTV footage shows that shortly after 1am, the complainant and Ms G returned to the dancefloor, Ms P and Ms I had left the group at this stage. 22. The CCTV footage shows the complainant and Ms G move between different parts of the dancefloor. 23. The CCTV footage shows that at about 1:12, the complainant and Ms G entered another part of the dancefloor. The accused was dancing with his friends in this area. The accused and the complainant were not directly in contact or interacting. 24. The accused moved up to a further raised area of the dancefloor near poles with his group. 25. At about 1:13 the accused’s friends moved across the dancefloor. The accused followed them. The CCTV footage shows that Ms G talked to one of the accused's friends, Mr White, and commenced dancing with him. The complainant, the accused and the accused's friend Mr Johnston commenced talking. 26. The CCTV footage shows that at about 1:14 Ms G kissed Mr White and the complainant and the accused kissed on the dancefloor, during which time the complainant wrapped her arms around the accused’s neck. 27. The CCTV footage shows that Ms G and Mr White approached the complainant and the accused and the groups commenced dancing together. The accused spun the complainant around on the dancefloor whilst they held hands. 28. The CCTV footage shows that at about 1:15 Ms G and Mr White kissed. The complainant and the accused kissed. The complainant and the accused continued dancing together. The complainant had her arm around the accused’s neck. The complainant and the accused kissed. The accused then kissed the complainant's neck. 29. The CCTV footage shows that the complainant and the accused kissed and the complainant touched the accused's face with one hand and had her other arm around his neck. The complainant and accused then talked with Ms G and Mr White. 30. The CCTV footage shows that at about 1:17 the accused and the complainant resumed dancing and they kissed. The accused spun the complainant around whilst holding hands and then they kissed again. 31. The CCTV footage shows that at about 1:18, Mr White pulled on the accused's shirt. The groups then separated. Ms G and the complainant remained on the dancefloor for a short period. 32. The CCTV footage shows that at about 1:19, Ms G and the complainant left the upstairs area of Mooseheads and stood outside the venue. At about 1:20 Ms G and the complainant entered the downstairs venue of Mooseheads. They pointed to a staff member who is behind the bar. Ms G and the complainant then danced by the bar area. At about 1:22, Ms G and the complainant left the venue. The complainant waved goodbye to the door staff member. Ms G and the complainant ran through part of Verity lane. They return to the venue One22. 33. At One 22, Ms G saw Mr White again and the complainant spoke with the accused. 34. The accused and complainant went to the male bathrooms of One22. 35. The complainant left One22 and walked to Verity Lane, arriving there at approximately 1:55am. 36. The complainant then walked to and sat down in an alleyway near Mooseheads where she was approached by Ms L. Ms L was with her boyfriend Mr C. 37. Mr C recognised the complainant as a friend of Ms G and attempted to contact Ms G. He then went to alert Mooseheads security at the request of Ms L. Mr C ran to the front door of the pub and to the bar upstairs and told them to get security to the milk crates downstairs because there was a female there that needed help. Mr C went back to the alleyway. 38. Joseph Truscott, who was the rostered general manager of the Mooseheads night club that night saw the complainant and Ms L in the alleyway as part of a lap he was doing of the night club as part of his duties. The complainant told him she had been 'raped', mentioned something about One22 and said she was waiting for Mr X, a staff member of the club. The complainant Evidence in Chief Interview (EICI)
Further evidence of the complainant in the trial
During further evidence adduced in examination-in-chief, the complainant clarified her own position and the appellant’s position by reference to her drawings of One 22 and photographs of the One22 bathrooms.
In cross-examination the complainant confirmed that when she spoke with police, she understood the importance of giving a detailed account of the events. She confirmed that she first met the appellant when he kissed her near the bar in Mooseheads. The complainant did not deny that she would have kissed the appellant back. The following proposition was put to the complainant in respect of the kiss at the bar at Mooseheads: Counsel: I’m going to suggest to you that rather than pull away, what you did was wrap your arm around his neck whilst kissing him? Complainant: I do not recall that. Counsel: And you kissed him back? Complainant: I would have kissed him back, yes.
The complainant did not recall kissing the appellant “multiple times” over the course of the night and agreed that apart from the kiss at the bar at Mooseheads she did not tell police of any other occasion where she kissed the appellant. The complainant could not recall that she had met the appellant earlier in the night and had a conversation with him, which included putting her mobile phone number into his mobile phone. She agreed with the characterisation of the appellant as a “random guy” who kissed her at the bar at Mooseheads. The complainant agreed that she told police that she had not seen the man who kissed her at the Mooseheads bar before the kiss occurred.
The complainant could not recall encountering the appellant on the dancefloor at Mooseheads or that they had kissed while dancing there together. The complainant disagreed that she and the appellant had danced together. The complainant stated that she was not aware one of her friends had kissed one of the appellant’s friends and she was not aware of the appellant being with his friends at Mooseheads. She did recall that the appellant was with friends when he was at One22.
The complainant could not recall kissing the appellant at One22. She disagreed with the suggestion that she entered the male toilets with the appellant to engage in further intimate acts with him. She explained that she could not recall the reason “they” went to the bathroom.
The complainant agreed that the appellant had accepted her refusal to engage in oral sex with him.
The complainant agreed that neither she nor the appellant said anything during the first act of penile-vaginal intercourse. The complainant accepted that the toilets were dark, that she was facing away from the appellant and that music from the venue could be heard inside the toilet cubicle at One22. She said that she was speaking to the appellant “at a reasonable volume where [she] could be heard”. The complainant agreed that it was “possible” that it would have been “very hard” for the appellant to see her facial expression even if she was facing him but maintained that there was “reasonable light to see faces”. The complainant gave the following evidence in cross-examination: Counsel: What I am suggesting to you is him being confused and saying those things is consistent with the possibility I have put to you that he didn’t hear you say anything; do you agree or disagree? Complainant: It is a possibility. Counsel: He didn’t see you saying anything or crying or anything? Complainant: I believe I would have very clearly been heard and seen. The – it is not pitch black in those bathrooms. It is dark but facial expressions were still visible.
Ms L
Ms L gave evidence that in the early hours of 28 January 2023, whilst she was with her boyfriend in Verity Lane behind the Mooseheads alley back door, she found the complainant crying. Ms L approached the complainant and asked if she was okay and if she needed her to call anyone.
The complainant told Ms L that she had been raped. Ms L recalled that the complainant was hysterical, crying a lot and repeating it over and over again. Ms L asked the complainant if she could call the police and an ambulance.
Ms L then recalled a security guard from Mooseheads came out of a back door and asked them to leave as they were not allowed to be there. The security guard then called the police whilst Ms L stayed with the complainant.
The complainant told Ms L that she had a friend working in Mooseheads. Ms L’s boyfriend went to look for the friend. Ms L then called Ms G and went to look for her. After finding Ms G at the end of Verity Lane, Ms L brought Ms G to the complainant.
Ms G
Ms G, the complainant’s friend, recalled kissing and dancing with a friend of the appellant whilst they were at Mooseheads. She stated that the complainant was kissing the appellant whilst at Mooseheads.
Ms G stated that approximately 10 to 15 minutes after arriving at One22, she realised the complainant and the appellant were not present. She stated she did not see the complainant and the appellant kissing at One22. Ms G gave evidence that the appellant returned without the complainant which caused her to go looking for the complainant.
Ms G called the complainant who was crying. Ms G had difficulty understanding what the complainant was saying. Ms G went to the alleyway between One22 and Mooseheads to find the complainant. She was approached by Ms L who asked if she was looking for the complainant. Ms G went to the complainant and described her as “hysterical. She was crying a lot. She couldn’t really get her words out ‘cause she was just panicking”. She recalled the complainant saying, “He took me to the bathroom, and I kept saying “no””.
Ms G went with the complainant to the hospital and remained with her until 6am the next day.
Leigh Michelle Burton
Acting Sergeant Burton was the police officer on duty from the Sexual Assault and Child Abuse Team of ACT Policing on the night of the incident.
Acting Sergeant Burton explained that on the night of the incident, she met the appellant in the police interview rooms. The informant then requested a forensic procedure from the appellant, which included photographs, fingernail scrapings and a buccal swab.
Acting Sergeant Burton contacted the complainant the following day and interviewed her on 9 February 2023.
Acting Sergeant Burton obtained footage from Ms P’s mobile phone and CCTV footage from Mooseheads, One22 and Sierra10, which are public safety cameras owned by the ACT Government. The Sierra10 camera is monitored by ACT policing on Thursday, Friday and Saturday night. Acting Sergeant Burton gave evidence that they obtained the Sierra10 camera footage from the camera located on the corner of London Circuit and Verity Lane, where Mooseheads is located.
Upon reviewing the CCTV footage, the informant explained that he discovered that the footage from One22 did not capture the period over which the appellant and the complainant were at the venue together. By the time of his discovery, the relevant One22 CCTV footage no longer existed.
The informant also obtained the body-worn camera (‘BWC’) footage from the police who attended the incident.
Footage obtained from Ms P’s mobile phone, the CCTV footage as well as the BWC footage was played to the jury during Acting Sergeant Burton’s evidence. The timestamp on the CCTV footage from Mooseheads was identified as one hour behind the actual time the footage was recorded.
Dr Amanda Barry
Dr Barry was the doctor who examined the complainant at Canberra Hospital in the early morning of 28 January 2023.
Dr Barry gave evidence as to the medical examination record, which stated that: 'Male bathroom at One22. His friend was in the stall. He told him to get out. Occurred - query disabled toilet,' and in brackets, I've written, '(Larger than normal stall). Door was closed. He made me bend over. He made me have sex with me.' And then I've written, 'Penis-vagina (from behind). Thinks penis-anal ("Felt different, not sure"). "Kept asking me to give him head. I said no." And in brackets, I've written, '(This was before penile-vaginal). No cunnilingus. Kissed my mouth at the bar. "I told him stop, stop. I screamed 'Stop.'"' 65 ․ Dr Barry recorded that the complainant was upset and tearful during the history-taking process. Dr Barry gave evidence that she did not find any anogenital injuries on the complainant and that up to 80 or 90% of the time, she will not see any anogenital injuries.
Dr Barry collected a number of samples from the complainant during her examination.
Joshua Abraham Schwartz
Joshua Schwartz is a Senior Forensic Biologist with the AFP who conducted the forensic biology examination and analysis of the swabs that were collected. A Biology Court Report authored by Mr Schwartz was tendered.
Mr Schwartz stated semen was not detected in any of the samples. However, both the complainant and the appellant could not be excluded as contributors to the mixed DNA profile in the following four swabs obtained from the complainant: (a) Labial/perineal swab; (b) Low vagina swab; (c) High vagina swab; and (d) Endo-cervical swab.
Mr Schwartz gave evidence that in these swabs, the DNA evidence indicated it was more likely that the complainant and the appellant were the two contributors to the mixed DNA profile as opposed to the complainant and some unknown and unrelated individual.
In relation to the wet/dry perianal swab obtained from the complainant, Mr Schwartz gave evidence that analysis of the sample provided strong support for the proposition that the appellant was the source of the profile.
Mr Schwartz confirmed that it would be reasonable for the appellant’s DNA to appear in the samples if the appellant and complainant had been kissing and holding hands throughout the night.
Mr Schwartz gave evidence that there was extremely strong support that the complainant was a contributor to the DNA present in the swaps and fingernail scrapings taken from the appellant’s hands. The appellant
The appellant did not give evidence in the trial.
The appeal
At the heart of the appellant’s assertion that the jury’s verdict was unreasonable sits the reliability of the complainant’s evidence. The appellant identified four aspects of the complainant’s evidence to demonstrate that her evidence was incapable of being relied upon and in turn that the verdict of the jury was unreasonable: (a) The circumstances in which the complainant met the appellant; (b) The degree of interaction between the complainant and the appellant throughout the evening; (c) The contextual social engagement surrounding the complainant and appellant’s interaction; and (d) The complainant’s role in intimate activities that occurred outside the bathroom.
The appellant submitted that the “central issue” in the appeal was whether it was open to the jury to find the complainant reliable “when a comparison between the complainant’s account and the available objective evidence showed the complainant’s recollections to be unreliable in a substantial and material way”.
The appellant characterised the complainant’s evidence, after comparison with the Agreed Facts which were largely taken from what was captured in CCTV footage, as “glaringly lacking in accuracy”. Counsel for the appellant argued that the complainant’s recollection of the events that led up to the interaction subject of the counts on the indictment was objectively unreliable to such an extent that it should have cast doubt on the reliability of her account generally and in relation to what happened in the toilet cubicle at One22. Put another way, the complainant’s recollection was so measurably inaccurate it necessarily created doubt as to the accuracy of her version of events in the toilet cubicle at One22.
The appellant identified that the “most important” aspect of the complainant’s evidence which demonstrated the “stark contrast” between the complainant’s recollection and the objective evidence, was the kiss between them captured by the CCTV footage near the bar area at Mooseheads.
In her evidence the complainant disagreed that she and the appellant had met earlier in the night before their first kiss. She disagreed that she had put her phone number into the accused’s mobile phone. This interaction was included in the Agreed Facts. The complainant did not recall the further encounter with the appellant at Mooseheads also captured on CCTV where they danced together and kissed on the dance floor.
The appellant submitted that on the complainant’s version of her interaction with the appellant prior to the incident subject of the charges contact between them was limited to a kiss that she pulled away from. The appellant contended that the complainant’s characterisation of the appellant as a “random guy” who kissed her was at odds with her having interacted with him minutes before the kiss. The Agreed Facts and the CCTV footage were said to demonstrate that the complainant’s account was inaccurate and further established that she had actively participated in “intimate” activity with the appellant prior to the interaction in the bathroom at One22.
Section 43 of the Evidence Act
Orders
I certify that the preceding one hundred and thirty-eight [138] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 19 August 2025
Umunakwe
DPP [2025] ACTCA 34
(1994) 181 CLR 487
(2007) 230 CLR 559
(2020) 94 ALJR 394
(2022) 96 ALJR 728
The appeal was dismissed. The Court held that the appellant had not established that the jury's verdict on count 2 was unreasonable or could not be supported having regard to the evidence.
The complainant’s EICI conducted on 9 February 2023 was played to the jury as part of her evidence-in-chief. A transcript of the EICI was provided to the jury. In the EICI, the complainant gave the following account of the night of the incident.
At around 8:30pm on 27 January 2023, the complainant was dropped off by her friend at the home of another friend, Ms G. After consuming a few alcoholic beverages, the complainant and Ms G were picked up by Mr X and Ms P. The group then travelled into the city. By the time she arrived in the city the complainant estimated she had consumed two cans, and a quarter of a third can, of alcoholic mix drinks.
When they arrived in the city, the complainant, Ms G and Ms P briefly went to One22 for approximately 5 or 10 minutes where the complainant consumed another alcoholic drink. The group then went to Molly’s bar. The complainant explained that after consuming a cocktail at Molly’s bar this period of the evening was “probably” her “drunkest point” and that she felt “a lot more drunk” than when she had first walked into Molly’s bar.
Sometime around 11:00pm, the complainant, Ms G and Ms P went to Mooseheads. Mr X was working a shift at Mooseheads at the time.
The complainant recalled that she first met the appellant whilst waiting at the bar at Mooseheads for drinks with Ms G, Ms P and a school friend, Ms I. When describing how she met the appellant, the complainant said she was standing facing the bar. The complainant told police, “I’ve just kind of turned my head and this guy just started kissing me”. The complainant explained that she was “just very shocked and confused, because I felt like I literally just turned my head”. The appellant, she said, told her immediately after the kiss that she was “the most beautiful girl”. The kiss came from her right-hand side.
The complainant described the kiss on her mouth as “probably” lasting a few seconds and she was not sure whether the appellant put his tongue in her mouth saying she thought “it was just his lips”. When asked “how did the kiss stop”, the complainant replied “I think I just kind of pulled away a bit and just – because I thought it was really random”.
The complainant went onto explain that she “didn’t think a whole lot of it. Like, I wasn’t into it, but I wasn’t, like, totally against it, but just, I mean it just happened”. The complainant said she did not “consent” to the kiss. The complainant said that she danced at Mooseheads and estimated that she was at Mooseheads for an hour or two.
The complainant then stated that she went back to One22 with Ms G.
While she and Ms G were at the bar in One22, the complainant recalled that one of her friends was talking to one of the appellant’s friends. The appellant walked over to her at the bar and began conversing with her saying “oh, it’s you again”. The complainant said she replied “oh, it’s you” and asked the appellant his name. The complainant could not recall if she had anything to drink at One22.
The complainant said that the “next thing” she recalled was being in front of the bathrooms at One22 with the appellant. She said she “assumed” she walked there and could not remember requiring any assistance to do so. She recalled that they “paused for a second” out the front of the bathrooms and “then, I don’t know, we were in the male bathroom”. She remembered going through the door of the bathroom saying she had “never been into a male bathroom” so she was “just kind of looking around, like, kind of shocked what it looked like”. The complainant described walking to the disabled cubicle of the male toilet and the appellant telling a man who she thought “had red on” who was using the disabled cubicle to “get out”. The complainant said the man got out after he finished using the toilet and the appellant locked the cubicle.
The complainant described her position as facing the appellant and the appellant put his hand on her shoulder “trying to push [her] down to give him head” and asked her to “give him a head”. The complainant replied that she “would not do that”. The appellant told the complainant to “get up against the wall” and she had to “lean over the toilet”.
The appellant put his penis into her vagina and thrusted in and out. His hands were on her waist. The complainant said she felt shocked, the act was painful and went on for a couple of minutes. This act of sexual intercourse was count 1.
The appellant then turned the complainant around to face him and asked her to give him a ‘blowjob’ and “did the whole shoulder thing again” applying pressure to her left shoulder as if to push her down. She again refused telling the appellant “I’m not doing that”. The appellant turned the complainant back around and continued to have sex with her by putting his penis into her vagina. The complainant said she was “trying to get away at this point” and she told the appellant “It’s hurting, stop, this is not – just get off me”. The complainant said she started to cry telling the appellant to “stop, it hurts”. The complainant described the appellant “picked up the pace, I guess”. This act of sexual intercourse was count 2.
The complainant said she pushed herself off the toilet and opened the door of the toilet cubicle. She turned toward the appellant. She described him as appearing “all confused” and he said to her “where are you going, what’s happened?”. The complainant said she was crying. She did not recall any other detail until she stopped in the alley outside of Mooseheads.
The complainant described, during the act relied upon for count 2, that the appellant’s penis may have entered her anus. She believed this to have occurred because the act became “way more painful” which lasted for about 30 seconds. The act of anal penetration was relied upon for count 3.
The complainant stated that another woman found her in the alley and asked her what had happened. The woman then called the police. The complainant recalled talking to a few of the police as well as an employee of Mooseheads, who she asked to retrieve Mr X. The woman assisted the complainant to call Ms G. The complainant stated that Ms G could not understand what she was saying on the phone because she was crying and inconsolable.
The complainant went to the hospital for a medical examination. During her EICI, the complainant drew pictures depicting the layout of One22.
The complainant agreed that when she was facing the appellant and refused to give him a “head job” that the appellant heard her and respected her response.
The complainant rejected the proposition that she had changed her mind about having sex with the appellant during the second act of sexual intercourse and became upset because of what she perceived to be an attempt at anal penetration.
The complainant readily conceded that she could not be certain that anal penetration had in fact occurred and agreed that the sensation she perceived as anal penetration could have been because of the appellant’s penis making contact with her perianal area.
The appellant invoked additional inconsistencies in the complainant’s recollection of surrounding interactions between the appellant and her friends in further support of the unreliability of her version. The complainant’s version of events was that there was no interaction between her friends and the appellant other than one of her friends telling him to “get away” following their first interaction, namely the kiss at the bar at Mooseheads. Ms G’s evidence and the Agreed Facts established that she and a friend of the appellant’s had been kissing and dancing throughout the night and Ms P and Ms I had also spoken to the appellant. Consideration
The appellant submitted that the reliability of the complainant’s evidence about the acts in the toilet cubicle of One22 was fatally undermined by both the absence and inaccurate description of material interactions with the appellant in her account. Counsel for the appellant was sensibly careful to make clear that the complainant’s response to the first kiss at the Mooseheads bar, was not significant because it founded an inference that by her ‘active’ engagement in the kiss the complainant communicated her consent to sexual intercourse later in the toilet cubicle of One22. Rather, it was said to demonstrate that her recollection of the kiss at the bar was so demonstrably inaccurate that her account of what occurred in the toilet cubicle at One22 could not reasonably be relied upon.
The first point to observe is that whilst the CCTV footage demonstrated that the complainant’s recollection of matters prior to the acts reflected in the counts on the indictment was inaccurate, the CCTV footage did not depict any matter which went directly to the accuracy of her account of what occurred in the cubicle of the male toilet at One22. There was no CCTV footage from One22 at that point in the evening and no eyewitness account of their engagement immediately outside or once inside the toilet cubicle.
The complainant was not ever shown the Mooseheads CCTV footage. This was, it would seem, the result of a forensic decision made by counsel for the appellant and the prosecution. Whether or not there was an obligation on the appellant to put the aspects of the CCTV footage inconsistent with the complainant’s version to her in cross-examination is a matter to which we will turn, but for the present purposes we note the jury were deprived of the opportunity to consider any explanation by the complainant for the inaccuracies or to observe the complainant being confronted with the evidence which demonstrated inaccuracy.
It can be accepted that the accuracy of the complainant’s recollection of what occurred in the One22 toilet cubicle was vital notwithstanding how honest she may have appeared. In making an assessment of her evidence, we would respectfully adopt the observations of McHugh J in M v The Queen at 534. The fact that his Honour was in dissent in that case does not derogate from the force of those remarks, which accord with the everyday experience of courts in the Territory: It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.
In our view the inconsistencies in the complainant’s account were not such as to render her evidence as to the vital aspects of it incapable of being relied upon beyond reasonable doubt.
We have concluded after an independent review of the evidence that it was well open to the jury to consider that the failure by the complainant to recall her first meeting with the appellant, their dancefloor interactions at Mooseheads and other “contextual social engagement” as well as her description of their first kiss at the Mooseheads bar, were not matters which fatally undermined her reliability as to the vital detail of the interaction with the appellant in the One22 toilet cubicle. In circumstances where the complainant was not shown the Mooseheads CCTV footage before she gave evidence, there were several matters for the jury to contemplate in coming to consider the effect on her overall reliability of any inconsistency in her version demonstrated by the Mooseheads CCTV footage and other evidence.
First, the complainant’s level of intoxication. It is trite to observe that the jury were entitled to accept some of the complainant’s evidence and reject other parts of it. Common sense and human experience dictated that the complainant’s state of intoxication was a factor which could have influenced her ability to recall details from the evening. Indeed, early on in her evidence in chief interview with police, the complainant said “Um the next – like, I won’t lie. I had a fair bit to drink, so --- I don’t know about that or, like what happened, but I can’t remember a lot of (indistinct).”
The evidence demonstrated the complainant’s level of intoxication to be highest before she attended One22 on the occasion the acts in the toilet cubicle took place. This was a consideration which influenced an assessment of the accuracy of her overall recollection of the evening and of the events proximate to the time she was most intoxicated.
The evidence established that the complainant arrived at Molly Bar with her friends around 11pm. The complainant stated that she consumed a cocktail at Molly Bar after which described she felt “a lot more drunk” which made her feel “slightly more unaware of what was happening”. The complainant said that this time at Molly Bar was her “drunkest point” explaining that she was drinking quickly and that she felt unstable which she clarified to mean “like, not dizzy, but, like, I don’t know. You can’t, like, sense things as much”. The complainant said that she and her friends stayed at Molly Bar for about half an hour and then the group went to Mooseheads which was where she first encountered the appellant. The complainant met the appellant while she was waiting at the bar for three ‘shot’ drinks that she ordered. The complainant did not recall whether she consumed any alcohol at One22 after the ‘shot’ at Mooseheads. The complainant said that at One22 she “didn’t feel super drunk. Like, I felt like I’d been drinking, like ---but nothing major”.
The Agreed Facts presented the chronology of events to the jury as the complainant, Ms G and Ms P attending One22 at 11:56pm after they had finished at Molly Bar but before they went to Mooseheads. The Agreed Facts included the complainant and Ms G consuming a shot of tequila at the One22 bar during this visit. The Agreed Facts detailed that the complainant, Ms G and Ms P left One22 at 12:30am before arriving at Mooseheads at 12:33am. Ms G and the complainant left Mooseheads at 1:22am and ran through Verity Lane to return to One22.
We observe that neither the complainant nor Ms G included the visit to One22 after Molly Bar but before Mooseheads in their account of their movements on the evening. This visit to One22 accounted for an additional ‘shot’ of alcohol that the complainant did not refer to in her evidence. The appellant did not identify the difference between the complainant’s chronology and the chronology outlined in the Agreed Facts as an inconsistency which demonstrated her to be unreliable. We do not consider it to be of any real moment either on its own or in combination with other inaccuracies in the complainant’s account.
The effect of the evidence was that the time at Mooseheads was the last occasion in the evening that the complainant recalled consuming alcohol. The evidence demonstrated the complainant spent around an hour at Mooseheads socialising and dancing before moving back to One22 after 1:22am. It was during this visit to One22 that the events in the toilet cubicle with the appellant occurred. The complainant’s evidence was that her level of intoxication was highest at Molly Bar and by the time she returned to One22 she did not feel “super drunk”.
Secondly, the effect of the complainant’s evidence with respect to the first kiss with the appellant at the bar at Mooseheads did not support a conclusion that her recall of it was substantially inaccurate or that she substantially misrepresented the nature of the kiss or her participation in it, in her account. The appellant submitted that the significance of her inaccurate recall of the kiss at the bar raised the prospect that her recall of the events in the One22 toilet cubicle was similarly inaccurate. This is a submission which ought to be rejected after review of the CCTV footage and of the entirety of the complainant’s evidence about this kiss.
The complainant readily accepted that she had likely kissed the appellant back despite the “random” nature of the kiss. Her description of the circumstances of its occurrence was not inconsistent with the Mooseheads CCTV footage.
The complainant said of the kiss, “I just turned around and he started kissing me…I kind of just pulled away. And my friend kept, one of my friends just kept telling me, like ‘just get away’, you know but I was waiting for my drinks”.
The CCTV footage captured the appellant standing very close behind the complainant near the bar at Mooseheads without drawing the complainant’s attention to his presence. After a number of seconds, the appellant moved around the complainant to her right before touching her right arm briefing and quickly moving his body very close to her body with his face very near her face. As the appellant moved towards the complainant, she appeared to move, or at least lean, back. The interaction had the appearance of the appellant ‘walking’ the complainant back a few steps by moving his body toward her body. The complainant turned her head in response to the appellant touching her arm and after moving very close to the complainant, the appellant kissed her directly on the mouth. The complainant put her right arm around the appellant’s neck and appeared to engage in the kiss with the appellant. The kiss went on for around 9 seconds before the complainant’s friend appeared to notice and touched the complainant on her arm at which point the complainant pulled away from the kiss.
What is plain from the footage is that the complainant was accurate when she described the kiss as “random” in the sense that there was a very short period between the appellant touching her right arm and kissing her. The appellant appeared to move swiftly to bring his body and his face very close to the complainant. The action had the appearance of the appellant being determined to effect physical contact with the complainant and the complainant appeared taken by surprise, at least initially. There was no real ‘lead up’ to the kiss, it having occurred broken in time, albeit minutes, from their first interaction reflected in the Agreed Facts which involved the appellant’s mobile phone.
Counsel for the appellant submitted that the effect of the complainant’s evidence was to inaccurately characterise the first kiss as an “ambush” by the appellant that she did not participate in “actively or consensually”. Further, the appellant submitted that the complainant’s description of pulling back from the kiss was incompatible with the CCTV footage.
A review of the CCTV footage demonstrated that a characterisation of the kiss as an “ambush” was not inaccurate in terms of the initiation and the determined pursuit of it apparent from the appellant’s physical conduct. The physical action engaged in by the appellant did not offer the complainant any substantial opportunity to protest or to agree, before he placed his lips on her lips. Notwithstanding that the appellant “touched her arm” and said “you’re the most beautiful girl”, the complainant’s evidence that she did not “consent” to the kiss in the sense that she did not agree to its initiation, on viewing the CCTV footage which did not include sound, was not completely at odds with what the CCTV footage revealed. To characterise the kiss as an ‘ambush’, that is physical contact by the appellant which took the complainant by surprise, if that was the effect of the complainant’s evidence, was not an exaggeration or entirely inconsistent with the CCTV footage.
Her response to and participation in the kiss as well as her evidence that “she just kind of pulled away” fell to be assessed in the entirety of her evidence which included ready acceptance that she likely kissed the appellant back and that she “didn’t think a whole lot of it” [the kiss] and further, she “wasn’t, like, totally against it, but just, I mean it just happened”. When it was suggested to the complainant she did not “pull away” from the kiss, she responded “I disagree. I was part of it for a while but not for long and I pulled away as the kiss ends”.
The CCTV footage revealed that this was not inconsistent with the CCTV footage. The kiss which lasted for around 9 seconds ended when the complainant pulled away after her friend appeared to notice the kiss and make physical contact with the complainant.
It should also be observed that the complainant not being shown the CCTV footage and not recalling the interaction minutes before the kiss with the appellant using his mobile phone, there was no evidence that the complainant realised or appreciated that the “random guy” who kissed her at the bar was in fact a person she had interacted with minutes earlier. The CCTV footage is clear and in black and white. There was no evidence about the lighting in the bar area where the complainant and the appellant first met and kissed.
Further, the complainant’s description of the appellant as a “random guy” was not inconsistent with her having only met him that night in the minutes preceding the kiss. The Agreed Facts established that the first interaction between the complainant and the appellant at the bar where the appellant gave her his mobile phone went for “approximately one minute” and there was no evidence as to the detail of any conversation between them. This brief interaction with the appellant’s mobile phone minutes before, did not render the complainant’s description of the kiss and the appellant as “random” inaccurate or inconsistent with the circumstances.
There were other details of the first kiss at the bar which supported the complainant’s account of it. In cross-examination the complainant clarified that when she described that the appellant “hung around” her after the kiss at the Mooseheads bar “the hung around was more in the general area where I was. He wasn’t specifically hanging, like, off me but it was within that, like, vicinity”. The footage demonstrated this to be entirely accurate.
Further the complainant specifically described after the kiss at the bar with the appellant she “just kept waiting for the shots” and that her friends dropped the lid to a flask that they had been “playing around with”. The complainant said that when the drinks arrived, they took them and then went “searching for the lid” on the floor. Again, a review of the footage revealed this description to be accurate.
Whilst the complainant’s version did not account for kissing the appellant on the dancefloor at Mooseheads, her response to the suggestion that she had kissed him on other occasions was not unequivocal. Her response in cross-examination to questions which sought to confirm her version that the only occasion they kissed was at the bar at Mooseheads included “I do not remember. As far as I’m aware, yes, but I do not remember otherwise” and to the suggestion that they had kissed on the dancefloor she responded, “I’d disagree” as well as, “I do not remember” and “I do not recall that”. She was also asked whether she had put her arms around the appellant’s neck when they did kiss at the Mooseheads bar to which she responded “I do not recall that” and later to that same suggestion she responded, “I’m unsure” and “[t]o my knowledge I did not”.
The point being that the complainant did not entirely reject the suggestion that she had kissed the appellant on other occasions or that she had put her arms around his neck. The complainant’s responses to those propositions came absent the knowledge that there was CCTV footage which contradicted some of her assertions and without being confronted with the footage. Whilst she agreed that in her initial interview with police two weeks after the event, she described the kiss at the bar as the only time they kissed, the effect of her evidence was that she did not recall any other occasion where they kissed.
The CCTV footage of the kiss at the bar at Mooseheads did not in our view, substantially damage the reliability of the complainant’s evidence to such an extent that the entirety of her evidence was necessarily rendered unreliable.
Thirdly, the complainant’s response to the interaction in the toilet cubicle of One22 was compelling evidence. As was confirmed by this Court in Incandela v The Queen [2023] ACTCA 41 and Garay v The Queen (No 3) [2023] ACTCA 2 (see also Pell at [53]) and by now should be well accepted, corroboration of a single complainant is not necessary for a finding of guilt in the prosecution of sexual offences.
Even so, in this matter the complainant’s recollection of what she did and said immediately after the interaction with the appellant in the toilet at One22 was corroborated by CCTV footage from the alley and by witnesses who directly engaged with her. In addition, the complainant’s immediate complaint and demeanour, which included hysterically crying, were consistent with what she described as having occurred in the toilet cubicle with the appellant.
Relatedly, we observe that the approach of the appellant in the trial did not challenge the reliability of the complainant’s assertion that there had been penile vaginal sexual intercourse between them in the male toilet at One22. In her closing address to the jury, counsel for the appellant said, “you can see by now that there's not really any issue about the fact of penile vaginal intercourse occurring. That's not something that you're going to have to spend much time deliberating upon, whether that element's been satisfied”.
There were three central factual disputes. First, for count 3, whether anal penetration had occurred at all. Secondly, for all three counts, whether the complainant consented to the sexual acts and finally, the appellant’s state of mind with respect to consent. The strategy adopted by the appellant to the complainant’s evidence as to consent, challenged the absence of it generally, though did not directly challenge her version that by the time the act for count 2 occurred she had asked the appellant to stop and was crying.
Counsel’s approach in cross-examination of the complainant was to contest his capacity to have observed her face, to have noticed that she was trying to move away and to have heard any protest. This was of particular relevance for count 2 given the chronology of the acts. The lighting, music and the complainant’s position faced away from the appellant were suggested to have obstructed his ability to perceive that she was not consenting. The complainant accepted that it was “possible” that the appellant’s response in becoming confused and asking, “where are you going?” was consistent with him not hearing her say “stop”, though she maintained that the environment in the toilet cubicle was such that her face could be seen and her voice could be heard.
The complainant rejected entirely the suggestion that she had “changed her mind midway through the second penile-vaginal sex act”.
In light of the approach taken to the appellant’s defence, critical to the finding of guilt on count 2 was acceptance by the jury of the complainant’s account that she repeatedly said “stop” and began to cry when count 2 occurred as well as her description of the environment of the toilet cubicle. In this regard the complainant was unequivocal and consistent in her account.
It is useful to record the basis upon which the appellant was sentenced by Baker J on 10 April 2025: DPP v Umunakwe (No 2) [2025] ACTSC 139. There was no challenge in this appeal to the verdicts of the jury based on any inconsistency between them. Nor could there be in our view. Baker J made factual findings as to the basis in evidence for the jury verdicts at [22]-[24]: With respect to count 3, the victim herself acknowledged in cross-examination that the pain she experienced may have been caused by the appellant’s penis touching her perianal area. A readily apparent explanation for the jury’s verdict of not guilty with respect to count 3 was that the jury may have had a doubt as to whether anal penetration in fact occurred: see further DPP v Umunakwe [2024] ACTSC 229. Such a verdict says nothing about the credibility or the reliability of the victim’s evidence. The difference in verdicts between counts 1 and 2 are also readily explained. As outlined above, at the time of count 1, the victim had followed the offender into the disabled toilet stall. The offender asked her for oral sex, which she refused. The victim’s evidence was that she did not say anything further to him at that stage. The jury heard that the toilet stall was not well lit and the victim was facing away from the offender. The jury may have been prepared to give the offender the benefit of a reasonable doubt as to whether the offender knew that the victim was not consenting or was reckless as to whether the victim was not consenting at the time of this intercourse. The jury may also have been prepared to give the offender the benefit of a reasonable doubt, by finding that the accused’s actions (the earlier kissing, entering into the toilet stall, asking the victim for oral sex, and then asking the victim to turn around) amounted to a reasonable attempt to ascertain her consent. In contrast to count 1, the victim’s evidence was that, during the course of count 2, she repeatedly told the accused to stop, she tried to get away and she was crying. In these circumstances, the jury may well have been satisfied that although the offender had an honest belief as to consent during count 1, he could not have had an honest belief as to her consent after she made her lack of consent apparent during the acts constituting count 2.
We respectfully adopt that analysis. In finding the appellant guilty of count 2, the jury must have rejected the possibility that he held an honest belief as to consent once the complainant verbally and physically demonstrated that she was not consenting. That is, the outcome on count 2 turned on the complainant’s evidence about the physical and verbal manifestation of her lack of consent to the act and the appellant’s appreciation of her response.
In this regard, the complainant’s immediate reaction to the acts in the cubicle at One22 went to the credibility and reliability of her account about that critical aspect of her evidence. The complainant’s account that she did not consent was consistent with her demeanour and with her immediate and spontaneous complaint. Her account of what she did and said in the immediate aftermath was corroborated by direct eyewitness evidence.
From the moment that the complainant was first engaged by Ms L in the alleyway, a stranger to her, she complained of having been sexually assaulted. Ms L observed the complainant to be by herself in the alley and crying hysterically. The initial disclosure made by the complainant to Ms L was consistently repeated to Ms G, to attending police, to medical professionals and ultimately, to the jury. The detail of the complainant’s account of what occurred in the toilet cubicle in One22 did not alter in any substantial way on each occasion that she retold it.
The complaint evidence and the evidence about the complainant’s contemporaneous presentation in the alley was a powerful body of evidence with respect to the critical issue of her lack of consent and the reliability of her account of the sexual contact in the One22 toilet cubicle. This evidence was substantial, compelling and corroborated by CCTV footage and eyewitnesses.
The absence from the complainant’s account of interactions with the appellant earlier in the evening and her failure to recall the detail of interactions her friends had with the appellant and with his friends, did not necessarily undermine, or even detract from, the significant body of evidence which went to the reliability of her account in vital respects.
Fourthly, the inconsistencies in the complainant’s version were of the kind that might be accepted to feature in an account with a commonsense explanation for a point in time where the account was less accurate. In this case, there were two factors which explained the absence of earlier interactions with the appellant in the complainant’s account; her level of intoxication to which we have already referred and the nature of the interactions.
It is consistent with human experience and the experience of courts, that the “random” first kiss and the acts in the One22 toilet cubicle implanted in the complainant’s memory, whilst other interactions with the appellant at Mooseheads did not. This was reasoning which also applied to matters even further detached from the serious conduct she went on to complain about, namely the “contextual social engagement” being interactions between the complainant’s friends and the appellant and his friends. Those contextual matters might reasonably have taken on less or little significance in the complainant’s recollection of the evening in the scheme of the much more serious conduct about which she went on to complain.
The nature of the interactions that the complainant was able to recall with the appellant and their emotional effect upon her, was a reasonable explanation for why she might recall them and not recall other interactions with the appellant. The first kiss involved her feeling shocked and the interaction in the toilet cubicle at One 22 included physical pain and fear. The complainant’s response in kissing the appellant back did not take away from what the CCTV footage confirmed; the first kiss was random in the sense it was not solicited by her and took her by surprise. That first kiss and the acts in the cubicle at One22 represented conduct that the complainant described, effectively, as foisted upon her by the appellant. It was unsurprising then that the “random” first kiss and the interaction in the toilet cubicle at One22 were the two interactions with the appellant that the complainant recalled with some detail, particularly when viewed in the context of her level of intoxication and the point in time it was highest.
We note that the complainant’s evidence about the events in the One22 toilet cubicle included surrounding detail supportive of her capacity to have appreciated the environment and the interaction with the appellant. She explained that she had not ever been in a male toilet before and was “shocked” by how it looked. She remembered that there was man already in the disabled toilet who had not finished urinating and that he was wearing something “red”. She recalled that the disabled toilet was “at the back” of the bathroom. She explained that it was the appellant who moved her underwear to the side and that it was her right shoulder which was pressed “up between the toilet and the wall at the back and kind of, like, to my side. And he just keeps going”. The complainant was challenged about her reference to her handbag resting on the toilet ‘seat’ and clarified what she meant, maintaining she was not tailoring her evidence to fit the photos of the toilet she had been shown during her evidence which revealed the toilet did not have a ‘seat’ saying “I’m trying to further explain my evidence”.
The point to make is that the interaction with the appellant in the One22 toilet cubicle was the kind of interaction that the jury were entitled to reason would likely stand out in the complainant’s mind in the context of the evening. Reasonably, comprehensive details of the dancing, drinking, general interactions and socialising that she and her friends engaged in as they moved from venue to venue prior to the acts in the toilet, could have taken on less significance in the scheme of what she went on to experience.
As the trial judge properly instructed the jury in her summing up: In making an assessment of the evidence of the witnesses, you're also entitled to have regard to your understanding and experience of the nature of memory. You might consider whether some kinds of events are likely to be imprinted on the memory in a more lasting way than others. So for example, a person might remember a particular event some years ago but be unable to say what they had for breakfast last Wednesday. You might also consider whether it's easier to recall an event rather than a conversation about an event.
Finally, the complainant made important concessions relevant to her credibility and reliability. Significantly, she accepted that she may have perceived contact with her perianal area as penetration of her anus and that she kissed the appellant back. These material concessions demonstrated the complainant’s willingness to accept that there were aspects of her evidence which were incomplete or about which she may have been confused. In circumstances where she was willing to concede those matters, she remained clear and consistent as to the nature and detail of the interaction with the appellant in the One22 toilet cubicle. Critically, she maintained that she was not consenting to the sexual acts engaged in by the appellant and that for the act in count 2 she verbalised her lack of consent and began to cry. The verdicts returned by the jury, as Baker J observed, reflected careful consideration of her evidence including the effect of her concession with respect to count 3 and the nature and detail of their overall interactions, as well as the lead up to count 1.
As this Court observed in Hudson v DPP [2024] ACTCA 28 at [90]: In assessing the complainant’s evidence, it must be borne in mind that “memory is not like a video tape which accurately records all details of a particular event in sequence”: AWK v Tasmania [2024] TASCCA 5 at [279].
As has been repeatedly observed, it would be a rare case where a witness gives evidence without discrepancy or inconsistency. Indeed, a perfect account from a witness may well found an inference that their version of events is a rote performance and not an actual recollection of an experience. Not every inconsistency or discrepancy will affect the reliability of a witness, nor should it, the capacity for inaccuracy being a feature of human memory. Reliable evidence may nonetheless contain unsatisfactory aspects, the presence of which do not necessarily render other aspects entirely incapable of acceptance beyond reasonable doubt.
The observation in MFA v The Queen [2002] HCA 53 at [95]-[96] per McHugh, Gummow and Kirby JJ is apposite: It is necessary to consider cumulatively all of the aspects of the evidence of which he complains, and to ask whether, in totality, it represents an instance of verdicts that are unreasonable or unsupported by the evidence so as to result in a significant possibility of a miscarriage of justice. There are, it is true, some aspects of the evidence that are less than wholly satisfactory. But that is not uncommon in most trials. Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence. In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention. (Citations omitted.)
The inaccuracies in the complainant’s evidence were readily identifiable. That said, the Mooseheads CCTV footage in so far as it revealed the complainant’s version to be inaccurate was not in our view “a powerful body of evidence” which went to the possibility of the offences having occurred at all. Nor did the inaccuracies inescapably render the complainant’s account of what occurred in the toilet cubicle at One22 unreliable. Counsel for the appellant sought to characterise this matter as analogous to the circumstances in Pell. That is, it was not the credibility of the complainant that was fatally undermined by the inaccuracies in her evidence, but the reliability. Counsel submitted that this was a matter where the complainant’s “compelling” testimony was so “undermined by other evidence demonstrating its frailty that it cannot be accepted beyond reasonable doubt”. After a review of the whole of the evidence we do not agree.
The jury assessed the complainant’s version in the face of what CCTV footage and other evidence revealed. The extent and nature of the contact between the appellant and the complainant in the lead up to their interaction in the One22 toilet cubicle was apparent in the CCTV footage. The jury were well placed to determine whether the inaccuracies in the complainant’s account revealed by the footage and other evidence were such as to undermine the reliability of her entire account. An assessment of the complainant’s reliability in this matter was not entirely divorced from an assessment of her credibility in circumstances where her account as to the vital interaction with the appellant was not directly contradicted by other evidence. Unlike Pell, in this case as we have identified there was independent evidence to support the complainant’s account which went to both her credibility and her reliability. The advantage of a jury in assessing credibility has previously been described by this Court in Garay at [31] as follows: The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.
Notwithstanding the presence of inaccuracies in the complainant’s account, we have concluded that it was open to the jury to accept beyond reasonable doubt that she was not consenting to the act constituting count 2 and the circumstances in which it occurred. Having accepted her evidence, the jury were entitled to reject the possibility that the appellant honestly believed that she was consenting to the act for count 2.
It follows that the appellant has not demonstrated that despite the jury finding the complainant a credible and reliable witness, “the evidence as a whole was not capable of excluding a reasonable doubt” (Pell at [58]) about the appellant’s guilt for count 2. The appellant has not established that the jury’s verdict was unreasonable, or could not be supported, having regard to the evidence.
Accordingly, the appeal should be dismissed.