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[2025] NSWCCA 67
Court of Criminal Appeal (NSW)
2025-05-12
Hamill J at [1]Chen J at [19]McNaughton J at [182]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Withers v R [2025] NSWCCA 67
Hearing dates: 14 April 2025
Date of orders: 12 May 2025
Decision date: 12 May 2025
Before: Hamill J at [1]
Chen J at [19]
McNaughton J at [182]
Decision: (1) Extend the time for the filing of the notice of appeal to 21 December 2024.
(2) Grant leave to appeal.
(3) Dismiss the appeal.
Catchwords: CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of six sexual offences – whether it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt on all the evidence – whether the apparently ‘consistent’ evidence from the applicant should have been preferred by the jury – where knowledge of consent was the issue at trial – where the applicant sent suggestive and unrelenting messages to the complainant before and after the offending – where the complainant was affected by prescription medication and alcohol – where the complainant had no memory of the offending – where the complainant had established her ‘boundaries’ – leave to appeal granted – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Quinn v R [2023] NSWCCA 229
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The King v ZT [2025] HCA 9
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category: Principal judgment
Parties: Matthew Withers (Applicant)
Crown (Respondent)
Representation: Counsel:
A Moutasallem (Applicant)
C Curtis (Respondent)
Solicitors:
Advocate Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2020/00076262
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of the name of the complainant or any matter that could identify them is prohibited.
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 27 March 2023, a jury found the applicant guilty of two counts of sexual touching without consent, contrary to s 61KC(a) of the Crimes Act 1900 (NSW), and four counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act. These counts all involved offending against the complainant on the morning of 12 February 2020 at her home and whilst she was significantly impaired, having consumed a combination of prescription medication and alcohol. The complainant had no recollection of the offending against her. She only became aware of it after the applicant subsequently sent her messages over a series of days that disclosed, in detail, the sexual acts that had occurred. The issue at trial was whether the applicant knew that the complainant was not consenting to those acts.
The applicant sought leave to appeal, pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW), against his conviction on a single ground of appeal, namely, that “the verdicts of guilty were unreasonable taking into account the whole of the material available”.
The Court (per Chen J**, Hamill** and McNaughton JJ agreeing), granting leave to appeal but dismissing the appeal, held that:
M v The Queen (1994) 181 CLR 487, [1994] HCA 63; The Queen v Baden-Clay (2016) 258 CLR 308, [2016] HCA 35; Dansie v The Queen (2022) 274 CLR 651, [2022] HCA 25; The King v ZT [2025] HCA 9; De Silva v The Queen (2019) 268 CLR 57, [2019] HCA 48; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Morris v The Queen (1987) 163 CLR 454, [1987] HCA 50; SKA v The Queen (2011) 243 CLR 400, [2011] HCA 13, cited.
HAMILL J: I have read the judgment of Chen J which was circulated in draft. I agree with the orders his Honour proposes. His Honour’s comprehensive judgment relieves me of the need to set out the evidence and arguments. As Chen J observes, the approach to a ground asserting that a jury’s verdict of guilty is unreasonable or unable to be supported having regard to the evidence is well settled: see, for example, Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, and Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25.
I am satisfied that it was open to the jury – in the sense explained by the High Court in M v The Queen and SKA v The Queen – to be satisfied of the applicant’s guilt beyond reasonable doubt. On a review of the whole of the record of the trial, and having watched and listened to the electronic exhibits, I am not left with the “feeling of anxiety and discomfort” of which Sully J spoke in this Court in the case that led to the High Court’s intervention in M v The Queen. Quite to the contrary; the case against the applicant was a strong one and established the essential elements of each offence beyond reasonable doubt.
In relation to each count, there was no dispute that the sexual act (touching in some counts, intercourse in others) occurred. These were admitted by the applicant in his evidence at the trial and in his “notes” that were sent to the complainant on 18 February 2020 and set out at [86] by Chen J.
As to the issue of consent, it was ultimately conceded at the trial that the complainant did not consent. This concession was unsurprising given the powerful evidence of her level of intoxication by both alcohol and prescription medications. This was proved on her own evidence as to what she had consumed and how she felt, the evidence of the pharmacologist, the voice messages left with her sister shortly before the applicant attended (which are graphic and compelling), and (to a far lesser extent) by the CCTV footage of her attendance at the hospital. Her absence of consent was also consistent with the many messages in which she said she was not prepared to engage in sex with the applicant because he was married.
The only issue in dispute was whether the applicant knew the complainant was not consenting, or whether he was reckless as to whether she was consenting. To prove that element of the offences beyond reasonable doubt, the prosecution relied on a body of circumstantial evidence, parts of which were more convincing than others but which, taken as a whole, was compelling. The messaging between the parties in the lead up to the events alleged to found the offences, and the complainant’s condition at the time of those events, constituted powerful evidence that the applicant was, at least, reckless as to whether the complainant consented.
Given the applicant’s ultimate submission is that the verdicts are unreasonable, it is necessary to address the background and nature of his alleged offending, as well as the evidence and issues at trial.
I will outline the background facts in seven parts: first, the origin, nature and extent of the relationship between the applicant and complainant; secondly, the surrounding events on 11 and 12 February 2020; thirdly, the sexual acts on 12 February 2020; fourthly, the online contact in the days after 12 February 2020; fifthly, the admissions alleged to have been made by the applicant; sixthly, the pretext call on 9 March 2020; and, seventhly, the trial issues and, relatedly, the Crown and applicant cases concerning the element of ‘knowledge’.
The complainant met the applicant and his wife in about 2014 or 2015 through her involvement with the C3 Church in Tamworth, NSW. The complainant therefore knew that the applicant was married.
In June 2017, the applicant and complainant began communicating with each other online using Facebook Messenger. The complainant gave evidence that their communications were initially in connection with “church related things”. The applicant and complainant had little in-person contact.
On 13 March 2019, the complainant met the applicant for a coffee at a Tamworth café. The meeting was arranged by the applicant. The complainant described this meeting as “just a coffee” with a friend. Their online communication remained sporadic.
On 13 December 2019, however, the complainant sent the applicant a message that read:
“Hey Matt, long time since last chat.. Hope you and Lenna are ok.. How are thing’s [sic] going?”
The number of messages exchanged between the complainant and the applicant increased considerably thereafter. Those messages contained personal and sexually explicit content. The applicant sent the complainant photographs of himself naked and a video of him masturbating.
The Crown and the applicant took competing positions at trial and on appeal about what these messages reasonably revealed. The applicant argued that the messages, particularly those exchanged on 11 February 2020, could plausibly have been interpreted as the complainant demonstrating a sexual interest in him. The Crown conversely submitted that the messages did not provide the applicant with a basis to believe that the complainant had a genuine sexual interest in him.
It will be necessary to return to the detail of these messages later when addressing an aspect of the applicant’s unreasonableness argument.
On 11 February 2020, the complainant was “very upset”, “quite depressed” and felt “abandoned” because it was her estranged father’s birthday. She began drinking alcohol and continued to do so into the morning of 12 February 2020.
The complainant eventually went to bed. She consumed three whole Ativan tablets at this time.
The complainant had been prescribed Effexor (for depression) and Ativan (which is a strong benzodiazepine, for panic attacks and anxiety) for anywhere between “12 months to a couple of years”. In relation to the Ativan, the complainant “was prescribed to take [a] 2.5 milligram tablet” but ordinarily never did. She would instead “take a half one or sometimes just take a quarter of a tablet”. The complainant was taking half a 2.5 milligram tablet daily at bedtime in 2020.
The complainant explained that if she took a whole tablet she felt “[she] couldn’t drive. I would feel very dopey and I would often nod off, so I couldn't take that full amount” and that “it made me feel like I couldn't, I didn't feel safe in driving a car or it made me very, very sleepy”.
In consequence of the alcohol and the high dose of Ativan, the complainant began to feel various adverse effects. These included a “sharp pain” in her head, a rapid heart rate, stomach cramping, and leg paralysis.
The complainant realised that she needed to summon for help. She was lying in the foetal position on the floor of her bedroom and “screaming out, hoping that a neighbour would hear me”.
The complainant had also lost her “phone under the bed in the process, I don't know how”. She could see her phone under the bed but, as her “legs felt paralysed”, her evidence was that it took all her “strength to just kind of move my arms - I couldn't move my legs - to just kind of crawl under my bed with my arms to grab that phone”. After grabbing her phone, the complainant did not have the coordination to unlock it or to access her contacts list.
Shortly after 3:00am, the complainant started contacting people that she had recently been messaging, for help. She attempted to or did contact her sister, Deborah Weinert; a friend, Stuart Burton; and the applicant, as follows:
| 3:08am | Call to Stuart Burton lasting 3 seconds followed by a text message reading “Please I NEED HELP. CALL 000”. | | 3:11am | Complainant call to sister Deborah Weinert lasting 49 seconds (voicemail). | | 3:13am | Missed call to applicant. | | 3:14am | Missed call to Stuart Burton. | | 3:14am | Missed call to applicant. | | 3:15am | Missed call to applicant. | | 3:16am | Complainant call to sister Deborah Weinert lasting 25 seconds (voicemail). | | 3:17am | Missed call to applicant. | | 3:18am | Missed call to Stuart Burton. | | 3:20am | Missed call to applicant. | | 3:21am | Missed call to applicant. | | 3:21am | Applicant messaged complainant back. | | 3:24am | Call to applicant from complainant lasting 31 seconds (answered). |
The calls that the complainant made to her sister at 3:11am and 3:16am were not answered, but the complainant left voicemail messages on both occasions. Those messages were played to the jury and tendered. In the first, the complainant said, in an audibly distressed state, that she needed an ambulance and “just need[s] help”, asked her sister to “help [her]”, and said that it had taken “a long time to find [her] phone”. In the second, she asked her sister to please call her back, saying that “I think I really need some help this time”.
The earlier table shows that the applicant was the only person who answered the complainant’s calls and responded to her messages. The relevant messages exchanged between them, from 3:20am, were:
| 12 Feb 2020 03:20 | Complainant | I need help | | 12 Feb 2020 03:21 | Applicant | What’s yp? | | 12 Feb 2020 03:21 | Complainant | Please please | | 12 Feb 2020 03:21 | Complainant | A Messenger user missed your call. | | 12 Feb 2020 03:21 | Applicant | Ok, I’m coming | | 12 Feb 2020 03:22 | Complainant | Hello | | 12 Feb 2020 03:22 | Applicant | I’m co ing, I’ll. Be around | | 12 Feb 2020 03:22 | Complainant | I call ambo me think pleE siri |
The applicant arrived at the complainant’s house at approximately 3:45am. He observed the complainant laying on the floor in her bedroom and “howling” in pain. She recalled telling the applicant that she had “taken too many Ativan tablets”, specifically three of them.
The complainant also recalled telling the applicant that her head was “burning”, that she had “this huge pain” in her head, and that she “felt paralysed, like I couldn’t move”. The complainant told the applicant that she was “so scared of how I was feeling I wanted to get to the hospital 'cause I thought something bad was going to happen”. The complainant requested that the applicant take her to the hospital but he did not reply. He instead got her a “washer or a hand towel. He wet something and it was placed on my head”. The applicant showered the complainant.
The complainant has little to no memory of what occurred thereafter. She was not cross-examined about any of the matters set out in [37]-[48] above.
The sexual acts then occurred (these are described later: see [55]ff, below).
Afterwards, the applicant again showered the complainant before driving the complainant to Tamworth Base Hospital (‘the hospital’), where they arrived at 6:30am. A sample of the complainant’s blood was taken at 7:20am. A forensic analyst reported that the complainant’s blood sample contained benzodiazepines, venlafaxine, lorazepam (“0.02 milligrams per litre”) and alcohol (“0.100 grams per 100 millilitres”).
Dr Shuang Fu, a pharmacologist and toxicologist, gave evidence in the Crown case about these results. That evidence is addressed in more detail when dealing with an aspect of the applicant’s unreasonableness argument (see [147]ff, below); however, it is helpful to presently note three matters about the results and what they suggest about the complainant’s degree of impairment.
First, Dr Fu indicated that the blood alcohol reading was such that, assuming the complainant did “drink quite frequently”, she would have been “at least moderately, maybe significantly” affected by the level of alcohol. Secondly, she said that Ativan (when consumed in the likely dose taken by the complainant) produces central nervous system depression including “sedation, impairment of psychomotor performance, memory and cognitive function”. Thirdly, given both alcohol and Ativan “work on” the same brain location (the GABAA receptor), the consumption of both has a “synergistic effect” – that is, the effect is not merely additive, but multiplicative.
The applicant stayed with the complainant whilst she received treatment and drove her home upon her discharge. The complainant had little memory of her attendance at the hospital.
Whilst the complainant had no memory of the sexual acts on 12 February 2020, details about them later emerged from subsequent messages – sent over several days – between the applicant and the complainant.
The messages included “notes” sent by the applicant to the complainant on 18 February 2020 that outlined the sexual acts in detail. What follows sets out the relevant messages leading up to, and including, the applicant providing his “notes” to the complainant.
The applicant messaged the complainant during the afternoon and evening of 12 February 2020.
At 8:23pm, he indicated his desire to “call in before work” to see her the following day.
The applicant again expressed his desire to see the complainant.
At 6:50am, the applicant messaged the complainant, that he “called past to see if you were up”. At 6:54am, he said that he would “duck round” to see her and, at 6:58am, that he would “come round”. The complainant replied at 7:01am and 7:11am that she wanted to “be by myself right now please”, that she “started struggling last night to comprehend any of this”, that “nothing makes sense and is a total blur” and that she felt “emotionally fragile”.
At 7:15am, the applicant messaged the complainant and offered to “talk through with [her] what happened”. At 7:22am, he wrote that he would:
“like to hear everything you do remember. That conversation is on[e] you’re probably not going to want to have people around to hear. I can fill in any blanks. I just thought it might have been better to talk this stuff through this morning…”.
The complainant did not accept either request.
That evening, the applicant made four further “offers” to meet with the complainant.
8:10pm: the applicant said that he was “happy to catch up with you and go through it all [when] you’re ready”.
9:22pm: the applicant said that he was “happy to come round so you can go through everything you remember, and I can try to fill the gaps in between”.
9:41pm: the applicant said that if the complainant wanted to know more “I’m happy to talk with you”.
9:44pm: the applicant invited the complainant to message him ‘if you want me to pop round for a chat”.
The complainant did not accept any of these further requests.
The applicant then, gradually, began to provide the complainant with further details about what had happened after he arrived at her home.
The applicant sent a message to the complainant at 4:18am stating that, when she was asleep on 12 February 2020, he “spent quite some time stroking your hair” and that, if she was struggling to get to sleep, he would “be happy to do that for you”. Further messages were exchanged.
At 4:43am, the complainant said that she was “closing [her] eyes now. Probs turn phone off too”. The applicant responded at 4:44am and again offered “to come round” and hold her and stroke her hair to help her sleep, noting that “it worked a treat the other day”. The complainant indicated that that was “probs not a good idea”. The applicant responded:
“That’s not what you said the other day. You rolled over and leaned into my chest so I could rub your back too”.
The complainant declined the invitation by reply message.
The applicant later messaged the complainant at 6:24pm:
“I’m sorry I [have] been such a lousy friend. I’ve treated you really bad. It’s no wonder you don’t want to see me so much. I really do care about you a lot, been thinking about you all week. I’m sorry, I’m adding to your problems instead of helping ease them”.
“I know you've said you're a little self conscious about your self image. Don't know if this helps or not, but when I came round to help you you were laid out on the floor pretty much like this. I bent down to see if you'd hit your head and you told me I had to look at hour [sic] toe because you'd hurt it. You bent you leg up at the knee and waved your foot around. So I went and had a look. And you started wiggling your ass at me and sort of giggled a little bit. Just gotta say you don't need to worry about your toe, or you ass either. It's truely [sic] magnificent”.
“I know I didn't hit my head, I laid there for a reason.. I know I hurt my toe also but that's not the reason why I said I needed to go to hospital.. it was from the side effects I was having from what I'd taken.. No that doesn't really help anything”.
The applicant sent the complainant messages throughout the morning and early afternoon (at 7:47am (two messages), 9:30am, 1:45pm and 3:16pm).
The complainant told the applicant at 6:04pm that she had driven to Manilla and spent the afternoon there. The applicant then sent her three messages at 6:16pm, and then the following message at 6:30pm:
“When I went back to work last week on Wednesday after I dropped you home, I made a full report "notebook entry" just in case you wanted to debrief before or after your hospital councillor [sic] appointment. It gives a fuller idea if there's any blanks that your struggling with”.
“Uninhibited [first name of complainant] is a phenomena…I didn't even realise I'd sat with you for those 6-7 odd hours in hospital. I woulda stayed with you all afternoon if I thought you needed someone too [sic] keep an eye on you. Part of my job, risk assessment, drummed into me I guess. Couldn't justify it without you specifically asking. Was really glad to see you ok and up and about later that afternoon tho”.
After responding to the applicant and indicating that she “never usually push[ed] things to that extreme but it all happened so quick”, the applicant responded at 8:07pm that he was “happy to go through it with you, like I said. I took detailed notes”.
At 8:12pm, the complainant said:
“I really don't wish to experience it again.. the muscle [s]pasms and cramps in my stomach were horrible but scary was when I couldn't move and had to find the strength to get under my bed and look for my lost phone.. thought I was paralysed, the room was spinning, my heart was racing and my head was so fuckin hot.. scared me and that takes a lot”.
“at a split second when I’d over stepped things and needed help cause I hadn’t any idea of what potentially could happen”.
| 16 Feb 2020 20:28 | Applicant | You were definitely ready for a repeat performance the second time you were in the shower. | | 16 Feb 2020 20:28 | Complainant | ??? | | 16 Feb 2020 20:28 | Applicant | That’s why I really need to talk to you |
| 16 Feb 2020 20:36 | Complainant | I showered once | | 16 Feb 2020 20:45 | Applicant | We showered twice | | 16 Feb 2020 20:49 | Applicant | You got cold the first time. And asked me to take your shirt off. Then you hugged me, and told me to get under as I must be cold. Then you started kissing my neck | | 16 Feb 2020 20:49 | Applicant | Uninhibited [first name of complainant] is hot AF | | 16 Feb 2020 20:50 | Applicant | You completely forgot your headache | | 16 Feb 2020 20:53 | Complainant | Obviously I’ve forgotten more than my headache. I apologise for my actions and behaviour. I was in no condition to be thinking clearly and making decisions. | | 16 Feb 2020 20:54 | Applicant | I tried to keep a safe distance. But your legs kept buckling. When you kissed me I got you outta the shower. That was enough of that. | | 16 Feb 2020 20:54 | Complainant | I would like to know why did you comply and not make a sensible adult judgement call yourself knowing my condition? |
“I think its [sic] best if we end this texting as its [sic] giving you a false sense of security and you are too emotionally attached and I do not have those same feelings”.
“I've just re-read this again. [First name of complainant], you never ever ever have to apologise to me. It's entirely all my fault.
I've not had to deal with someone who's off their head on pills. I really thought after you'd been in the shower you had come back around to your senses again. And that after we'd been talking, and giggling, you had decided that you would like to do what we did. I'm such a lecherous bastard.
When you started stroking my side, and grabbed me to start kissing me again. [sic] You complimented me on being a good kisser. You seemed yourself. I'm sorry you can't remember what we did, because you didn't just lay there. My tongue game is pretty spot on, and at one stage you were grabbing the back of my head and grinding your hips into my face. I really thought you knew what you wanted. You then rolled over and grabbed your ass cheek and spread it so I could lick your ass. You REALLY liked that. You were telling me exactly what you wanted, and how you wanted me to do it. You said "that's enough of that, fuck me now". So I did. I was having [sic] conversation with you, and thought you were fully aware.
I hate me, please don't ever apologise to me. I really just wanted to help you, and I fucked up…”.
The applicant sent the complainant further messages at 11:07am, 3:47pm and 3:49pm. At 3:52pm and 4:11pm, the complainant sent messages to the applicant “wanting to clarify things from your message/s” and seeking “other details”.
At 4:16pm, the applicant sent the complainant two reply messages. The first advised her that he had:
“a detailed description, I took notes after I got to work. I arrived at you house about 3:45. We got to the hospital around 5:30. Here's the notes. I'll send them through. It will take a little reading”.
“I got you up and walked backwards while holding you up, got you into the shower. I turned the water on and stood just outside. Your legs kept buckling and you said I needed to get in. I took my shirt off, and pants and put on a pair of under pants that were lying on the floor. I held you up with the water running on the top of your head. You turned around and started grinding your ass on my groin. I've reached around to hold you up as you was leaning forward and knees kept buckling. I've helped you, and you've grabbed me in a bear hug. You've started swaying and rested your cheek on mine. You've pulled back and lightly kissed me. I said it was time to get out. I've gotten out and got 2 towels. I dried off and you dried in the shower.
I helped you back to the bedroom and got some dry undies to put on…helped pull your undies up, and you sat on the bed and flopped backwards. You've said something I couldn't hear, I asked what it was and you smiled at me and made the come here motion with your finger. I sat near you, leaned in and you whispered in my ear kiss me and turned your head and kissed me. You've run your hand down my side, I kissed you back. I run my hand down your side and you've laid back and opened your legs. I have touched you on the outside of your panties and you moaned. We continued to kiss, and you spread her legs further. You then sat up a little and took your panties off. We then continued to kiss, I fingered you and you got really wet. You moaned and I moved down to lick your vagina. You have grabbed my head and pulled my face into your pussy. I came up and kissed your thighs and moved back up and started fingering you again. I said to you that you are a fantastic kisser. You then rolled over towards me, grabbed an ass cheek spread them apart and I moved in and licked your ass. You moaned as I continued to finger your pussy. You then rolled back and said, I've had enough of that now. On your back, you lifted her legs up, and said "now fuck me" I moved in and inserted my dick. I held your legs and fucked you. I pulled out half way through, my dick was soaked with your juices, I've wiped them off and put my finger to your lips where you have sucked the pussy juices off. I put it back in and finished. You then rolled over and said you wanted to go to sleep. I told you that you needed to wash up, so we went back into the shower. In the shower you backed your ass up to me and started grinding hard on my crotch again, moaning. Ready for round 2 as it were. I got us out, dry and back to the bedroom where I helped you get dressed. I then put my clothes on and put you on the bed...”.
At 4:17pm, the applicant sent a further message with some additional details of the encounter. The complainant responded at 5:57pm with: “Why had u not mentioned this before, it’s been nearly a week”.
Between 19 February 2020 and 8 March 2020, the applicant sent the complainant 77 messages, none of which elicited a response from the complainant.
The applicant gave evidence at trial and confirmed that each sexual act occurred. He also gave evidence that the reference in the file note to “fingered” (the note also contained references to “fingering” and “finger”) was a reference to digital penetration. Given this evidence (involving digital penetration of the complainant’s vagina), it was open to the jury to accept, subject to satisfaction of the remaining elements for each offence, that the applicant was guilty of the principal counts of sexual intercourse (being counts 2 and 6) for these acts, rather than the alternative counts of sexual touching (being counts 3 and 7).
Thus, the acts relied upon in respect of each count were:
count 1: the applicant touched the complainant on the outside of her underpants (see [86] above, where the applicant said: “I have touched you on the outside of your panties…”).
count 2: the applicant penetrated the complainant’s vagina with his finger (see [86] above, where the applicant said: “I fingered you”).
count 4: the applicant licked the complainant’s vagina (see [86] above, where the applicant said: “I moved down to lick your vagina”).
count 5: the applicant licked the complainant’s “ass” (see [86] above, where the applicant said: “I moved in and licked your ass”).
count 6: the applicant penetrated the complainant’s vagina with his finger (see [86] above, where the applicant said: “I came up and kissed your thighs and moved back up and started fingering you again” and “I continued to finger your pussy”).
count 8: the applicant had penile-vaginal intercourse with the complainant (see [86] above, where the applicant said: “I moved in and inserted my dick. I held your legs and fucked you”).
The Crown relied upon five messages, sent by the applicant to the complainant on 13, 14, 16, 18 and 19 February 2020, as evidence constituting an admission in support of “the element of knowledge of the complainant’s lack of consent”.
The messages relied upon were as follows:
13 February 2020: “What I gotta do is get some time to talk to you. I'm on the way around with your lunch. Kick me in the shin, I held your hair out of your face yesterday I know just how ok you really are”.
14 February 2020: “I’m sorry I been such a lousy friend. I've treated you really bad. It's no wonder you don't want to see me so much”.
16 February 2020: “I'd really like the chance to go through the whole thing with you face to face. That would give you a chance to knock me out if you wanted to at the least”.
18 February 2020: “I thought if l tried to tell you everything via message it would be a bit much to take in. I would have much preferred to tell you in person (so you could have punched me in the head if you wanted to)”.
19 February 2020: “I know I've upset you terribly. And rightly so…Is there anything I could possibly do or say to possibly get you to consider to forgive me this [sic] horrible thing I've done to you? Breaking your trust and selfishly trying to pleasure you without thinking about the consequences?? I miss talking with you…”.
The Crown argued that what the applicant said in these messages amounted to admissions by him – specifically, to knowing that “the complainant was substantially intoxicated at the time they engaged in sexual acts and that what he said may lend support to proof of the element of the charge that he knew the complainant was not consenting”.
The applicant argued that, given their context, the messages (and what was said during the pretext call, set out below) were no more than a realisation by the applicant “sometime after the sexual acts occurred, that the complainant was more intoxicated than he had understood at the time” and that, at the time of the sexual acts, the applicant “genuinely believed on reasonable grounds that the complainant was consenting”.
On 9 March 2020, the applicant sent the complainant three messages: at 4:06am, 4:41am and 7:44am. At 6:56pm, the complainant sent the applicant a message: “I just tried calling you. I’m ready to talk [o]n the phone”. At the time of sending that message, the complainant was at the police station participating in a pretext call that was being covertly recorded under a surveillance device warrant.
The Crown accepted that what the applicant said in the pretext call was “generally consistent” with the version he gave in evidence – essentially that, once he assisted the complainant into the shower and had the water running on her, that the complainant had “come back to [her] senses a bit” and that she had “come good after the shower”.
The following four matters should also be noted about the pretext call.
First, the applicant said that, when he arrived at the house, the complainant was “laying there yelling and screaming” and that she was a “little bit” disorientated. Secondly, following a series of questions by the complainant, the applicant asked whether the complainant was “at the police station…making a recording to take me to Court, are you?” Thirdly, the applicant acknowledged that in the “months leading up to this night” he had made it clear how he felt towards the complainant, “what [he] would like [her] to be involved in” and, further, that “the one thing that [the complainant] kept on saying” was that she “didn’t want to be with a married person”. Fourthly, the Crown relied on the following statement as an admission – to the same effect as the five messages, referred to at [75], above:
“Um, I shouldn't have done it. It, it's just, it's just, it's just, it's out of character of me. I don't, I don't understand why I would have done it”.
“I’ve missed - I’ve missed something, I don’t know what it was, that - that I thought she was right, but I’ve missed something, and I don’t know how I missed it. She seemed all right. I don’t know how I missed it. I was right there. I don’t know how I missed it”.
The elements for each offence were agreed and a document (‘the elements document’) was provided to the jury. The trial judge directed the jury in accordance with the elements document.
There was no issue at trial that each of the alleged sexual acts occurred, nor was there any issue about the complainant’s lack of consent.
In relation to the element of knowledge, and as set out in the elements document, the Crown was required to prove beyond reasonable doubt either:
“a) The accused knew the complainant did not consent to the sexual touching [or sexual intercourse]; or
b) The accused was reckless as to whether the complainant consented because he realised there was a possibility she did not consent; or
c) The accused was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead not caring, or considering it was irrelevant whether she consented; or
d) The accused may have actually believed the complainant consented, but he had no reasonable grounds for that belief. You must consider all of the circumstances, including any steps taken by the accused to make sure the complainant consented to the sexual touching [or sexual intercourse]”.
The Crown case was that the jury should be satisfied beyond reasonable doubt that the applicant knew that the complainant was not consenting to any sexual acts. Put simply, it was argued that the complainant was grossly physically affected and compromised by the effects of the alcohol and medication, and that the applicant knew that the complainant was not consenting to engage in any sexual act or intercourse. The Crown submitted that, when combined with the manner in which the complainant was contacted, and earlier messages which made clear that she would not have sex with him, the jury should be satisfied beyond reasonable doubt about the element of knowledge in one or more of the ways required. The jury was directed accordingly by the trial judge.
The applicant’s case in connection with this issue was that – notwithstanding the complainant’s presentation when the applicant arrived at her house – the complainant “seemed more like herself” and “came good” after they showered, and that “it seemed to be that she was initiating everything that she wanted me to do”. The applicant’s argument on the issue of knowledge was that he positively, and genuinely, believed at the time that the complainant was consenting to each sexual act and that he had reasonable grounds for that belief.
The essential case thus put by the applicant was that, if the sexual acts were not initiated by the complainant, she was nonetheless a willing participant, thereby causing him to believe that she was consenting. The applicant contended that it was not until later that the applicant came to understand that the complainant may have been more intoxicated than he thought, and that she may not have been consenting.
Having summarised those matters of background, I turn now to address the ground of appeal and the applicant’s arguments in support of it.
- It is uncontentious that this Court should approach its assessment of whether the jury’s verdict was unreasonable by asking itself whether it was open to the jury to be satisfied beyond reasonable doubt, on the whole of the evidence, that the Applicant was guilty of the offence charged. In answering that question, the Court must conduct its own independent assessment of the evidence: M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63 (M v The Queen).
- The Court in Coghlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55] held that in substantially circumstantial cases, the Court must:
“weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.”
- Consistent with Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [39], in assessing the whole of the evidence, the Court should also proceed upon the assumption that a witness’ evidence was assessed by the jury to be credible and reliable, but then examine the record of the trial 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.”
- Setting aside a jury’s verdict as unreasonable is a “serious step” which should not be taken without the Court having regard to the “advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]. If the Court entertains a reasonable doubt that the accused is guilty on the basis of its assessment of the evidence, it is only where the jury’s advantage in having seen and heard the evidence is capable of resolving that doubt that the Court may conclude that no miscarriage of justice has occurred: Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], M v The Queen at 494.
- The scope of the advantage that the jury will have had over this Court by reason of having seen and heard the evidence at trial will vary based on matters such as the form in which the evidence was adduced and the nature of the issues at trial: Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [17]. A tribunal of fact (in this case, the jury) must be taken to have enjoyed a greater advantage over a court of criminal appeal where evidence was given in person and was the subject of sustained cross examination: Slattery v R [2023] NSWCCA 117 at [119].
Thus, the ultimate question “must always be whether the court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen (1994) 181 CLR 487, 494-495; [1994] HCA 63 (‘M’); The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]. The question is one of fact, not law, and requires this Court to make its own independent assessment of the evidence – both its sufficiency and quality – to determine it: M at 492; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8] and [12].
Further, when this Court undertakes an independent assessment of the sufficiency and quality of “the whole of the evidence” in order to decide whether a conviction is unreasonable, it does so within the context of, and by reference to, “the features of that evidence that support [the] respective cases on appeal” and not “by simply reconsidering the parties' respective cases at the trial”: The King v ZT [2025] HCA 9 at [11] (‘ZT’). It follows that “it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not”: ZT at [12]. I now turn to the “aspects of the evidence” that were argued by the applicant to warrant a conclusion that the jury’s verdicts were unreasonable.
The applicant argued that it was not reasonably open for the jury to convict him and advanced five matters that alone, or by combination, were said to warrant that conclusion.
The five matters raised were that:
it was “not open to [the] jury to reject the evidence of the applicant beyond reasonable doubt”;
the messages exchanged between the applicant and the complainant could plausibly have “been interpreted by the applicant, as the complainant having a sexual interest in him”;
the CCTV footage from the hospital and the evidence of the hospital staff “assisted the applicant”;
the expert pharmacological and toxicological evidence called by the Crown “did not definitively rule out the plausibility of the defence case”; and
the applicant “also received a good character direction, which the jury were entitled to consider”.
I do not accept the applicant’s submissions. In my view, none of the matters – whether considered alone or in combination – had the consequence contended for by the applicant. Having undertaken a review of all the evidence, including its sufficiency and quality, I do not find that the jury’s verdicts were unreasonable: it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty, as I will explain.
The applicant made two overlapping arguments relating to his evidence. The first argument was that the Crown case at trial laboured under the “significant difficulty” that it was “only the applicant [who] gave evidence of any meaningful recollection of what happened on 12 February 2020” and that he gave “an exculpatory account that withstood cross-examination”. The second argument was that, given the applicant's evidence (particularly in relation to consent) was “cogent and plausible”, it was not open to the “jury to reject the evidence of the applicant beyond reasonable doubt”. This last argument, at least in part, reflects the applicant’s overall contention that the jury’s verdicts were unreasonable, and was informed by a range of factors, including what the applicant argued was the complainant’s demonstrated sexual interest in him. However, it involved, at least implicitly, a narrower argument: that the applicant’s evidence was, of itself, of such a character that it was not open to the jury to reject it.
Before dealing with these arguments, a preliminary observation should be made and, thereafter, the legal framework for their consideration must be identified.
First, given the applicant’s arguments, it is relevant to note that the trial judge gave the jury conventional directions on the onus and standard of proof and also gave a ‘Liberato direction’ that was appropriate and clear. A direction of that last kind “serves to clarify and reinforce directions on the onus and standard of proof” where there are competing versions of events: De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [10]-[11]. As earlier noted, the “competing versions” related to the key issue at trial – being the issue of knowledge.
Secondly, in an appeal concerning a conviction for a sexual assault involving a complainant and an accused, the function of the Court, when determining whether the verdicts of the jury are unreasonable, “proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable”: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39] (‘**Pell’). This assumption recognises that the assessment of “the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community” and, in this respect, that the “jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses”: Pell at [37]. An appeal court should not, “generally speaking…seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box”: Pell at [37]. It follows, therefore, that if the jury’s verdicts are to be disturbed, that is a consequence not from “the evaluation of the witnesses in the witness-box” but from an examination of the record to determine whether, notwithstanding the assessment of the complainant’s evidence “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”: at [37] and [39].
Relatedly, in connection with the applicant’s evidence that the reason he did not call an ambulance was because the complainant told him by telephone at 3:24am that she did not need one, the applicant was squarely challenged about these matters during cross-examination. For example, it was put to the applicant that he did not make any mention of the complainant telling him she did not need an ambulance in the “note” that he prepared following their sexual encounter (which the applicant accepted). It was further put to him that the reason why there was no mention of such a conversation is because that was “something that you've come up with now to explain why you didn't get her medical attention immediately” (which the applicant disputed).
The applicant’s evidence on this issue was firmly challenged in cross-examination – in particular, the applicant’s suggestion that what he observed was not “legs” buckling but only one leg (the right leg) doing something less than “buckling”. The applicant’s explanation, when taken to his “note”, was that it “wasn’t detailed” and that he “didn't do a spell check on it, the S might've popped in there”. It should be noted that, later within the “note”, the applicant also referred to “knees kept buckling”.
Further, it should also be noted that the applicant sent messages to the complainant at 8:54pm on 16 February 2020 and 4:02pm on 18 February 2020 where he described the complainant’s “legs [as having] kept buckling” and “legs buckling” respectively – that is, prior to sending the “note” message at 4:16pm on 18 February 2020.
The Crown’s submission that there were difficulties with the applicant’s evidence which undermined his and its credibility and reliability should be accepted. It follows, assuming the correctness of the applicant’s approach, that there is nothing in the applicant’s evidence that I consider should have led the jury to entertain a reasonable doubt on the issue of knowledge and therefore as to the applicant’s guilt.
The second matter that stands against acceptance of the applicant’s submissions is that, as earlier noted, consideration of the evidence on the knowledge issue requires examination of the court record, particularly given the Crown’s case on this issue was essentially a circumstantial one. When regard is had to all the evidence at trial, including those matters advanced by the applicant as demonstrating that the verdicts of the jury were unreasonable (and which are addressed in what follows), they provide no basis to conclude that the jury should have entertained a reasonable doubt as to the applicant’s guilt.
The applicant submitted that the messages that he and the complainant had exchanged, especially those on 11 February 2020, “could have plausibly been interpreted by the applicant as the complainant having a sexual interest in him” and that when “all of the messages were read as [a] whole, the complainant did have sexual feelings for the applicant”. The applicant further submitted that there was an “escalation in the sexual talk between the applicant and the complainant”, that demonstrated a “fluidity” in the boundaries between them and supported the plausibility of the applicant interpreting the complainant as having a sexual interest in him.
In aid of these arguments, the applicant’s written submissions relied upon the fact that, when the applicant sent the complainant a video of him masturbating on 11 February 2020 at 9:55pm, the complainant’s response included: “Nice to know you were that excited talking to me…”. The applicant further argued that it was significant that the complainant did not express any disgust at receiving the explicit messages or indicate that she did not wish to receive communications of that kind but, rather, made a “comment” about the photograph and the video. His written submissions also contained an extract from the applicant’s submissions to the jury that contained the messages exchanged after the applicant earlier sent a photograph of his penis to the complainant at 9:28pm.
During submissions, the applicant’s counsel took the Court to several messages exchanged with the complainant that involved discussions about sex toys, masturbation and sexual talk.
The exchange of messages clearly demonstrates that there were occasions, perhaps many occasions, when the messaging was of an explicit sexual nature, as the applicant argued. I am nevertheless unable to accept that the messages demonstrate that the complainant was prepared to act upon any sexual interest she might have had. The applicant, it should be noted, did not suggest that there was contained in any message any suggestion by the complainant of what she wanted to do with him, or have him do to her. Nor do I accept that the messages demonstrate fluidity in the “boundaries” set by the complainant. My reasons for these conclusions follow.
First, although it may be accepted that the complainant was prepared to engage in what was described in submissions as “sexual banter”, she also identified – repeatedly – her boundaries: she was not interested in having a sexual relationship with a married man. The applicant indicated as much on multiple occasions. Some examples of those occasions include (emphasis added):
2 January 2020: after some brief messages, the applicant indicated in a message sent at 12:56pm: “I’m here if you need hugs. [My wife] gets tired of me wanting to hold onto her all the time. It kinda makes me feel better, and I don’t think she understands…”. The complainant responded at 4:20pm: “I have no issues with hugs ever, I’m a very affectionate person…
At 12:12am, the applicant replied again and said that he did not wish to make the complainant “uncomfortable, I’m happy to keep it all at what ever [sic] level isn’t going to freak you out”. The complainant replied at 12:15am that “talking like this I’m fine with”.
Despite the above exchange, the applicant persisted, sending a message at 6:54am which said that he thought they had a “connection” and that he would “love the chance to snuggle with you at some stage, if you’re ever comfortable with that. I believe there’s definitely an attraction there…”. The applicant then sent the complainant two further messages at 7:54am and 8:37am following which, at 8:43am, the complainant responded and advised that she had “been awake for quite a while now… I’ve read your text… there’s not much I can say really, I’ll just take it all in, I appreciate your honesty…”.
“I don’t command…
There’s nothing u can do that I will like more or any less because thats where I’m at.. I was honest and told how I felt because you are married and about what I do when necessary and also told you about the guy who doesn’t live here that didn’t work out last year that crushed me…we still keep in contact and see each other when possible, and I still have feelings for this guy..I don’t want to upset or hurt you in any way but I cannot give you what it is your [sic] after..”.
The applicant then sent a series of further messages to the complainant including “thanks for explaining (again)” (at 7:45pm); that he was a “self centred stupid dope that always looks for something that will make ‘me happy’ at the expense of everyone else. I can’t take a hint…I’m sorry I was so pushy” (at 8:25pm); and “I read too much into everything” (at 8:27pm).
| 7 Feb 2020 18:11 | Complainant | I'm sorry but knowing how you feel it puts me in an uncomfortable position and I don't want or like that.. I don't want to feel like I owe you anything either.. | | 7 Feb 2020 18:11 | Complainant | I like our friendship.. sorry if that sounds shite | | 7 Feb 2020 18:12 | Applicant | That's ok, I've had worse rejections lol. A lot worse | | 7 Feb 2020 18:13 | Complainant | Its not about rejection.. its about my boundaries as far as married men go**.** | | 7 Feb 2020 18:13 | Applicant | I can respect that |
| 7 Feb 2020 23:44 | Applicant | Sorry it’s disappointing. | | | Complainant | [responds with a ‘thumbs down’ symbol] | | 7 Feb 2020 23:44 | Applicant | [sad face emoji] | | 7 Feb 2020 23:46 | Applicant | Ok, I’m going to leave you alone and watch the rest of this movie. Watching Resident Evil | | 7 Feb 2020 23:46 | Applicant | Good night paralytic [first name of complainant] x | | 7 Feb 2020 23:46 | Applicant | It's been fun | | 7 Feb 2020 23:48 | Complainant | It’s not any of those things...it’s just me as a person being honest with a guy... | | | Applicant | [responds with a smiling emoji with love heart eyes] | | 7 Feb 2020 23:52 | Complainant | Para [first name of complainant] can't do a thing lol Except laugh talk maybe | | 7 Feb 2020 23:52 | Applicant | And hug and cuddle and touch. That's more than enough | | 7 Feb 2020 23:53 | Applicant | I love being touched, I never was growing up. I craaave it | | 7 Feb 2020 23:55 | Complainant | And then it leads to more Then expectations And black mail Guilt Resentment Hatred Jealousy Etc | | | Applicant | [responds with a ‘thumbs down’ symbol] | | 7 Feb 2020 23:55 | Complainant | I've been there Matt.. | | | Applicant | [responds with a sad face emoji with a single tear] | | … | | 8 Feb 2020 00:00 | Applicant | I'm not going to try to talk you into it. I like talking to you. You know I like sharing pics. If you want to hug and stuff you know I’m open to it. If you don’t then it just doesn’t happen | | … | | 8 Feb 2020 00:04 | Complainant | Same... u married, my boundaries and I've never thought of you like that**..** I have male friends I see plus just ones I stay in contact with from my training days and just male friends... guys don't like that shit | | | Applicant | [responds with a sad face emoji with a single tear] |
“Nothing wrong at all with this pic either.. I don't pretend who I am usually.. I still cannot fully be myself around you because regardless of everything you are married/living with your wife/in a relationship and I'm not going there... Ive [sic] already told you that many times.. if I was drinking or not drinking with someone I knew I could potentially be with it would be so different”.
The applicant persisted despite this message. At 9:42pm, he said that he could “come round now, and see you if you’d let me in”. The complainant’s response at 9:43pm was: “your [sic] missing the point I think”, after which there was the following exchange:
| 11 Feb 2020 21:44 | Applicant | Probably. I'd still like to hold you while your being "yourself'. Your unrestrained self | | | Applicant | [responds to his own message with a gasping face emoji] | | 11 Feb 2020 21:48 | Complainant | nice.. but you can't | | 11 Feb 2020 21:48 | Applicant | To see how unrestrained [complainant’s first name] kisses would be nice | | 11 Feb 2020 21:48 | Complainant | Well of course there freakin good but you are with someone and I will not do that… | | | Applicant | [responds with a sad face emoji with a single tear] | | 11 Feb 2020 21:49 | Applicant | That's a shame. I'd love to taste your lips. They look delicious… | | 11 Feb 2020 21:49 | Complainant | I've made mistakes before and will not go there again**..** | | | Applicant | [responds with a ‘thumbs up’ symbol] |
“Pros/cons:
Pros: I've only fucked 3 chicks (I'm clean), I've had a vasectomy (I can fuck bareback), I looooove eating pussy & am REALLY good at it, you don't have to pretend who you are with me, I'm game to try anything you want to do (no inhibitions), in relationship where o [sic] have been told I can do what I want with who I want as long as I don't tell her.
Cons: in relationship”.
The complainant’s responses, sent at 10:31pm, were: “Stop right there!!!!” and “I cannot get past the 3rd line”. The complainant’s evidence was that the reference to the “3rd line” was a reference to the fact that the applicant was “in a relationship”. The applicant’s evidence was that this was how he understood the complainant’s response – that is, he understood the message to mean that the complainant “couldn’t get past that con that [he was] in a relationship”.
Further, as earlier noted, the applicant acknowledged in the pretext call on 9 March 2020 that, in the “month leading up to [the] night”, the complainant kept on saying that she “didn’t want to be with a married person”.
Secondly, in my view, there is considerable force to the Crown’s submission that, viewed objectively, the messages reflect the applicant pushing the boundaries of the friendship, with the complainant not wishing to offend a friend who had a sexual interest in her.
Thirdly, the messages demonstrate that the applicant knew that the complainant was more likely to engage in “sexual banter” with him when she consumed alcohol, and subsequently encouraged her to drink alcohol. For example, after the complainant restated her boundaries (“as far as married men go”) to the applicant on 7 February 2020 and the applicant responded that he could “respect that” and would “keep it g rated from now on” (which the complainant acknowledged with a “thumbs up” symbol), there was the following exchange:
| 7 Feb 2020 22:02 | Complainant | Playing music, texting, watching Netflix. texting, making drinks.. answering messages, washing make up off etc. will shower soon.. probs should go to bed | | 7 Feb 2020 22:02 | Applicant | That's a shame | | 7 Feb 2020 22:02 | Complainant | Shame for what | | 7 Feb 2020 22:03 | Applicant | Was hoping you'd finish that bottle rather fast | | 7 Feb 2020 22:03 | Applicant | Drink [complainant’s first name] is fun | | 7 Feb 2020 22:03 | Applicant | Drunk | | 7 Feb 2020 22:04 | Complainant | Why... u want me to sleep in the lounge again | | | Applicant | [responds with a ‘thumbs up’ symbol] | | 7 Feb 2020 22:04 | Applicant | Lol. You know me, ever hopeful | | 7 Feb 2020 22:05 | Applicant | Thought you might get just drunk enough to let me in for an hour or so and relax those pesky boundaries for a little while |
Fourthly, it is evident that the applicant regularly suggested attending the complainant’s house. At trial, the Crown submitted to the jury that there were about 20 such “offers” in the period from January to 12 February 2020 – but that she either rebuffed or avoided the applicant’s suggestions.
Fifthly, the applicant accepted that he had developed something of an obsession with the complainant – something that led him, on 29 January 2020, to be parked near the complainant’s home, which was “not near [his] home”, hopeful that he might have “been able to drop in”. That the applicant did become “a bit obsessed” tends to undercut, in my view, the submission that the messages bear the objective characterisation argued by him.
It follows, for these reasons, that I do not consider that the messages exchanged between the applicant and the complainant bear the characterisation argued by him. Further, I do not consider that the matters argued by the applicant relating to the messages that were exchanged should have led the jury to entertain a reasonable doubt on the issue of knowledge and therefore as to the applicant’s guilt.
The applicant next argued that the CCTV footage from the hospital and evidence from the hospital staff “assisted the applicant”. It was submitted that the CCTV footage “suggests that though the complainant was affected by alcohol and medication, she did not appear obviously disorientated”.
The CCTV recording of the applicant and complainant attending the hospital was played to the jury and tendered.
It may be accepted that the footage shows the applicant acting tenderly towards the complainant (who, it should be emphasised, did not then know about the sexual acts that had occurred) and that the complainant was, as the applicant accepted, still showing signs of being affected by the alcohol and medication (evident from the way she was walking and the applicant providing assistance to her). However, I am unable to accept that the footage positively assists the applicant’s case merely because the complainant was not manifesting signs of obvious disorientation, and should have led the jury to entertain a reasonable doubt as to the applicant’s guilt. That is for the following reasons.
First, the footage is of the applicant about three hours after the sexual acts occurred and, even then, the applicant accepts that the complainant was still displaying signs of being affected by the alcohol and medication.
Secondly, I have not overlooked the evidence from Clinical Nurse Specialist Borger, who was on duty in the emergency department of the hospital as the triage nurse at the hospital on the morning of 12 February 2020, and who met with the complainant when she attended. Nurse Borger had no independent recollection of dealing with the complainant but completed triage notes and recorded in them that the complainant’s attendance arose out of concerns that the complainant had overdosed on Ativan. She obtained a history that the complainant had consumed:
“[h]alf bottle Jameson, and three to four premix drinks. Has taken 7.5 milligrams Ativan, and normal dose of regular Effexor at unknown time”.
“Sometimes it can be quite difficult to ascertain if people are intoxicated, under the influence, and in mental health presentations as well. Sometimes it's very difficult to get a clear picture of what's going on”.
Thirdly, there was other evidence in addition to that from Nurse Borger that was relevant to the jury’s assessment of the materiality of the CCTV footage from the hospital. For example:
The complainant’s sister, Deborah Weinert, gave evidence that she spoke with the applicant by phone whilst he and the complainant were waiting to see “the doctor”. Her evidence was that the applicant told her that the complainant’s “state” at that time:
“…was very confused, and she was unaware of what had happened to her…she was very confused and unaware of what had happened apart from the drinking and the pills”.
“My next memory was in the hospital I’m laying on a bed and a lady, it was obviously a nurse, sticking sticky things on my chest”.
Further, although the complainant recalls seeing two people “in [her] head” and being told that they were from the mental health team, there was nothing else that she recalled about being in hospital at that time, nor did she recall leaving the hospital and going home.
The applicant, in a message that he sent to the complainant on 13 February 2020 about her attendance at the hospital, told the complainant that she did not sleep on “the floor at the hospital” and that he “made sure you stayed [on] your feet”.
This additional evidence, by way of illustration, was relevant to any inferences to be drawn from the CCTV footage relating to the complainant’s physical and psychomotor presentation at that, and at any earlier, time.
It is for these reasons that I do not consider that what is shown in the CCTV footage provides any basis to find that the jury should have entertained a reasonable doubt on the issue of knowledge and therefore as to the applicant’s guilt.
The applicant argued that the complainant “was not so obviously affected by alcohol that the applicant would have had a reason to doubt her ability to give consent” and relied upon aspects of the evidence of Dr Fu. The applicant contended that, although “aspects of the forensic evidence” assisted the Crown case, Dr Fu “did not definitively rule out the plausibility of the defence case”. The applicant’s essential argument was that the evidence given by Dr Fu during cross-examination went some way towards “neutralising the adverse impact of the forensic evidence”, with the consequence that “the Crown could not negate the evidence of the [applicant] beyond reasonable doubt”.
In relation to this argument, the applicant’s written submissions relied upon aspects of Dr Fu’s cross-examination, and argued that there were “extracted a lot of favourable concessions from the applicant’s perspective”. The applicant identified four areas in the cross examination of Dr Fu that were said to negate the “adverse impact of the forensic evidence”.
I do not accept the applicant’s submissions. Before dealing with each of the areas of Dr Fu’s evidence as relied upon, and to give context to the applicant’s arguments, it is necessary to briefly summarise the key aspects of Dr Fu’s evidence.
Dr Fu’s evidence concerning the forensic analysis of the complainant’s blood was that the benzodiazepines detected in it were lorazepam, which is a “sedative and hypnotic medication”. This was the drug Ativan. The venlafaxine was an antidepressant medication that commonly goes by the brand-name Effexor.
Dr Fu later described lorazepam as a drug used “as a hypnotic sedative” and, specifically, as a “very potent sedative”. Dr Fu described it as being used as a pre-surgical medication because it is a strong sedative that produces central nervous system depression, including “sedation, impairment of psychomotor performance, memory and cognitive function”. Later in her evidence, Dr Fu reported that patients who overdose display lethargy and/or unconsciousness, and that an overdose “is usually manifested by degrees of central nervous system depression ranging from drowsiness to coma”, but that, in mild cases, “symptoms include drowsiness, mental confusion and lethargy”.
Dr Fu’s evidence was that the complainant was likely to have consumed two to three tablets, with each tablet having a 2.5 milligram dose.
Regarding memory, Dr Fu referred to a study that reported that a 5 milligram oral dose of lorazepam produced increased sedation and anterograde amnesia, with the amnesia lasting between approximately eight to ten hours. She referred to a further study which reported that a 7.5 milligram dose produced anaesthesia, followed by pronounced amnesic effects lasting from eight to 24 hours. Dr Fu’s later evidence was that lorazepam produced “intense amnesia”. She also indicated that lorazepam was absorbed quickly and that the effects of the drug would be felt within 30 to 60 minutes.
Dr Fu explained that alcohol and benzodiazepines (including lorazepam) work on the same “brain location, that they call the…[GABAA] receptor” and that their effect is not merely additive, but multiplicative. Dr Fu described this as a “synergistic sedative effect”. Dr Fu also referenced another study that reported on the interaction of alcohol with benzodiazepines and noted that the combination “can lead to enhanced anxiolytic sedative and hypnotic effects, and also augment unwanted effects such as drowsiness, confusion, amnesia and impaired coordination”.
Having regard to the toxicology results of the complainant’s blood alcohol concentration at 7:20am on 12 February 2020, the known consumption of alcohol by the complainant, and the time of her last drink (being at around 3:00am), Dr Fu calculated the complainant’s blood alcohol concentration at 3:30am as 0.137g per 100mL of blood and, at 6:30am, as 0.092g per 100mL of blood. Dr Fu expressed the opinion that, whilst the complainant was not a heavy drinker, she assumed that the complainant did “drink quite frequently”, but that she would have been “at least moderately, maybe significantly” affected by the level of alcohol.
In relation to the “synergistic effect” of the alcohol and the lorazepam, Dr Fu expressed the opinion that the complainant “would [be] significantly sedated by these drugs” at around the time of the offending. In relation to physical impairment, Dr Fu expressed the opinion that any physical impairment was “definitely above moderate”, but “mainly from lorazepam”, because it causes ataxia (loss of balance).
Having summarised Dr Fu’s evidence, I turn now to address the four parts of Dr Fu’s evidence that the applicant argued “could not negate the evidence of the [applicant] beyond reasonable doubt”.
First, the applicant relied on part of Dr Fu’s evidence to argue that the complainant was only moderately affected by her ingestion of medication and alcohol at the time the applicant attended the complainant’s home, as follows:
Q. So does that mean, at the time of 6.30, that's when she is, so far as your opinion is concerned, most significantly affected by the drug?
A. At 6.30 -no, no, it's not most significant effect. I'm saying, around the time
- because in this case, I don't really know exactly what time she actually put in
her mouth of the lorazepam, so definitely around 3.30 that - she stated, but the
updated information this morning give me, like, an indication she might take it
before 1 or 2 o'clock, so then the peak effect of lorazepam would achieve actually around 3am, so from 3am, the lorazepam effect gradually decrease.
The sedative effect gradually decrease. By 6.30, at that time, we can tell her
physical skill only. She impaired, but it is not, like, substantial impaired or - before I watching this footage, I thought she might fall sleep and lost consciousness at four tablets if she ingested four tablets. Afterwards this footage and I feel, maybe she didn't take four tablets and maybe she didn't impair that significantly at 6.30.
Q. So the watching of the footage changed your opinion about the level of her
impairment that you had assumed or opined in the first report. Is that correct?
A. Yes, that's right. Yes.
Q. And after having had a chance to look at the footage, you came to the
opinion that she was less significantly impaired than you had first opined. Is
that right?
A. Yes.
In my view this evidence does not support any concession on the part of Dr Fu in the way argued. Rather, Dr Fu was distinguishing between two points in time, being at 3:30am (being just before the time the applicant attended upon the complainant’s home) and 6:30am (being when the applicant and complainant arrived at the hospital). Dr Fu’s evidence was that the extent to which the complainant was affected was more significant around, or from, 3:00am and that the effects of the lorazepam “gradually decrease”.
To the extent this distinction is not apparent from the evidence relied upon by the applicant it is, in my view, apparent from the evidence that she gave immediately before and after the evidence relied upon by the applicant. Thus, the evidence Dr Fu gave immediately before that relied on by the applicant was:
Q. If we look at the footage, which is at 6.30 in the morning—
A. Yes.
Q. --of the complainant's movements, does that give us then a pretty good idea about how she may have presented about 4 to 5am that morning?
A. She definitely worse before, because the drug been taken before 3am and when they reached the peak after, say, in 90 minutes, and then the effect gradually decreasing, so at 6.30, definitely affected less significant than an hour or two hours before.
Q. And in terms of physical impairment, I think your opinion remains that the combination of the alcohol and the lorazepam would have made her moderately to significantly physically impaired. Is that right?
A. You mean 6.30 or 3.30?
Q. I beg your pardon. Perhaps at 3.30.
A. 3.30, I - I still opine she would significantly impaired because the level of alcohol and the level of lorazepam.
Q. So you were firm on memory impairment, but somewhat less firm on whether she was physically impaired; is that fair?
A. Yes, not as firm, because all these factors, but I still believe she - yes, she’s impaired significantly at 3.30, but 6.30, yeah, because I can see the footage, she - with assistance, she can still walk, and, like, she can talk. So all this, I think, by that time, is moderate.
Q. But at around 3.30 or shortly thereafter, she could also have been moderately impaired by virtue of the synergistic effects of those two drugs, yes?
A. 3.30 it’s unlikely moderated, because 3.30, by the drug level by that time, is much higher than 0.02, and her alcohol is 0.137, plus the effect is synergistic. I believe her impairment would significant on 3.30, but three hours later, because drug level decrease, and - but I didn’t give, like - I know what you - like, really firm, like, memory, compare that, I’m not as firm, correct, yes.
Q. So that means, doesn’t it, there’s a possibility she may have been moderately affected at around 3.30 in the morning; that is, you can’t rule that out on the evidence that you’ve seen?
A. I understand what you mean now, yes. I think yeah, you’re right. Based on the footage and the toxicology and, like, all these paragraph are based on and my opinion in the report I write, yeah, that’s right, but as I explain, I still believe at 3.30 she would be significantly - like, probably significantly impaired, and it gradually decreased to moderate by 6.30. Yeah, you’re right, I write that sentence exactly, but I explain now, I believe by that time, based the toxicology, and I still consider the footage, everything, and I still think 3.30, she probably impaired significantly, because the two drugs and they work on the same receptor.
Q. Using that terminology that you’ve used, “probably”, that leaves open, doesn’t it, a possibility that she wasn’t significantly impaired at that point. Would that be fair?
A. Probably. I just think it’s more than 50 – like this was – is not likely – is higher than may, like than possible the probability is more.
Q. I guess I put it another way, you can’t rule out the possibility that she may have been moderately affected?
A. Not - yes, correct, because I – I wasn’t there and I – all this, I just based on the toxicology and all the information provided to me. Yes, I can’t rule out she was moderately affected at 3.30, yes, but I still believe is likely or probably.
In my view, this evidence does not support the unequivocal concession of the kind argued by the applicant. Again, that is apparent from the terms of the evidence where Dr Fu repeatedly said that, in her opinion, the complainant would be significantly impaired at 3:30am but that “it gradually decreased to moderate by 6.30”.
Fourthly, the applicant argued that Dr Fu could not “rule out as a possibility” that “the complainant could engage in some of the sexual acts that [the applicant] said she engaged in on 12 February 2020”. In this respect, the applicant relied upon the following evidence:
Q. But in terms of your analysis, you can't rule out [the applicant's] observations of the complainant…that you've noted in your report between those hours of three – 3.45am and 6.30am. Is that right?
A. Yeah, I can't rule out that. I – I – I can’t rule out anyone provide me the information. I accept that’s all correct.
Q. Yes.
A. Yeah.
Q. And I think you gave an opinion that it was unlikely that she'd be able to sit up and take her underpants off. Do you remember saying that?
A. Yes.
Q. Your opinion was it was unlikely. But that doesn't rule out that it possibly happened, does it?
A. Yes. Not totally excluded, yes.
Q. And you also said that her ability to grab his head and pull it into her genitals, that was unlikely. But that doesn't rule out the possibility that that could have happened, does it?
A. Yes, yeah.
Q. And you gave an opinion about whether she was able to roll over and grab her buttock and spread it, and you said “unlikely”. But it's also possible, isn't it, that that could have happened?
A. Yes. So “unlikely” means I can't rule out the possibility 100%, but it is not likely - yes, the percentage is less, but I can’t 100% exclude it.
The essential argument put by the applicant was that because a particular matter could not be “ruled out”, or because a possibility could not be ruled out, the Crown could not “negate the evidence of the [applicant] beyond reasonable doubt”. I do not accept this argument, for the following reasons.
First, the extent to which the complainant was impaired at the time of the sexual acts was an issue of fact that was informed by other evidence, not merely Dr Fu’s evidence. There was a considerable body of evidence – independent of Dr Fu’s evidence, but corroborative of it – that the complainant was, as the Crown submitted, grossly physically and mentally compromised, including the following:
The complainant’s evidence about the symptoms she would experience from the ingestion of Ativan when taken at her usual or prescribed dose.
The degree to which the complainant was intoxicated from alcohol on the evening on 11 February 2020, and into the early hours of 12 February 2020.
The evidence from Stuart Burton that, when talking to the complainant over a video call at 12:53am on 12 February 2020, she was “very emotional” and “didn’t make a lot of sense”; that she was “quite intoxicated” and “all over the place”; and that she “was almost crying” and, at one point, “she cried…so she was quite emotional”.
The call to Stuart Burton, and the message left for him at 3:08am, namely “Please I NEED HELP. CALL 000”: see [44], above.
The content of the voicemail messages that the complainant left after attempting to contact her sister at 3:11am and 3:16am seeking help: see [45], above.
The complainant’s messages to the applicant, including “I need help” and “I call ambo me think pleE siri”: see [46], above.
The complainant’s evidence about her condition, including the physical symptoms she experienced, specifically that:
(a) she felt like her heart “was coming out of my chest. It was pumping really fast, and started to scare me”; (b) she had “terrible cramps…enough to buckle me over in my stomach”; (c) she experienced dizziness; (d) she remembered that her “legs felt paralysed”; (e) she was on the floor in her bedroom in a foetal position and was screaming out to, and seeking help from, her neighbour; (f) she “couldn’t move [her] legs” and had to crawl under her bed to grab her phone because she recalled thinking: “I need to call someone. I need help”. The complainant also remembered the applicant arriving and, at that time, she was “still crying out in pain, making noises”; (g) she remembered telling the applicant that she had “taken too many Ativan tablets”; (h) she recalled saying to the applicant that she “wanted to get to the hospital ‘cause [she] thought something bad was going to happen”; (i) the applicant, even on his version of events, assisted the complainant to dress (he put her feet in her underpants and pants); (j) the applicant had to talk to the complainant to keep her awake during the drive to the hospital – he “was just talking to keep her awake”; and (k) the complainant’s significantly impaired memory.
(a) that after receiving the messages from the complainant, she telephoned him and told him that she needed help (the applicant gave evidence (which was challenged) that the complainant told him an ambulance was not required: see [124](3), above); (b) the applicant hearing the complainant “howling” whilst he walked up the footpath to her house; (c) that when the applicant arrived at the complainant’s house she was on the floor near her bed; (d) that the “bedding wasn’t on the bed at all” and there were items on the bed – a fan, a clock and another item – all of which appeared to have been knocked over; and (e) that he was concerned for her because she “clearly needed some assistance”.
Deborah Weinert’s evidence that, when she spoke to the applicant on the complainant’s phone whilst they were at the hospital, the applicant told her that he found the complainant “in her room not in a very good condition” and that she was “on the floor…she was very drunk”.
Secondly, it is important to emphasise aspects of Dr Fu’s evidence upon which there was no concession and no moderation by her. For example, when cross-examined about her evidence that it was “impossible” for the complainant to “roll back over, lift her legs up and tell the [applicant] to fuck her” (which relates to count eight), Dr Fu maintained that “I still don't believe she can lift up her leg. Legs” and, later, “I don't believe she could lift up her legs”. When it was suggested to Dr Fu that the applicant’s version that the complainant lifted her legs in the way suggested could not be ruled out “as being completely impossible”, Dr Fu’s evidence was that it was “impossible”.
Thirdly, the utility of a “concession” from a witness that it is “possible” that a state of affairs existed contrary to a witness’s evidence is, in and of itself, of limited significance. There are a range of degrees of likelihood potentially covered by the word “possible”. Further, that something cannot be excluded or is a possibility does not mean that it is a reasonable possibility. In my view, Dr Fu’s evidence confirmed as much.
Two character witnesses were called at trial in the applicant’s case. The officer in charge of the investigation gave evidence that the applicant had no prior criminal history. The trial judge gave the jury a good character direction in conventional terms. No complaint is made about that direction.
The applicant’s argument in written submissions was simply that “…the applicant also received a good character direction, which the jury were entitled to consider”. The applicant said little about this argument in submissions and, to the extent that it was mentioned, that argument was not developed.
The fact that the applicant was a person of good character does not, on its own or in combination with any matter raised on his behalf, provide a basis to find that the jury should have entertained a reasonable doubt as to the applicant’s guilt. Further, as the Crown submitted, the applicant said during the pretext call that what he had done was “out of character” for him. Thus, even accepting his good character, it remained open to the jury to find that, on 12 February 2020, it was out of character for the applicant to act on his admitted sexual interest in the complainant, when the opportunity to do so arose.
In my view, the good character direction was not capable of overcoming the weight of evidence demonstrating that the applicant knew that the complainant was not consenting in one or more of the ways required to any sexual acts.
Contrary to the applicant’s overall argument, there was, in my view, a considerable body of evidence that was open to be accepted by the jury which demonstrated: that the complainant was grossly physically and mentally compromised when the applicant first attended the complainant’s house in the early hours of 12 February 2020, and remained so compromised when the sexual acts and intercourse occurred; that given the complainant’s compromised physical and mental state, her clearly defined boundaries (in the sense earlier discussed) and the reality that the complainant did not express her desire to sexually engage with the applicant during their sexualised messaging, the complainant did not consent to the sexual acts and intercourse; and that the sexual acts and intercourse occurred when the applicant knew that the complainant was not consenting to them, and in each of the ways available to prove that element.
To be clear, independently of the jury’s rejection of the applicant’s version, there was (as set out earlier in these reasons) a substantial body of evidence available for the jury to conclude beyond reasonable doubt that the applicant knew that the complainant was not consenting and that there were no reasonable grounds for any belief that the applicant may have held that the complainant freely and voluntarily, and therefore consensually, engaged in the sexual acts and intercourse with him.
Having undertaken an independent assessment of the evidence, including its sufficiency and quality, none of the matters raised by the applicant, or their combination, are such as to lead me to experience a (reasonable) doubt about the issue of knowledge and, therefore, given the trial and appeal issues, a (reasonable) doubt about the applicant’s guilt. It follows that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.
For the above reasons, I propose the following orders:
Extend the time for the filing of the notice of appeal to 21 December 2024.
Grant leave to appeal.
Dismiss the appeal.
McNAUGHTON J: I have had the benefit of reading the draft judgment of Chen J. I am of the view, having reviewed the record of the trial for myself, and for the reasons given by Chen J, that it was well open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. I agree with the orders proposed by Chen J.
**********
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66.
Withers
R [2025] NSWCCA 67
(2022) 274 CLR 651
(2019) 268 CLR 57
(1985) 159 CLR 507
(1994) 181 CLR 487
(1987) 163 CLR 454
(2020) 268 CLR 123
(2011) 243 CLR 400
(2016) 258 CLR 308
(2020) 267 CLR 654
(2007) 230 CLR 559
(2022) 96 ALJR 728
The applicant relied on the sexualised content of some of the messaging between the two. However, this evidence was of little moment in circumstances where the complainant repeatedly rebuffed the applicant’s suggestions of engaging in sexual acts with him and deflected or rejected his offers to visit her at her home. This evidence is set out by Chen J. The complainant stated her boundaries with clarity on many occasions in those messages and did not waiver even when she was content, as she was entitled to be, to continue with the “sexual banter”. A significant exchange of messages is set out by Chen J at [131].
Further, there is no doubt that, when he committed the sexual acts forming the basis of the counts on the indictment, the applicant knew that the complainant was heavily intoxicated with liquor and prescription drugs. The knowledge of the extent of that intoxication was established by the applicant’s own descriptions of the complainant’s appearance and conduct when he arrived at her home. The messaging late on the night of 11 February 2020, the last of which was at 11:10pm, showed that the applicant knew the complainant had been drinking. Those messages also provided evidence of the applicant’s strong desire to escalate the sexual side of the relationship from flirtatious communications to actual sexual contact. They provided another example of the complainant tolerating or enjoying the sexual repartee but drawing a line at engaging in actual sexual contact with the applicant.
The next series of messages, or attempts to call, is set out by Chen J at [46]. The complainant was in distress and sought the applicant’s help. The final message at 3:22am read “I call ambo me think pleE siri”. The applicant’s evidence about his lack of understanding of that communication was implausible and possibly disingenuous.
At 3:11am and 3:16am, the complainant left two voice messages with her sister. These messages, while not known to the applicant on the morning of 12 February 2020, supported the case that the complainant was extremely distressed and affected by alcohol and drugs at that time. The applicant arrived at the complainant’s home, in response to her plea for help, around 30 or so minutes after the messages to her sister.
Chen J has set out more of the evidence proving the complainant’s compromised condition at [171] and has analysed the evidence of the pharmacologist in some detail. It is true that the pharmacologist could not rule out absolutely some of the propositions put in cross-examination, but her expert evidence was merely one part of the circumstantial case relevant to both the issue of consent and the state of the applicant’s knowledge.
There can be no doubt that the applicant knew the complainant was greatly affected, if not disabled, by liquor and prescription drugs at the time the sexual acts occurred. He also knew she had communicated many times that she would not have sexual relations with him because he was married. These two aspects of his knowledge amounted to potent evidence that the applicant was reckless as to whether the complainant was consenting.
While I would exercise caution in drawing inferences on this basis, it is something of a mystery as to why the applicant showered the complainant (twice) rather than taking her to the hospital immediately, and why it took him around a week to provide her with a full narrative of their sexual encounter.
I have taken into account the undisputed fact that the applicant was a person of good character. This impacts on both the question of his guilt – in that a person of good character may be less likely to act recklessly as alleged by the prosecution – and the issue of his credibility. Even so, it was open to the jury to reject critical aspects of the applicant’s evidence and especially his account that he only came to realise that the complainant did not consent, or that she might not have consented, after the event. Similarly, it was open to the jury to be satisfied beyond reasonable doubt that the elements of the offences were established beyond reasonable doubt despite the evidence of good character. As Chen J emphasises at [176], the Prosecutor at trial relied on the evidence, recorded in the “pretext call”, that the applicant told the complainant that he acted out of character at the time of the sexual encounter.
The respondent demonstrated that there were several issues upon which the applicant’s account of his state of mind were challenged. It was open to the jury, acting reasonably and considering the whole of the circumstantial case, to reject the applicant’s version and to do so beyond reasonable doubt.
If it did so, and giving effect to the “Liberato direction” [1] and the directions as to circumstantial reasoning and the onus and standard of proof, it was required to consider the whole of the evidence to determine whether the only rational or reasonable inference was that the applicant acted recklessly as to consent (or with actual knowledge that the complainant did not consent). It was open to the jury, which heard and saw the various witnesses give evidence, both to reject the relevant parts of the applicant’s account and to exclude every inference other than the applicant was aware of the possibility that the complainant was not consenting but went ahead and committed the sexual acts, including intercourse, in any event.
I have considered the careful and thorough arguments put on the applicant’s behalf in helpful written submissions and on the hearing of the appeal. Notwithstanding the somewhat unusual circumstances of the case, the jury’s verdict was not an unreasonable one.
I am not persuaded by the argument that, if the accused was guilty, he would not have told the complainant about the sexual encounter of which she had no memory. The chronology of the exchange of messages after the event, which is set out by Chen J between [57]-[88], shows that it took around six days before he disclosed the full extent of the encounter. As a person of good character, it may be that the applicant regretted and felt guilty about what had occurred. He may also have been attempting to see what the complainant remembered of the incident. He seemed, based on the messaging, to have genuine feelings for the complainant. The jury was not required to resolve what motivated the applicant to disclose what had happened or why it took that period of time before he disclosed all of the details. Rather, it was required to make factual findings – to the requisite criminal standard – concerning the events of the early hours of 12 February 2020 and in relation to the applicant’s state of mind at that time. It made those findings unanimously and after a relatively short deliberation.
I agree with Chen J that it was open to the jury to be satisfied of the applicant’s guilt in relation to each of the offences alleged in counts 1, 2, 4, 5, 6 and 8.
CHEN J: On 20 March 2023, Matthew Withers (‘the applicant’) was arraigned at Newcastle District Court on an indictment charging him with eight sexual offences arising out of events that occurred on the morning of 12 February 2020 in the home of the complainant.
The events that gave rise to the offending had at least one somewhat unusual feature – namely, that the complainant had no memory of the offending against her, by reason of alcohol and prescription medication that she had earlier consumed.
There was, notwithstanding, no issue at trial that the actus reus for each of the principal counts had occurred. Rather, the sole issue was whether the Crown had proven beyond a reasonable doubt that the applicant knew that the complainant was not consenting to the sexual touching and the sexual intercourse. This issue was described at trial as the issue of “knowledge”. It is convenient to adopt that description in these reasons.
The principal offences for which the applicant was charged were two counts of sexual touching without consent, contrary to s 61KC(a) of the Crimes Act 1900 (NSW) (counts 1 and 5), and four counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act (counts 2, 4, 6 and 8). Count 3 was charged as an alternative to count 2, and count 7 was an alternative to count 6. Each of these alternative counts were for the offence of sexual touching without consent, also contrary to s 61KC(a) of the Crimes Act.
The applicant entered pleas of not guilty to each of the charges.
The applicant was tried before her Honour Judge Harris (‘the trial judge’) and a jury. The trial commenced on 20 March 2023. The jury returned verdicts of guilty in respect of all principal indictment counts on 27 March 2023.
The trial judge sentenced the applicant on 21 July 2023. Her Honour imposed an aggregate sentence of six years and four months imprisonment, with a non-parole period of four years imprisonment, to commence on 26 March 2023 and expire on 25 July 2029. The applicant is eligible for parole on 25 March 2027. This sentence is not challenged.
By notice of appeal filed 20 December 2024, the applicant appeals against his conviction only and raises a single ground – namely, that the guilty verdicts for each principal count were unreasonable. That ground requires leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
The appeal is out of time. However, given the Crown did not oppose the Court extending the time for the applicant to pursue this appeal, the confined nature of the delay, and because the delay is attributable to issues concerning Legal Aid funding (as explained in the affidavit of Elizabeth Tsitsos, affirmed 20 December 2024), an order extending time should be made.
I return now to the applicant’s argument directed to his evidence.
The applicant’s argument, as earlier noted, was that “he gave an exculpatory account that withstood cross-examination” in connection with “why he thought the complainant was consenting” – an account that was said to be “cogent and plausible”. The applicant’s account was essentially that, although the complainant may have shown some signs of affectation due to her consumption of alcohol and prescription medication, she had what was described in the applicant’s submissions in this Court as a “power surge” after the first shower, following which the applicant and complainant engaged consensually in the various sexual acts and intercourse.
The applicant’s written submissions did not identify any particular features of the applicant’s evidence (or “account”) given at trial that were “cogent and plausible”. The applicant argued during submissions that, in effect, he had given a “consistent” account that the sexual acts were consensual – referring in this respect to the various accounts that he had given in the messages exchanged, in the pretext call and in his evidence during the trial. It followed, on the applicant’s argument, that his evidence should have been accepted, or was such that the jury should have entertained a reasonable doubt as to the knowledge issue and therefore his guilt.
It may be accepted that evidence given by an accused that is “cogent and plausible” can, depending on the circumstances, mean that it would not be reasonably open for a jury to convict. However, I do not consider this to be such a case.
In my view, given the directive in Pell about the approach that this Court must take (and the assumption that it must make), there is some difficulty in seeking to anchor an argument about the suggested cogency of the applicant’s account based solely on the applicant’s evidence given at trial: that account was rejected by the jury. To the extent that the argument was buttressed by reliance upon the pretext call and the messages that the applicant sent, together with the related argument that these versions were all “consistent”, I do not accept the argument. No specific submissions were directed to what feature, or features, of the evidence (that is, the versions) required the jury, and therefore this Court, to entertain a reasonable doubt as to the applicant’s guilt. The position is not otherwise because evidence is argued to be “consistent”. The corollary posed is: with what? The fact that evidence may be characterised as consistent does not, in and of itself, render that evidence credible, reliable or inherently probative. Whether it does in a particular case (or in this specific case, given the Crown case on the knowledge issue was essentially circumstantial) depends upon an assessment of all the evidence.
Separately, two further matters stand against acceptance of the applicant’s submissions – viz., that his evidence was “cogent and plausible” and “withstood cross-examination”. The first is that, as the Crown submitted (and contrary to what the applicant argued), there were live questions about the plausibility of the applicant’s account and his credibility. The Crown identified during submissions the following matters as demonstrative of at least some of the issues of that kind that arose:
The applicant’s suggestion that the complainant, despite being manifestly and grossly compromised when he arrived at her home, somehow “snapped out” of that state – particularly when regard was had to the evidence given by Dr Fu;
The general implausibility that the complainant was calling the applicant for a sexual encounter, particularly given her boundaries and her request for ‘help’ in the messages exchanged with the applicant between 3:20am and 3:22am on 12 February 2020 (see [46], above);
The particular implausibility of the applicant not understanding the message that the complainant sent him at 3:22am on 12 February 2020 – “I call ambo me think pleE siri” – as meaning that the plaintiff required an ambulance. The applicant’s evidence was that he “didn’t know what she meant”.
26 and 27 January 2020: the applicant sent a message to the complainant at 11:59pm on 26 January 2020 that referred to when they had coffee together in March 2019. It included the following: “Not sure if you remember or not. You kissed me on the cheek. A brief, lingering brush of your lips. I liked that”. The applicant sent further messages shortly afterwards, stating that he remembered “holding you just a moment longer” and “[s]melling your hair”. The complainant responded at 12:07am and 12:09am respectively on 27 January 2020, saying that: “I think the thing we need to remember here is that you are married and living with your wife also” and “[a]s much as I enjoy our chats this is always in my mind.****..just being honest with you”. The applicant responded with a “thumbs up” symbol.
Dr Fu’s evidence also addressed aspects of the various sexual acts that the applicant suggested the complainant willingly participated in (essentially, as set out in the “note”), and her physical capabilities, given her impairment. Dr Fu’s evidence was that:
it was “unlikely” that the complainant was able “to sit up and take off her underpants”;
it was “unlikely” that the complainant was able to grab the applicant’s “head and pull it into her genital area”;
it was “unlikely” that the complainant was able to “roll over and grab her buttock and spread it” – essentially reasoning that the applicant was still “impaired”, that it was unlikely that the complainant’s legs and arms would “cooperate”, and that to do that act a person needed “really good skill…so it’s unlikely she can do that”; and
in relation to the likelihood of the complainant being able to “roll back over, lift her legs up and tell the [applicant] to fuck her”, the “lift the leg is impossible”.
Dr Fu gave evidence during cross-examination that when she expressed the opinion about something being “unlikely” that she meant “I can't rule out the possibility 100%, but it is not likely - yes, the percentage is less, but I can’t 100% exclude it”.