Xu v R

Defence case

1. The defence case was that the complainant had exaggerated both her state of intoxication and what occurred in the hotel room. On the defence case, it was the complainant's idea to go back to the applicant's hotel room with him. The applicant got into bed with her but once she said, "I'm not that kind of girl" the applicant ceased what he was doing and did not go on to indecently or sexually assault her. He asked why she had come back to his hotel room if she was not going to have sex with him.
2. The defence case was put in this in way in the closing address: "First of all, in terms of the question of what happened in the hotel room, if it can ever really be known - that's a matter for you - there was no contest in the trial that the complainant said, 'Well, I'm not that kind of girl' and the complainant said words to the effect of, 'I have a boyfriend.' Those words or those statements from the complainant are not the whole of the evidence, but they're an important verbal aspect in the case as to her indicating that she did not wish to proceed any further, as of course was her right to do. … Does the accused know, prior to his being told, that she is not the kind of girl that wants to then proceed to further or other or any sexual contact in the hotel room? Does the accused know that? That's an entirely separate question from the actual issue of the consent or state of mind of the complainant. … Members of the jury, it's not the defence case, as you'll be aware well and truly by now - unless I will have failed in terms of putting the case for the accused - that at some stage [the complainant] communicated that 'I don't want to'. The question before you in some respects, perhaps some important respects, is did the accused persist in such a way as to infringer the administration of the law having regard to the tests about which your Honour will direct you."
3. The applicant did not give evidence at the trial but called a number of witnesses.

Evidence of Wenbo Cao

1. Wenbo Cao attended the party and looked after the drinks. He said that the complainant asked him for white wine, and nobody told him that the complainant did not want any alcohol or that she was allergic to it. He denied trying to force the complainant to drink alcohol or seeing anyone else do it. He said that the complainant and the applicant got along well, and they sat next to each other and chatted often, occasionally whispering to each other.
2. Mr Cao said that he saw the complainant ask the applicant to "take her back to the hotel" and they left. The complainant realised she had forgotten her bag, so Mr Cao got it for her. He said that she did not appear intoxicated or heavily affected by alcohol.
3. He gave evidence that he was not paying attention to Candice and did not see if she had gone to lay down on the couch to sleep.

Evidence of Sam Xia

1. Mr Xia had met the complainant two years prior to the assault. They met up at the end of 2015 before the new year. Mr Xia gave evidence that the complainant messaged him or called him and told him that she went to a function and was nearly raped.
2. He said that they met up in the new year and he asked whether the applicant did anything to her, to which she responded, "[n]ot really … [the applicant] wanted to have intercourse … but she said '[n]o'". He said that she recalled that Tommy [the applicant] asked, "[w]hat do you mean, like you come to the hotel with me and you don't want to have intercourse with me?" and she responded, "I'm not that kind of cheap girl". He explained that she said her boyfriend was texting her and she did not want to tell her boyfriend that she was in a hotel room with another man so "she told her boyfriend she was raped".
3. Mr Xia also gave evidence that the complainant asked him to contact Coco to get money from the applicant as she needed money for tuition fees and living expenses. He said he had already given her a total of $5,500 (transferred on two occasions). He thought that the complainant deleted him because he would not help get money out of the applicant.
4. Mr Xia also said that he had never met or communicated with the applicant at the time. He said that the only time he met the applicant was in September 2017, when a friend invited him and others for a meal. Mr Xia said he recognised the applicant because he was active in the WeChat group. They started chatting and Mr Xia said to the applicant "so you are the unlucky guy. You were charged for … rape." Mr Xia said that he told the applicant that he "almost dated that girl and she wanted to get money from you".

Evidence of Jerry Wang

1. Jerry Wang was called as a character witness. He gave evidence that he had known the applicant for over three years and believed him to be an honest person who tends to be happy and not violent after a few drinks.

Evidence of Li Gao

1. Li Gao was called as a character witness. She was a friend of the applicant and had been involved in a sexual relationship with him. She said that he had no difficulty with her refusing sexual intimacy, he was the more submissive one in the relationship, and he was "more soft".

Introduction

1. Before turning to consider each of the seven grounds of appeal, I would make three introductory observations.
2. First, there was a significant amount of repetition of certain submissions across the various grounds of appeal. If an argument is repeated under a separate ground, I have only addressed it once, the first time it appeared.
3. Secondly, some of the complaints made under these grounds were raised before the trial judge, some were not and in some cases an argument was put in this court contrary to the position taken by trial counsel. Although I will point out the change in position in some instances, I do not propose to do so in all cases in the interests of brevity.
4. Thirdly, in relation to each of grounds 2-6, it is contended that the particular error caused a "substantial miscarriage". I have proceeded on the basis that what is meant by such language is that there was a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act and that the court would not apply the proviso; that is, the court would not dismiss the appeal on the basis that "no substantial miscarriage of justice" has actually occurred.
5. In order to establish a miscarriage of justice, the applicant must show that there is a "real chance" that what occurred affected the jury's verdicts: Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 at [47] per Kiefel CJ, Keane and Gleeson JJ; at [118] per Gageler J. As Beech-Jones CJ at CL (with whom Davies and Wilson JJ agreed) observed in Zhou v The Queen [2021] NSWCCA 278 at [22]: "To constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 such an irregularity has to be prejudicial in the sense that there was a 'real chance' that it affected the jury's verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J) or 'realistically [could] have affected the verdict of guilt' (at [123] per Gageler J) or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial' (Edwards v The Queen [2021] HCA 28 at [74] per Edelman and Steward JJ)."
6. Only if the appellate court is satisfied that there has been a miscarriage of justice does the court turn to the question of whether it is satisfied that no "substantial" miscarriage of justice actually occurred. While there is no universally applicable test for when there will have been no substantial miscarriage of justice, an appellate court can only conclude that no substantial miscarriage of justice occurred if it is satisfied that evidence properly admitted at trial established guilt beyond reasonable doubt: Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 at [20] and [41]. This requires a consideration of the nature and effect of the error that gave rise to the miscarriage of justice: Orreal v The Queen at [20] and [41].

Ground 1: The trial miscarried by reason of the prejudice occasioned by the Crown prosecutor's opening address to the jury asserting that the complainant was "so substantially affected by alcohol" it negated consent.

Ground 2: A substantial miscarriage of justice was occasioned from the convictions of the appellant in relation to counts 1-6 as a result of the trial judge's failure to discharge the jury after the Crown prosecutor's opening address.

Ground 3: A substantial miscarriage of justice was occasioned as a result of the trial judge's failure after the prosecutor's opening address, and later in the trial judge's summing up, to give the jury a full direction of the law on intoxication and consent.

1. Grounds 1, 2 and 3 were addressed together by the Crown as they all relate to the Crown prosecutor's opening address.
2. The Crown opening address was very detailed in its recitation of the elements of the offences. As is the usual practice, the Crown prosecutor observed the following in the context of her explanation of those elements: "… [W]hen I explain some of the counts on the indictment to you and how the Crown puts its case in relation to that, to the extent that I might raise or talk about any issues of law you should bear in mind that it's what her Honour will say to you through the trial or at the end of the trial about the law that you're obliged to follow, not what I might say, not that there will necessarily be any difference about that, but just keep that in mind as well."
3. She went on to explain the elements of lack of consent and knowledge of lack of consent in this way: "I'll start with count 6. Count 6 alleges that the accused had sexual intercourse with [the complainant] without her consent, knowing she was not consenting. What that relates to is [the complainant's] evidence that the accused when they were struggling on the bed that he inserted his finger into her vagina. That's the discrete act that that charge relates to. That has three essential elements that the Crown has to prove beyond a reasonable doubt and you'll be receiving some detailed directions about this at the end of the trial. First, the Crown has to prove that the accused had sexual intercourse with the complainant, so with [the complainant]. The second, that the intercourse occurred without her consent and the third is that the accused knew at the time of the intercourse that [the complainant] was not consenting. That's what needs to be proven in terms of that count. The first element that the accused had sexual intercourse with the complainant, again at the end of the trial you will receive some detailed directions about this from her Honour. I expect that she will tell you that if you find that the accused's finger or fingers penetrated to any degree the genitalia of [the complainant], so it includes the vagina that that will be sexual intercourse for the purposes of the law. Now the second element, which is that the intercourse occurred without the complainant's consent, so, without [the complainant's] consent, the Crown has to prove that [the complainant] did not consent to the intercourse and, in relation to that again, her Honour will tell you what consent means, and what can be taken into account when you're looking at that but, just for the purposes of you understanding the Crown's case, a person consents to the physical touching, if they freely and voluntarily agree to it. The Crown's case is that [the complainant] did not consent and was never in a position to consent given that she was so substantially affected by alcohol, so, she was intoxicated by alcohol. Also, the Crown says that [the complainant] did not, in fact, consent, as in she communicated to the accused, when they were in the room, when they were on the bed, through the resistance to the accused, and also what she said, that she did not consent. The third element is that the accused knew, at the time of the intercourse, that [the complainant] did not consent. That might, at first, strike you as a bit difficult. How can the Crown prove, beyond reasonable doubt, what a person knew, or what was in the accused's mind, unless they admit what was in their mind? The answer to that question is that the Crown will ask you to infer, or conclude, from the evidence that you hear, that the accused knew that [the complainant] was not consenting and did not honestly believe that she was consenting to the sexual intercourse. The Crown's case is that the accused knew that she was not consenting and knew that she was so substantially affected by alcohol that she was not in a position to freely and voluntarily agree to sexual intercourse. There are two other ways that the Crown can also prove this third element of knowledge, that you can also be satisfied about. That is, firstly the Crown can prove knowledge, if you satisfied beyond reasonable doubt, that the accused was reckless as to whether [the complainant] consented to the sexual intercourse, and her Honour will provide you with some directions about what that means, so, what it means to be reckless about something. Just for the purposes of my address to you, I expect that that will be to the effect that the Crown must prove that the accused failed to consider whether [the complainant] was consenting at all, and just went ahead with the act of sexual intercourse, even though the risk, that she was not consenting, would have been obvious to someone with the accused's mental capacity, had they turned their mind to it. The other way in which an accused can be reckless is if the Crown proves that the accused realised the possibility that she was not consenting, that, realising the possibility that she was not consenting, went ahead regardless of whether she was consenting or not. So, the Crown's case, in relation to recklessness, is that the accused knew the extent of [the complainant's] intoxication and that he was reckless as to whether or not she consented to the sexual intercourse. The Crown can also prove knowledge, if the accused did not believe that [the complainant] was consenting to sexual intercourse - sorry, if he did believe that she was consenting to sexual intercourse but had no reasonable grounds for that belief. So, the final element of knowledge, there are a few things for you to consider, and you will receive some detailed directions about that at the end. When you do come to consider the accused's knowledge about consent, and about what his state of mind was at the time of the alleged sexual intercourse, the Crown case is that, as a matter of law, you can, and should, consider any steps that he took to ascertain whether or not [the complainant] consented to the sexual intercourse and you can't take into account, when you're looking at that, the effects, or the impact, of any alcohol that he'd had, or he'd consumed, may have had on that question. So, if you form a view that the accused had had some alcohol, or was intoxicated at the time of the intercourse, you must put that to one side when you come to consider that third element of the offence, that is the accused's knowledge as to lack of consent." (Emphasis added.)
4. When the jury left the courtroom after this opening, counsel for the applicant complained about the italicised portion of the above passage in the following terms: "WEBB: My learned colleague has raised intoxication and intoxication as I understand it to arise in the evidence insofar as the complainant is concerned is self-induced intoxication in the sense that whatever happened at the party the alcohol was not force-fed or introduced via tube or something of that nature. In that context I understand the Crown to have submitted that because of the degree of intoxication which ran with the state of mind or extinguished insofar as has relevant a state of mind capable of not indicating a consent that the intoxication on the part of the complainant made her incapable of indicating consent or the lack of it. At the same time, it is, as I apprehend, submitted in the alternative that even given the, effectively, incapable condition of the complainant that failing that, that the accused was reckless as to the fact of what is in essence, perhaps not unconsciousness, but similar insofar as consent is concerned. So, a person of course as your Honour would accept who is incapable of consent is at law not in a position greatly dissimilar to a person who is incapable or unconscious. In my submission in terms of where that places the issue of intoxication it is submitted problematic, because the issue of intoxication has been raised as going to the complainant being incapable of consenting at the same time intoxication can't be taken into account in anyway shape or form and that part in my respectful submission is likely right as to the accused conduct. (Emphasis added.)
5. Her Honour responded in this way: "HER HONOUR: Yes. I don't think the Crown has said anything illegally [sic legally] incorrect. Are you submitting that factually it doesn't apply or are you saying that there was an error of law?"
6. Defence counsel replied: "WEBB: The first submission on the issue of law is that intoxication has been deployed on the one hand so as to render in substance and at law the aspect of consent irrelevant insofar as the complainant's concerned because the complainant is in effect unconscious and at the same time if the accused had had anything to drink, of course, it will establish that he could not make intoxication excepting very particular circumstances consistent with other doctrines which are no application really on these facts that he could not avail himself at all of intoxication which in my submission is undoubtedly the position. So, the issue of intoxication is used in a way and in my submission, which is legally not right. This is not upon the facts in my submission a case of intoxication being so severe or manifest as to render the complainant incapable of consent and then it is - "
7. Again, her Honour asked: "HER HONOUR: That's what I was asking. Are you saying the facts don't present intoxication to be in issue?"
8. The following exchange then took place: "WEBB: In my submission, not to the extent of rendering consent are [sic] irrelevant because - of course, consent is always relevant but simply that the complainant was so intoxicated as to be incapable of consent. In those circumstances it is in my submission that makes the considerations in relation to the third element quite complex and in my submission in the way in which the Crown opening has been cast perhaps irreparably unfair to the accused and perhaps also irreparably unfair in respect of the question of consent in fact as is generally considered in what might be called the second element. It's a highly legal opening which has - so open very high on the law, not-- HER HONOUR: I'm not sure about very high. I'd say very broadly. WEBB: Very broadly, with great-- HER HONOUR: There's perhaps nothing left for me to say at the end of the trial. WEBB: With great complexity and your Honour in the circumstances as they are in my submission your Honour may consider either discharging the jury on the way in which intoxication has been opened upon regrettably and it is my submission that intoxication being put in - train in that way, if the jury found for whatever reason that the complainant was not so intoxicated as to be unconscious and incapable of indicating one thing or another as is ad idem with unconsciousness or sleep it would be very difficult for the jury to then do other than acquit. In other words, if the jury found that the degree of intoxication was not so severe as to in effect render the complainant unconscious then the jury would be in a difficult and dangerous position as to questions of recklessness adverting to the possibility and matters of that kind. HER HONOUR: Well at this stage I don't detect that there is a problem with the way the Crown has opened. The Crown very appropriately referred to the fact they're bound by anything I say and from what I heard and what I made a note of, I don't think the Crown has made any error in relation to giving a very fulsome indication to the jury as to what they would be looking at and everything that possibly could arise. I know that s 61HA sets out the matters and I think it has been largely compliant, well not largely, been entirely compliant with what's set out in there. It may well be ultimately on the facts that some of those directions aren't necessary to be given at the end of the trial when I perform my role, but I don't think there's been any error with what the Crown has opened on. There is a live issue in relation to the complainant's intoxication as I understand it given all of the evidence about what can be observed about the manner in which she walked or stood or responded so clearly intoxication is in issue. WEBB: Your Honour it is in issue but in my-- HER HONOUR: But it may not ultimately be in issue at the end of the trial. It may well be because the complainant on what has been opened on was repeatedly and strongly indicating a lack of consent that that may be all the jury need to be directed on. It's a little bit hard until I hear all the evidence but I'm not sure that anything - well, I don't think it warrants a discharge because the Crown has indicated anything that she says at this stage is subject to anything I say towards the end and she's just very fully covered all of the provisions by which a jury may well reach a determination. If some of those have no significance at the end of the trial then they won't be directed on, but I'm not saying they don't have significance because I don't know how the evidence will pan out." (Emphasis added.)
9. I pause here to note that the trial judge clearly did not have a transcript of what the Crown had stated but, having listened to it, she did not consider there to be any misstatement of law or any other difficulty with the opening, besides the fact that it was very long and detailed. Her Honour observed, correctly, that the Crown had told the jury that anything she said was subject to what the trial judge said and that at the end of the Crown case it may be that not all of the different bases put to the jury in the opening would be the subject of directions to the jury. Her Honour observed that she was not aware of the evidence and thus not in a position to discharge the jury. Defence counsel went on: "WEBB: In my submission it would be difficult to conceive of an accused in one way shape or form who would not be guilty in relation to what's gone on in the hotel room in the course of the learned Crown's opening. In my respectful submission when your Honour sees the evidence as it unfolds your Honour would be troubled in relation to the degree of intoxication opened on and with respect it is opened on to the extent that it's placed before the jury as a matter of principal significance that when all is said and done and when the sun sets on the point, ladies and gentlemen, the complainant was incapable of consent. That also intersects of course with questions of recklessness as they relate to the third element namely by reason of the fact that in a manner of speaking the complainant was out cold or unconscious as to the issue of consent for that reason the accused surely ought to have known and you'd be satisfied beyond reasonable doubt that in fact the complainant was completely was not conscious. In my respectful submission, it is a very dangerous address and a discharge of the jury is sought rather than to try and pick up the pieces from here and there is reparable prejudice. Also, as a judge of very considerable learning and experience for the defence to limp on with more baggage now than an aircraft carrier these things do not assist in the fair conduct and disposition of the real issues which would be in dispute in this trial. So, it may be he's submitted respectfully to be inadequate to leave something like that in the closet of reflection affecting the jury's deliberations at this stage when your Honour will have, with respect, concerns as to what's going on vis-à-vis that level of intoxication. The first respectful application is discharge because of the reparable (sic) damage done in firstly as to a no doubt in advertent complete misstatement of the position vis-à-vis intoxication in this case and the splicing of that unconscious state with the question of recklessness and in my submission going forward from here you'd recommend the discharge of the jury. That's my first submission." (Emphasis added.)
10. Defence counsel then went on to make an alternate application on the basis that her Honour was not inclined to discharge the jury. That application was to the effect that he should not be bound by s 159 of the Criminal Procedure Act 1986 (NSW) in his opening. During submissions on that application, the following exchange took place: "WEBB: Your Honour, the difficulty is going forward in the case that the jury will perhaps regard the intoxication to that degree to be in some way relevant where on the evidence in my submission it doesn't really come up to proof on that issue. It has a close relationship also to recklessness and HER HONOUR: If you were right then there would be no such direction. You're saying the Crown shouldn't have opened on it and in due course I wouldn't be giving a direction on it. That's your submission; that the evidence doesn't allow for that? WEBB: The evidence falls short of intoxication to that degree. Yes. HER HONOUR: So, at the end of the trial when I give my directions, assuming you're correct, I will not be giving a direction in relation to the complainant's intoxication? I will not be giving whatever it is, 61HA(6)? WEBB: Yes HER HONOUR: So, the jury will, if you are right, not receive that legal instruction? WEBB: As to the complainant? HER HONOUR: They need to receive one as to the accused, I don't think you're challenging that. WEBB: I wouldn't be raising intoxication on the part of the accused to any degree. HER HONOUR: Let's just pull it back for a moment. From the notes that I took my understanding of what the Crown Prosecutor did was to address very widely in relation to all the bases that the Crown could seek to prove its case. Intoxication arose in relation to the complainant, all the different ways in which the Crown could satisfy the element of the accused's state of mind. All of those matters were very fully opened on as part of an opening that went through the different elements that applied for different types of offence to a jury who at the time were only armed with a copy of the indictment, but no writing material in, what was a very detailed opening. I would be most surprised if the jury retained the detail of the opening. I think the Crown very fairly indicated to them that it was to assist them, that it was subject to anything being directed upon differently at the end of the trial, but also an acknowledgement that they weren't in a position to make notes. Any lasting memory of the detail of the elements would be hard to accept. You are very skilled in this, Mr Webb." (Emphasis added.)
11. In refusing the discharge application her Honour stated the following: "HER HONOUR: The Crown is very skilled and I have some skill, because we all look at the bench book, and so we also look at the provisions that guide us in the offence provisions. We know the key words to listen for and we know where things are going. To an untrained person, as I assume most of the jury are as far as the law, I do not for a moment contemplate that they would have taken a firm and full understanding of how the Crown can prove these charges with the different ways in which offences can be proven. Even if there was an error, and I'm not saying there was, I don't think it would have been one that would warrant a discharge. On your first application, even without hearing from the Crown, I'm against you."
12. As for the application not to be bound by s 159 of the Criminal Procedure Act, her Honour inquired the following of defence counsel: "Why would you need to go into this area in any detail? What is your case? Your case, as I think you indicated earlier, is not necessarily accepting all of the acts, but to the extent that some things happened, that the Crown isn't in a position to prove certainly element three of the accused's state of mind."
13. The following exchange then took place: "WEBB: Insofar as it relates to those charges where it's an opposite consideration, and that the jury, as the fact finders, before all this doom and gloom descends upon the accused they'll need to first determine what certain facts are or find certain facts as to what happened in that hotel room. HER HONOUR: So, what I'm getting at is from what you have indicated you seem to have a very clear case. Why would you be descending into detail that you wouldn't normally have an entitlement to do because of s 159? WEBB: Section 159 would not waylay reference to facts in dispute, one fact which is in dispute and which is now very relevant, it is submitted, merely because the learned Crown Prosecutor as a minister for justice has opened to the jury on the issue. Well, was the complainant unconscious or in substance unconscious? HER HONOUR: But you are entitled to do two things under s 159; to indicate what is in dispute, so if you're saying it is challenged that the complainant was intoxicated or that she passed out you're entitled to do that in any event, and to say what your case is. So, what do you envisage you need to say that goes outside of the limitation? WEBB: It may be a matter, less appropriate for an advocate and more appropriate for the learned presiding judge that - not to give excessive weight or to view the evidence in such a way as to overstate the position of intoxication. The danger, of course, is‑‑ HER HONOUR: Sorry, you want me to say that? WEBB: I don't, with respect, think that it's really capable of correction by an advocate insofar as‑‑ HER HONOUR: Mr Webb, if it's in dispute by your client and it's something that falls within what is provided under s 159 then it is appropriate that you say something. I don't think it's appropriate I say something at this stage because I haven't heard any of the evidence and the evidence is outlined by the Crown as anticipated evidence and until I actually know what the evidence is in the trial then it isn't prudent for me to be launching into some discourse about what I anticipate the evidence will be based upon what the Crown opened on. I don't think it's appropriate I say something, but given that your second application is that you not be limited by s 159 what is it that you want to say that goes beyond it? WEBB: Firstly, one issue is, as the Crown asserts as relevant in the Crown's opening address, the complainant is unconscious and therefore the issues of consent ultimately don't arise in the sense that there's nothing to assess in the sense that the complainant is in a somnolytic state or out cold for all intents and purposes. If the evidence falls short of that then it really sets up the issue of recklessness so if you don't find that the complainant is unconscious surely you'd find that the accused must have been reckless to state which was close to unconscious. It's a troubling address. HER HONOUR: Sorry, I'm losing the gist of your application. I'm also perhaps going back through my notes. My notes have, from what the Crown opened on, certainly there was a time at the Quay West apartments where the complainant has her head down on a table and has great difficulties, but there's no sexual activity that occurs there, so it's then the 13th floor hotel room. WEBB: That relates to something I think that the complainant asserts of herself. HER HONOUR: That's all I'm dealing with because that's all that's been opened on. I'm just dealing with the material the Crown opened on. The 13th floor, that the complainant could not stand or sit, so she lay down. She was in a position of replying to a text and then the accused commenced by taking his clothes off, got into bed, and then there were various touchings, manoeuvrings, resistance that goes on, and it takes I think about an hour from what the Crown indicated in opening. Was there an indication during that time of various sexual touching, various acts of resistance by way of physical acts and words spoken, that there was an indication that the complainant was unconscious? WEBB: Yes, insofar as the complainant did not consent on account of intoxication and that was‑‑ HER HONOUR: No, in the opening did the Crown say, from your recollection, that during that time the complainant was unconscious. WEBB: I have a note here, whether it's right or not, I'm ginger about that, that by reason of the intoxication that the inference was the complainant was incapable of consent. That was how I understood the address, which is not the test; that the complainant was incapable of consenting on account of the degree of intoxication. That's what in my submission goes to issues of the degree which is really not very obvious. HER HONOUR: So as succinctly as you can, just so I can process it, what do you precisely want to say? What is your application as to what you want to say beyond what 159 provides that you can say? WEBB: To suggest to the jury that - I don't think it can be said in an opening address on reflection, your Honour. If the jury found that the complainant had reached a stage which fell short of her being incapable of consent that places the jury in a very difficult position as to assessing recklessness because of the intoxication. It's not about recklessness as in certain gestures were made or certain things were said. It's about recklessness on a very particular ground, namely the intoxication was so severe that the complainant is incapable of consent. That's a different species of recklessness. HER HONOUR: You want to say that your case is although the complainant may have been drinking she was not so intoxicated as it impacted upon her ability to give consent? Is that what you're saying? Although you'll say it in a much lengthier way. WEBB: But if the jury found that the complainant was not incapable of consent where does that leave the jury in relation to the third element as to assessing the accused's state of mind and also-- HER HONOUR: This all comes to the directions at the end of the trial based upon the evidence that we hear. You obviously have the statement of the complainant or statements, I'm not sure. You also have instructions from your client as to what is ultimately the issue in this trial as far as the complainant's intoxication but it hasn't been explored. To some extent it's very hard to have the final settled view because none of us know what's going to happen during the complainant's evidence. WEBB: Yes, and that's so. HER HONOUR: From what I understand you are just wanting the jury to consider the evidence to consider what evidence there is about the complainant's intoxication and to say that there's a challenge that she was as intoxicated and to the extent that there were acts, some are not accepted to have occurred and some did occur but with consent. That's it. You're going to say it I know a lot more eloquently than that. What else do you want to say? WEBB: There's a fine line between of course what is in dispute and what becomes argumentative. A point has been reached in my submission where some latitude may be permitted, not to go outside what the statute mandates but as to what's in dispute and why it's in dispute. HER HONOUR: Are you saying it doesn't go outside the provision then why are you making an application if you're saying it is compliant with 159? WEBB: I'm seeking to raise with your Honour the issue that the opening may be a little more detailed than ordinarily one would hear. Of course, I accept that I'm bound by the statutory provision. That's not something that I'm struggling with. If your Honour is against me on the discharge then perhaps it just simply remains to open tomorrow morning and ask your Honour if there is a transcript available of today, I'm not sure. Usually there isn't of the first-- HER HONOUR: It's been ordered. Only the evidence has been ordered, I don't know that the addresses have had a request. WEBB: We'll have a look at our notes overnight. HER HONOUR: I'm sure with the assistance available to both counsel during this trial, between the three people assisting each side there will be reasonable notes. WEBB: Yes. As the Court pleases." (Emphasis added.)
14. After this exchange, the trial judge then conducted the following exchange with the Crown: "HER HONOUR: Madam Crown, I haven't heard from you. I already ruled on the discharge without needing to hear from you. I haven't ruled in relation to 159 because Mr Webb has made it clear that he actually thinks he isn't going to be going beyond what he's entitled to go beyond, although it will be more detailed than would be customarily given by him in an opening. It's very hard perhaps to ask for your view on this because-- CROWN PROSECUTOR: I understand if it was to be put to the jury that the level of intoxication is an issue then that's not a breach. HER HONOUR: No, that's entirely compliant. CROWN PROSECUTOR: I don't really have any issue to raise with what has been said."
15. After this exchange, defence counsel added the following: "WEBB: It's an adversarial system and we'll take it as it comes subject to your Honour's learned rulings. HER HONOUR: Well, no Mr Webb you had an application to go beyond 159 and through your own advocacy talked yourself into feeling that you were actually going to comply with 159. WEBB: In my respectful submission-- HER HONOUR: So, I have made no ruling on it and the Crown has a difficulty responding because she similarly is of the view that you should be bound by 159 and has understood that you are indicating you will be bound by 159. I'm not really sure what we're all talking about. WEBB: I think I must be bound by that, but if your Honour is against me on the discharge application then-- HER HONOUR: Well, I am. I already ruled on that. WEBB: I will do my best tomorrow to deal with the position."
16. Nothing more was said at that time. The following day, after the transcript was made available, the topic was not re-visited. Defence counsel went on to give an opening address in which he stated the following: "And the first matter that I can raise with you, which is a source of dispute between the Crown and the defence, is that as the evidence unfolds and you come to assess it, that the complainant is not so intoxicated as to be incapable of consent in the sense that an unconscious person might be incapable of consent or a sleeping person or something of that nature. So the degree of intoxication is in issue in this trial, fairly and squarely, insofar as it concerns the complainant and what the Crown has raised as being this relevant issue as to whether or not the complainant is incapable of giving consent. … In those terms, ladies and gentlemen, but having regard also to the issue of intoxication which has been raised, an important question in terms of what's in dispute; 'Are you satisfied beyond a reasonable doubt at the end of all of the evidence that the accused knew or believed that the complainant was not consenting', or, 'Are you satisfied beyond reasonable doubt that the accused had essentially no regard to the question of consent?' So, that's an important issue in dispute."
17. The trial proceeded and by 16 July 2018 the evidence had concluded.
18. During submissions about legal directions, the following exchange took place between her Honour and the Crown: "CROWN PROSECUTOR: … The other aspects of the directions that I've been considering is I did open fully on the issue of consent and how it can be proven, but I think in the way that the evidence has fallen that it would only be necessary for your Honour to talk about a lack of consent as a result of what the complainant says occurred in the room as opposed to an intoxication direction. HER HONOUR: Could I just check a matter with you on that? There was evidence that was led from, I think it was the officer in charge, that a blood sample was obtained from the complainant, but I don't think there was ever an indication as to the outcome of it. CROWN PROSECUTOR: No, that wasn't put in evidence. HER HONOUR: So, there is no evidence as to an intoxication I apply that by way of one close in time or expert evidence reading back as to it. The evidence is that the complainant had two to three glasses of wine which on a lay level wouldn't normally result in intoxication. I understand, well I think I understand, the evidence being that it's not a classic case of intoxication, but it's the effects of alcohol which seems to be the physical effects of alcohol. CROWN PROSECUTOR: Yes. HER HONOUR: I spent some time over the weekend labouring over the authorities that look at substantial intoxication and they are looking at where through intoxication a person is not able to give consent because they are so debilitated. My understanding of the evidence is that the complainant felt intoxicated, she showed signs of being intoxicated by way of stumbling-- CROWN PROSECUTOR: And being sick. HER HONOUR: --and repeatedly being sick and observations made of her that suggested that she was intoxicated, but it really seems to come down to considerable physical effects because she's able to recall everything. There's only one portion of her evidence, from my recollection where she says she's not able to account for something which is to walking from the apartment to the hotel. I think that was the only occasion where there was really an inability to give an explanation as to conversation or movement. CROWN PROSECUTOR: And I think the only other time was where she said that she wasn't sure of the chronology, exactly in the room. HER HONOUR: Well I think even if so, the person would have difficulties recounting a number of incidents and necessarily having the chronology right, I mean that's not necessarily attributable to any intoxication so what would I say? CROWN PROSECUTOR: Yes, and the complaint - well because also, the complainant's evidence I think was that she was shocked. She was shocked out of her state because of what went on in the room, that was also part of her evidence, but her intoxication is still in some ways relevant to the Crown case insofar as it explains how she gets from the apartment to the hotel room without the Crown says, actually agreeing to go back to the hotel because of her intoxication and it's also become relevant because of other observations that have been made by witnesses. So, for instance, the witness this morning, about her not showing any signs of intoxication, so it's still relevant, but not to the issue of consent as the events happen in the room but, it's still relevant in terms of the surrounding circumstances and her credibility as to other matters." (Emphasis added.)
19. The following exchange then took place between her Honour and defence counsel: "WEBB: Yes. Just two matters, if I may, going beyond the standard and, with great respect, reasonably obvious directions which will flow in the course of a short trial concerned with the issue of consent. The first is intoxication. As was apparent early in the trial, a discharge of the jury was sought in respect of the Crown's address on the issue of intoxication. The Crown in the address has unquestionably, with great respect, raised intoxication and raised it in a case that it's at all appropriate on the facts of the case. It's not an intoxication case. HER HONOUR: The evidence about intoxication has bearing on the case. WEBB: The evidence of intoxication may have bearing on the case, but the jury should be firmly and carefully directed as to what that relevance is. … But, on the other hand, on the ghost train, somehow because the complainant was intoxicated, really, at the heart of it, the accused was more likely to be guilty because she had been drinking and in some way the drinking - falling short of anything recognised with respect to the law - made things more spongey in such a way that the jury could consider that drinking, in and of itself in the circumstances of the case, could lead the jury to consider that the accused is more likely to be guilty. It is also, with respect, something that was raised - that's regarding the complainant, then with the accused HER HONOUR: So, what are you suggesting I say? WEBB: So, in terms of intoxication, accused, number one, it is submitted you cannot have regard to the fact that the accused had consumed alcohol in the sense that he is any more or less likely to be guilty as a result of drinking alcohol. It is, put simply, a circumstance in all of the circumstances in the evidence for you to assess. … … WEBB: So, if and only if you find that the complainant was so intoxicated in the room that she was incapable of consent, as a person who is unconscious or asleep cannot consent, then intoxication may be regarded as relevant. However, the degree of intoxication must be so severe as to lead you to hold, beyond reasonable doubt, that she was incapable of consent."
20. Her Honour clarified the direction sought by defence counsel in this way: "HER HONOUR: So, what you're asking me to do, if I understand it is under the consent element, the direction on the element of consent, is to say that although there is evidence that the complainant had been drinking and on her case was affected by alcohol, it is not the Crown case that she was not able to give consent. WEBB: That's right. Well, your Honour-- HER HONOUR: So, something along those along those lines. You want to incorporate it in there, so that the jury are just directed. WEBB: Let it go and don't mix it up with this issue of consent and don't throw it into the test because it's so dangerous, and its application in that way is antithetical to the law - hundreds of years of the law. HER HONOUR: I might need to finesse that and make it more of a direction rather than an observation. … HER HONOUR: Well, it's perhaps the opposite of what I would've been saying if I gave something on the substantial intoxication. What I'll do is I will put something into the document that I'm going to provide to both of you to make comment on. … WEBB: In other words, whether the degree of intoxication is little or medium or large, it has nothing to do with the third element unless and until the Crown allege, as isn't the case here, that the degree of intoxication is so profound as to render the complainant unable to consent in a manner analogous to sleep or unconsciousness."
21. MFI 16 was subsequently provided to the parties in response to the request by defence counsel. In relation to the consent element for counts 1 to 6, the direction included the following: "The complainant's intoxication is not such as would prevent her from consenting if she chose to consent."
22. In her closing address, the Crown put her case on count 6 in this way: "CROWN PROSECUTOR: [In relation to count 6]: The third element that the accused knew at the time of the intercourse that [the complainant] was not consenting. To prove that the Crown has to prove that either he knew that [the complainant] was not consenting, that he did not have an honest belief that she was consenting or no reasonable grounds to have that belief, or that he was reckless as to whether [the complainant] was consenting. Her Honour will provide you with some more fulsome directions about that and those concepts in due course. So, I won't go over those now."
23. Defence counsel addressed the issue of intoxication in this way in his closing address: "[I]t's not the defence case that [the complainant] wasn't affected by alcohol. … [The applicant] is not trying to sweep under the carpet the fact that [the complainant] … was also affected by alcohol to some degree."
24. Consistent with MFI 16, her Honour's summing up included the following direction on consent and knowledge of lack of consent: "Element 2 for this offence deals with the aspect of without the complainant's consent. A person consents to sexual intercourse if they freely and voluntarily agreed to…[t]he complainant's intoxication is not such as would prevent her from consenting if she chose to consent. … Element 3 is to do with the accused's knowledge of the complainant not consenting… An accused knows that the complainant did not consent to the sexual intercourse if either - and turning over to p 2 you will see that what appears there are three different ways. There is (a), (b) and (c). (a) The accused actually knew that the complainant did not consent to the sexual intercourse. It is the accused's actual knowledge of the lack of consent at the time of the sexual intercourse with which you are concerned. In this case the Crown has asked you to infer the accused must have known, and that he did in fact know, that the complainant was not consenting to the sexual intercourse. … (b) The accused was reckless as to whether the complainant consented to the sexual intercourse. To establish that the accused was reckless the Crown must prove either: (1) the accused simply failed to consider whether or not the complainant was consenting at all, and just went ahead with the act of sexual intercourse, even though the risk that the complainant was not consenting would have been obvious to someone with the accused's mental capacity if he had turned his mind to it; Or (2) The accused realised the possibility the complainant was not consenting, but went ahead regardless of whether she was consenting or not. … (c) either that the accused did not honestly believe that the complainant was consenting, or even if he did have an honest belief in consent there were no reasonable grounds for believing the complainant consented to the sexual intercourse. What appears beneath that is a heading which says 'Accused's intoxication', and you know there is evidence in the interview and elsewhere about the accused drinking through the night. There was evidence the accused was intoxicated, and I use that term broadly. The law requires you to ignore any effects of intoxication. If you think that his ability to think or understand what was going on was affected by alcohol, then you have to put that to one side. You have to look at the accused and ask - what would have been going on in his mind if he had not ingested alcohol? That is the directions in relation to count 6, an allegation of sexual intercourse without consent. If you go over to p 3, this is the direction that relates to counts 3 and 4, which are the allegations of attempted sexual intercourse without consent. … I am not going to read out what appears under elements 2 and 3 or what appears under 'Accused's intoxication'. It entirely mirrors what I have already read out to you for count 6." (Emphasis added.)
25. Her Honour went on to refer to the evidence and submissions as follows: "[In relation to the elements that apply to counts 1, 2 and 5] what appears thereafter for element 3, element 4, and the accused's intoxication, once again it is a repetition of what I have read out to you already. … The complainant said that she drank two to three glasses of white wine. She said that she was not a drinker of alcohol. She only drank a few times a year. She had never had white wine before. She said that she was forced or encouraged to drink. The complainant said she was drunk. She described physical symptoms of feeling unwell whilst at the dinner. She said she was so unwell she vomited outside the apartment before going to the hotel, and, in his evidence, her boyfriend confirmed that she vomited in the car and, similarly, the police confirmed she was still vomiting at the police station. … Based on the time that she was collected, 7.20pm, and the time that she is picked up on the CCTV footage at the Shangri-La Hotel, the complainant and the accused were at the apartment for not much over two hours. [Mr Webb] said there were aspects of the complainant's evidence going to the complainant's credibility. He said the complainant was exaggerating about three things: (1) Firstly, her degree of intoxication; (2) Secondly, what happened in the apartment; and (3) Thirdly, what happened in the hotel room."

Applicant's submissions ground 1-3

1. Ground 1 contends that the trial miscarried by reason of the prejudice occasioned by the Crown prosecutor's opening address to the jury asserting that the complainant was "never in a position to consent given that she was so substantially affected by alcohol" that it negated consent.
2. It was submitted that the opening address would have "infected" the jury. The fact that the complainant had consumed alcohol meant that the jury would mix issues of consent, particularly recklessness. It was also submitted that, although the trial judge did not yet know what the evidence was, her Honour should have given a fuller direction to the jury to qualify the issue of intoxication at the conclusion of the Crown's opening.
3. The applicant submitted that the Crown prosecutor's statement that the complainant was never in a position to consent given she was so substantially affected by alcohol offends s 61HA(6)(a) of the Crimes Act which provides: This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J and 61 JA. … (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug…
4. The applicant also relied upon the decision of this court in Beattie v The Queen (2020) 287 A Crim R 287; [2020] NSWCCA 334 in which Johnson J (with whom R A Hulme and Wilson JJ agreed) observed the following at [71]: "Parts of the written and oral directions on substantial intoxication given by the trial judge were inaccurate as they suggested that substantial intoxication negated consent rather than it being a factor which the jury may take into account in determining whether consent was negated."
5. The applicant submitted that the Crown prosecutor's statement in relation to consent for counts 3, 4 and 6 falls into the error identified in Beattie v The Queen in suggesting that substantial intoxication negates consent, rather than potentially being a factor that the jury may consider in determining whether consent was negated. The applicant also submitted that the Crown prosecutor incorrectly stated the law in her opening address when referring to counts 1, 2 and 5 (the indecent assault offences). The Crown prosecutor said in opening address, "I've already spoken to you about consent, in relation to count 6, and the same considerations for that apply when you're looking at these particular counts." The applicant submitted that s 61HA(1) of the Crimes Act did not apply to those offences; the common law on consent applied. The applicant relied on the common law on consent, as stated in the New South Wales Law Reform Commission Consultation Paper Consent in relation to sexual offences at [4.36], that "required a complainant to be insensible or unconscious through intoxication before being uncapable of consenting."1
6. Under ground 2, the applicant contended that a substantial miscarriage of justice was occasioned by the trial judge's failure to discharge the jury after the Crown prosecutor's opening address. It was accepted that it was not "in the strict sense" a decision on a question of law but an exercise of discretionary power. Leave is required for this ground: Hamide v The Queen (2019) 101 NSWLR 455; [2019] NSWCCA 219 (at [77]).
7. The applicant submitted that the complainant's level of intoxication in relation to the elements of the offence was the lens through which the jury was invited to receive and process the evidence that was subsequently to be presented during the trial. In relying on the decision in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 and Hamide v The Queen, it was submitted that the following guiding principles are relevant to deciding whether to discharge a jury: the fairness of the trial; the nature of the statements said to have given rise to the prejudice; the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the wrongful conduct; and the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence.
8. It was accepted that significant leeway must be allowed to the trial judge to evaluate these considerations: Crofts v The Queen at [20].
9. In relation to the fairness of the trial, it was submitted that the trial judge simply observed that "[t]he complainant's intoxication is not such as would prevent her from consenting if she chose to consent" once and without context. It was submitted that the wording of this direction invited an inference that the complainant could not "choose to" consent when considered in conjunction with the statement in the Crown prosecutor's opening address that the complainant was incapable of consent, which was reinforced in the Crown prosecutor's closing address. It was submitted that this gave rise to prejudice against the applicant that was unfair.
10. The applicant further submitted that the following factors mean that the impugned statements in the Crown prosecutor's opening address were "such as to 'have been vividly etched on the mind of the jury'": it was a relatively short opening address; the trial judge provided no directions to the jury; and it did have an impact on the jury's determination of issues at the end of a relatively short trial.
11. The applicant submitted that the seriousness of the Crown prosecutor's statement went to the heart of the contested issue of the level of intoxication and consent. The "mishap" occurred on day 1 in a relatively short trial. It was also submitted that the Crown prosecutor's statement "may well be categorised as deliberate wrongful conduct" as it would have been prepared in advance and was said on three occasions.
12. The applicant submitted that the effectiveness of the trial judge's direction must be doubted as it was given in summing-up, seven days after the impugned statement; the lack of proximity made the opening "unable to be remedied". It was also submitted that the trial judge failed to give a direction that an opening address is not evidence.
13. As for ground 3, the applicant submitted that in order to avoid a miscarriage of justice, it was necessary for the trial judge to "give the jury a full direction of the law on intoxication" both after the Crown prosecutor's opening address and during the summing up. It was submitted that the failure to give such a direction meant that the relevance of the complainant being "substantially intoxicated" was allowed to remain throughout the trial as both a matter of law (incorrectly stating s 61HA(6)(a) applied to all counts when in fact the common law applied to counts 1, 2 and 5). It was also submitted that her Honour had to direct the jury that "substantial intoxication alone cannot negate consent".
14. The applicant submitted that the complainant's intoxication was irrelevant unless the Crown case was that she was so intoxicated that she was unable to consent. The applicant also submitted that the Crown prosecutor's submission in relation to the trial judge's directions on consent (that intoxication was "relevant in terms of surrounding circumstances and [the] complainant's credibility") was incorrect; intoxication was solely relevant to the issue of consent. This submission also contended that a "full direction of the law on intoxication and consent" was required and that her Honour ought to have directed the jury that the intoxication of the complainant could not be taken into account (as substantial intoxication was not relied upon as proof of lack of consent).
15. The applicant submitted that the actual level of the complainant's intoxication was never stated by the Crown prosecutor and there was no theoretical estimation provided by an expert witness. The applicant also noted that the Crown prosecutor used varying descriptions of the complainant's intoxication, including that she was "so substantially affected by alcohol", "so drunk", undeniably drunk", "a bit intoxicated" and was "shocked into a state of sobriety".

Crown submissions

1. I will address the Crown submissions in my consideration below.

Consideration: Grounds 1-3

1. Grounds 1, 2 and 3 are all closely connected: under ground 1, the applicant contends that the trial miscarried because of the suggestion in the Crown opening that one of the bases upon which the Crown case was put on lack of consent (and knowledge of that fact) was that the complainant was too intoxicated to freely and voluntarily consent, and that the applicant must have known that she was not consenting as she was so intoxicated. On that basis, it was contended that the jury should have been discharged after the Crown opening (ground 2) and that the trial judge erred in not directing the jury about intoxication immediately after the opening address (ground 3).
2. The exchange between the trial judge and defence counsel after the Crown opening is informative, which is why I have extracted it in some detail above. Contrary to what the applicant now contends, it was common ground at that time that the Crown made no incorrect statements of the law and that the Crown case was put on alternate bases. The nub of the complaint at the time was that the defence was taken by surprise by the suggestion that the Crown relied upon substantial intoxication as being relevant to consent and that the two bases upon which the Crown relied were logically inconsistent. The argument proceeded on a different basis in this court
3. The transcript reflects that the trial judge was not satisfied that there had been any unfairness, and thus no basis to discharge the jury. Nor did she consider it appropriate to give an intoxication direction at that time for the following reasons: 1. The Crown opened on the complainant's anticipated evidence, namely, that she expressed her lack of consent by words and actions; 2. The Crown opening was so lengthy and detailed that it was unlikely that the jury would have remembered all of it; 3. The jury would not have properly understood all of the detail of the legal elements in the opening; 4. The jurors were not taking notes of the opening; 5. It was not suggested that there had been any incorrect statement of law in the opening; 6. The Crown put its case on alternate bases in the opening which may well be narrowed by the conclusion of the evidence; 7. If the Crown case was narrowed by the close of the evidence, the trial judge would not need to give directions on all of the matters raised in the opening; 8. Her Honour was not in a position to discharge the jury as she had not heard the evidence; 9. Her Honour observed to defence counsel that, given that it was not known what the complainant's evidence would be, the question of what direction she should give on intoxication would have to wait until the evidence was given; 10. The Crown prosecutor expressly told the jury to disregard her statements of the law if they were inconsistent with her Honour's summing up; and 11. The impugned statement is a single sentence in a legally dense opening address.
4. In assessing whether the trial miscarried due to this discrete part of the Crown opening, it is pertinent to have regard to how the trial proceeded and examine the question of miscarriage retrospectively. By the end of the trial, even if the opening did cause any prejudice (and I am not satisfied it did), such prejudice was cured by the following: 1. Defence counsel indicated that he would read the transcript of the opening overnight before giving his closing address. There was nothing further raised on this issue after the transcript was made available; 2. Defence counsel dealt with what the Crown prosecutor had said in his own opening address by telling the jury that the extent of the complainant's intoxication was a matter in dispute; 3. Consistent with the Crown opening, the complainant gave evidence that she had conveyed her lack of consent to the applicant. There was no evidence adduced to suggest that the complainant was not able to consent due to intoxication or was so intoxicated the applicant would have known that she could not consent; 4. There was no suggestion by the close of the trial that the Crown relied on intoxication to prove either lack of consent or the applicant's knowledge of that fact. The Crown prosecutor expressly disavowed that as a basis for establishing guilt; 5. The trial judge acceded to defence counsel's request and included in MFI 16 the direction that the complainant was not so intoxicated as to prevent her from consenting if she chose to consent. That direction (in MFI 16) was approved by defence counsel; 6. The applicant does not make complaint about the directions that the trial judge gave on the elements of the offences; and 7. By the time that the trial judge summed up to the jury, the trial had proceeded for eight days, and 16 witnesses had been called.
5. As against these factors, the applicant submitted that it was a relatively short opening address (contrary to the position taken below), that the trial judge provided no directions to the jury and that it simply must have had an impact on the jury's determination of issues at the end of a relatively short trial.
6. Having regard to all of these matters, I am not satisfied that the trial miscarried as a result of the reference by the Crown prosecutor to substantial intoxication as being relevant to whether the complainant had freely and voluntarily agreed to have sexual intercourse with the applicant. In these circumstances, I do not accept the applicant's contention that the impugned sentence would have been "festering" in the juror's minds throughout the trial. The trial judge's directions were entirely correct, and it must be assumed that the jury followed those directions: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15.
7. The jury were directed that the complainant was not so intoxicated as to prevent her from consenting if she chose to. In those circumstances, it is difficult to see how the jury could have reasoned that because the complainant was intoxicated, she was not consenting. The respective cases were clear. The defence case was that after the complainant said, "I'm not that kind of girl" the applicant desisted whereas the Crown case was that he persisted. In those circumstances, it is difficult to see how the Crown's opening could have cause the trial to miscarry.
8. It follows from these findings that I am not satisfied that the trial miscarried due to the decision by the trial judge not to discharge the jury either. It was common ground that the relevant principles are derived from the decision of the High Court in Crofts v The Queen. The question for the appellate court is not whether error is disclosed in the reasons for the decision not to discharge the jury but whether a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act has been established. In assessing whether the trial miscarried for the purposes of both grounds 1 and 2, I have had regard to what actually happened at the trial and assessed the question retrospectively. The matters enumerated above at [147] are relevant to that assessment.
9. Ground 3 asserted error in the failure by her Honour to give the jury a full direction as to the law on intoxication and consent after the Crown opening. That was not the position that was taken at trial. As the extract above shows, although defence counsel at first suggested that such a direction should be given, he resiled from that position when her Honour pointed out that such a course would involve leaving a basis for the Crown to establish lack of consent that the defence submitted was not available.
10. I am satisfied that it would not have been appropriate for her Honour to give a "full direction on the law of intoxication and consent" for the reasons provided by her Honour. Such directions were not ultimately required as they did not arise on the evidence. Nor were they sought. It would have been confusing to the jury and potentially prejudicial for the judge to give a full direction on an additional basis upon which the applicant may be convicted when that was not ultimately the Crown case.
11. I have considered whether it would have been open to the trial judge to make it clear to the jury in her summing up that although the Crown opened on two bases, she was only closing on one and disavowing the other. Although such a course would have been open to her Honour it was not requested by defence counsel who instead sought a direction in MFI 16 and orally that (contrary to the Crown opening) the complainant was not so intoxicated as to prevent her from consenting if she chose to consent.
12. As for the suggestion raised in this court for the first time that the Crown prosecutor's statement was contrary to s 61HA(6), I am not satisfied that the trial miscarried on this basis. As her Honour pointed out, the Crown prosecutor had opened "very broadly". I am satisfied (and the Crown accepted) that the Crown prosecutor was not strictly correct that the same test for consent applied to count 6 (s 61HA) as to the indecent assaults (common law). The tests are broadly similar, and what the Crown actually said was that the "same considerations" applied. It seems to me that she was simply trying to convey in broad terms the matters to which the jury would have regard. No complaint was made about this at the time. I am satisfied that it would have had little or no impact on the trial, especially in light of the directions given by the trial judge in her summing up.
13. To the extent that it was suggested that the Crown prosecutor's statement "may well be categorised as deliberate wrongful conduct", any such suggestion must be rejected for the reasons I have already provided and for the additional reasons provided under ground 4 below.
14. Finally, contrary to the applicant's contention, it is not the case that evidence that a complainant in a sexual assault trial was intoxicated is irrelevant and inadmissible unless the Crown is relying on substantial intoxication as being relevant to whether the complainant was able to freely and voluntarily agree to have sex. The applicant did not rely on any authority for such a proposition. The evidence that a complainant is intoxicated can be relevant on a number of bases in a sexual assault trial. In this trial, it was relevant, on the Crown case, as to why she left the dinner party when she did and why she went to the applicant's hotel room. It was also relevant to her memory of events and the observations of her by those who saw her after the assault.
15. The proposition that evidence of the complainant's intoxication was irrelevant and inadmissible was repeated under grounds 4 and 7. I do not propose to repeat this finding under those grounds.
16. For these reasons, I am not satisfied that grounds 1, 2 or 3 have been established.

Ground 4: The Crown prosecutor's presentation of the complainant's level of intoxication to the jury

1. In her closing address, the Crown prosecutor said this in the context of the complainant's credibility: "For example, there were a series of questions that were put to [the complainant] in cross examination about whether or not she was asked to have some wine and agreed as opposed to being encouraged and she was, you might find, very straightforward in answering those questions. There was no doubt in her mind about her evidence and what she says occurs. … Now, although her evidence was strong and straightforward on what happened and was very clear about what she said occurred in the room, that is what the accused did and what she said. You will remember what she told you about being shocked in effect in to sobriety because of what occurred and using your own common sense and experience of life, you might think, well that makes sense, that she might be a bit intoxicated and then she's shocked into a state of sobriety because of this situation that she's in, in a hotel room with, really, someone who's basically a stranger and doing these things to her. She did tell you that she didn't have in effect and these are my words, not hers, a picture-perfect recollection, of certain parts of the evening, so for example when she was walking from the apartment where the dinner party was to Shangri-La, she doesn't have a picture-perfect recollection exactly what happened. She even said during her evidence that she was a little uncertain in the context of the struggle as to the chronology of each of the acts that occurred in the room. … I said that she was not seeking to tailor her evidence to ensure that it put her in the best light. I just want to give you an example of that. She gave some evidence that she told the people at the dinner party that she was allergic to alcohol and she was then asked some questions at a later time in her evidence about whether or not she ever drank any alcohol at all, and she gave the honest and straightforward answer that she would tell everybody that she was allergic to alcohol, but that she would occasionally drink but only a few times a year." (Emphasis added.)
2. She went on to address the CCTV evidence of the complainant appearing intoxicated in this way: "… [W]hat the footage shows is that [the complainant] undeniably at that stage was drunk and she was sick. She was unable to walk without support, and it shows that the accused was right there next to her in her state, leading her to his hotel room. I ask you to hold that in your mind. Hold it in your mind when you come to think about what [the complainant] said about being at the party, about being unable to sit and stand properly, about misplacing her cosmetics bags, about the discussion at the dinner party that was had between the males about her needing to home and who would take her, about it being decided that the accused would take her home, about her standing at the doorway, she said and just waving goodbye rather than making any individual goodbyes."

Applicant's submissions

1. The applicant contends under this ground that a substantial miscarriage of justice was occasioned by the above portions of the closing address for the following reasons.
2. First, the Crown prosecutor submitted that the complainant was intoxicated (in opening and closing address) but there was no "independent", "expert" evidence led to support that submission. The applicant contends that in the absence of such evidence the submission was not open, particularly when the Crown had not tendered evidence of the results of the analysis of the complainant's blood sample taken around 4.30am.
3. Secondly, it was submitted that the Crown prosecutor's closing address concerning intoxication was inconsistent in that the complainant could not be both "a bit intoxicated" and "undeniably…drunk" at the same time. The applicant submitted that it was incumbent on the trial judge to "clarify for the jury during the…closing address… as to what was the Crown's case as to the actual level of intoxication of the complainant at 9.49pm on 26 December 2015 and how this affected the law on consent".
4. Thirdly, it was submitted that the Crown prosecutor's opening address differed from the closing address because in the opening address it was suggested that the complainant was so substantially intoxicated as to be incapable of consent whereas in the closing address it was put only that the complainant was "a bit intoxicated". It was submitted that she "could not have been both at the same time".
5. Fourthly, it was contended under this ground that the Crown prosecutor's submission that the jury should accept that the complainant's evidence that she was "shocked into sobriety" was "an absurd claim" and it was not open to close on that evidence in the absence of "scientific expert evidence… to support such an assertion".
6. It was also submitted that the Crown should not have been permitted to rely on intoxication in the Crown case unless it was relied upon to establish substantial intoxication.

Consideration: Ground 4

1. Dealing with the discrete complaints under this ground separately, it was open to the Crown prosecutor to submit that the complainant was intoxicated (in opening and closing address) in the absence of "independent", "expert" evidence. Lay observations of intoxication are routinely adduced in trials. In the present case, the observations were made by, inter alia, a paramedic, a police officer, and a medical practitioner. There was also a CCTV footage, which was provided to the court and which, having viewed it for the purpose of considering this appeal, clearly shows the complainant needing to be supported as she walked to the hotel and in the lift leaning on a side rail and bending over, visibly ill.
2. Nor is it the case that when the Crown relies on substantial intoxication being relevant to the question of consent that expert evidence of the level of intoxication is required. Such expert evidence might be relevant in a case where a complainant has "alcohol induced fragmentation of memory" such as in Holt v R [2021] NSWCCA 140. There was no need for the Crown to particularise the complainant's precise degree of intoxication in the circumstances of this case. Nor was it necessary to adduce evidence of the size of the wine servings or the speed at which the complainant consumed the wine. It was a matter for the tribunal of fact to consider the evidence of intoxication having regard to the CCTV footage and the observations of those who saw the complainant that night. The evidence was that she had three glasses of white wine, had not drunk it before, was not a regular drinker, weighed 52kgs, was 170cm tall and last ate at 9pm. There was no other evidence adduced as to what she had eaten that day.
3. Nor am I satisfied of any inconsistency between the terms "undeniably drunk" and "a bit intoxicated", used by the Crown prosecutor in her closing address, as the extracts above show. It is tolerably clear that these phrases refer to different periods: the former expression was used to describe the complainant in the CCTV footage in the lift at around 9.50pm, and the latter expression was used to describe the complainant when she left the hotel room at about 11pm, at which point, on her own evidence, she had started to sober up.
4. I do not accept the applicant's contention that the Crown changed its case from the opening to the closing. As the extract from the opening address at [105] above makes clear, the Crown opened its case on lack of consent on two bases. Namely that the complainant "did not consent and was never in a position to consent given that she was so substantially affected by alcohol". The case that she did not consent was based on the evidence that she communicated to the accused, when they were in the room on the bed, through the resistance to the accused, and also what she said, that she did not consent.
5. Thus, the Crown's primary case was of actual lack of consent given what she told police and others from the outset. Although substantial intoxication was flagged in the opening address, it did not ultimately go to the jury. Contrary to the applicant's submissions, that did not represent a departure from the Crown case at opening.
6. It is permissible for a Crown prosecutor to open its case on alternate bases. Although it was always the Crown case that the complainant communicated her lack of consent to the applicant by words and actions, it is not difficult to see why the Crown prosecutor opened on a second basis. The complainant's account to police was that she expressed her lack of consent to the applicant by words and actions. But there was also evidence in the Crown case, including the CCTV footage, which suggested that the complainant was intoxicated as she entered the hotel. In these circumstances, the Crown was not in a position to know what evidence may emerge from the complainant in cross-examination about her level of intoxication. That is why it was available to and appropriate for the Crown to open on alternate bases; to see how the evidence fell and then narrow the case for the closing address. That is what happened here. As the trial judge observed to defence counsel in the exchange after the Crown opening, it will often be appropriate for a Crown prosecutor to take a cautious approach when opening in a case like this.
7. It is to be accepted that in the present case in seeking to open on these two alternate bases the Crown opening was slightly ambiguous as to whether the case that she actively resisted and the case that she was too intoxicated to consent were alternate cases or could both be established. Defence counsel understood the case to be put in the alternative. To the extent that there was any loose language in this regard I am not satisfied that the trial miscarried in any way for the reasons I have already provided under grounds 1-3. The fact remains that the Crown case was that the complainant conveyed her lack of consent to the applicant. That was her evidence and the Crown opened and closed on that basis.
8. Nor am I satisfied that it was "absurd" of the complainant to suggest that she was "shocked" into a state of sobriety. That was clearly the complainant's description of how she felt; it was not expert pharmacological evidence. In any event, that was entirely a matter for the jury.
9. For these reasons, I would not uphold ground 4.

Ground 5: The absence of expert evidence on intoxication at the trial

1. The applicant submitted that the trial miscarried as there was no expert evidence adduced as to the level of the complainant's intoxication at trial. He sought to adduce "new" or "fresh" evidence on this issue at the appeal.
2. The reports of forensic psychologist Dr Byron Collins dated 10 December 2021 and 22 September 2022 were before this court in support of this ground and Dr Collins gave evidence and was cross-examined at the hearing of the appeal.
3. In Dr Collins' expert opinion, had the complainant consumed three glasses of white wine over about a two hour period her blood alcohol level could have been raised by a maximum of 0.06% after the completion of drinking, and may be in the "ballpark" of 0.045% an hour later, just before 9.49pm. Dr Collins opined that a normal individual would likely experience minimal "compromisation" of sensory and motor central nervous system faculties after consuming two to three standard drinks and could exhibit the clinical signs/symptoms of mild euphoria, talkativeness, decreased inhibitions and increased sociability. He stated that it would be unlikely for there to be any significant loss of critical judgment. He also stated that there are a number of possible causes for the complainant's vomiting other than intoxication, such as food poisoning, concurrent viral or bacterial infection or the adverse effects of drugs.
4. In relation to being "shocked out" of intoxication, Dr Collins gave evidence that it is pharmacologically and physiologically impossible for the clinical signs and symptoms associated with intoxication to be negated by an individual experiencing an emotionally disturbing event.
5. During cross-examination, Dr Collins confirmed that in reaching the conclusion in his report that the complainant's rough blood alcohol concentration was 0.045% just prior to 9.49pm, he assumed that each of the three glasses had 100ml in them, that she had also consumed food and that she had consumed the 300ml of white wine over a two-hour period. Dr Collins accepted that these figures are theoretical and "ballpark" and may change if the assumptions changed. He agreed that a range of factors impact an individual's blood alcohol concentration, including the type of alcohol consumed, the quantity of alcohol, whether the person consumed food and how much, the speed of alcohol consumption, the person's weight, whether there is an abnormality in the gastrointestinal tract or liver disease and whether the person drinks regularly. He explained that if someone is 52kg and has a larger amount of fat on their body, their blood alcohol concentration might be in the range of 0.06% but is unlikely to be higher.

The applicant's submissions

1. The applicant submitted that the Crown Case Statement noted that the complainant had drunk 2.5 to 3 glasses of white wine, which put the defence on notice as to the approximate amount of alcohol consumed. It was submitted that this means Dr Collins' report might be "new" evidence as the applicant could reasonably have expected to have become aware of and produced it at the trial. The applicant submitted that, on the other hand, it could be considered "fresh" evidence as the complainant's alcohol consumption was unlikely to be at a level where there would be a factual issue of substantial intoxication which would have prompted the defence to obtain such evidence.
2. The applicant submitted that the evidence about the complainant's blood alcohol concentration meets the test for "new" evidence as it proves the applicant's innocence or gives rise to such a doubt about his guilt that the verdicts cannot be allowed to stand. The two reasons for this are: the evidence undermines the Crown prosecutor's statement in the opening address that the complainant was so affected by alcohol that she could not freely and voluntarily consent; and it undermines the complainant's evidence that she was "so drunk" she could not remember how she got to the applicant's room and accordingly undermines her credibility.
3. The applicant submitted that, on the other hand, it could be considered "fresh" evidence as the complainant's alcohol consumption was unlikely to be at a level where there would be a factual issue of substantial intoxication which would have prompted the defence to obtain such evidence. It was submitted that Dr Collins' evidence about the potential "compromisation" of faculties is fresh evidence as alcohol was not raised to a level where there may have been factual issues of substantial intoxication.
4. It was further submitted that Dr Collins' evidence about being "shocked out of intoxication" was also fresh as defence had no prior indication such an "absurd claim" would be made.

Crown submissions

1. The Crown submitted that Dr Collins' expert opinion about the complainant's likely blood alcohol concentration and the likely effects of this on her demeanour was neither "fresh" nor "new": the applicant was on notice that this would be an issue in the trial given the evidence about her intoxication and it was always open to the applicant to obtain a report about the complainant's likely blood alcohol concentration. The additional submissions made are addressed in my consideration below.

Consideration: Ground 5

1. The relevant principles for the admission of "new" or "fresh" evidence were discussed by Simpson J (as her Honour then was) in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [107]-[108] as follows: "'Fresh' evidence has been defined by Mason J (as he then was) in Lawless v The Queen [1979] HCA 49; 142 CLR 659 at p 675 as: '... evidence of which the accused was unaware at the time of his trial and ... evidence which he could not have discovered with reasonable diligence.' 'New' evidence, on the other hand, is evidence that does not qualify as 'fresh', either because it was available, but not used, at first instance, or because, in the exercise of reasonable diligence it could have been obtained. The distinction is important in the present case. If evidence qualifies as fresh evidence, its admission may depend upon a further criterion - the evaluation of its capacity to have affected the outcome of the proceedings at first instance. If it is not judged to have that capacity, its admission is pointless, and, while it has to be considered in order for that evaluation to be made, the evidence may not, in the result, be acted upon: see, for example, Fordham."
2. The principles were re-stated in Xie v The Queen (2021) 386 ALR 371; [2021] NSWCCA 1 at [433]-[434]: "The Crown contended that none of that evidence answered the description of 'fresh' or 'new' evidence and it was all therefore inadmissible. In MRW v R [2011] NSWCCA 260 at [46] ('MRW'), Bathurst CJ identified the three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, namely: 'First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial …; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant.' With the first question, where the material in question is evidence that was in existence as at the time of the trial, the relevant issue is whether that material 'could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case' (Ratten at 516 per Barwick CJ). If the material does not meet the first of the above tests, that is, if it is not fresh evidence but only new evidence, then there would only be a miscarriage of justice if the appellant satisfies this Court that the new evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt (Ratten at 518 and 520)."
3. The principles derived from the above decisions were again re-stated in SC v The Queen [2023] NSWCCA 60.
4. I am not satisfied that this evidence is "fresh" evidence. It was always available to be obtained by the applicant exercising due diligence.
5. Given that the evidence is new rather than fresh, the trial will have miscarried in its absence only if Dr Collins' evidence establishes the applicant's innocence or gives rise to such a doubt about his guilt that the verdicts cannot be allowed to stand.
6. As I have already observed in considering ground 4 above, there is no requirement for the Crown to call expert evidence when relying on substantial intoxication as being relevant to free and voluntary consent, although it is certainly permissible. But that was not this case. The significance of this "new" evidence falls to be considered in the contest of the Crown case as it went to the jury.
7. I am satisfied that the evidence is relevant to question of the complainant's credibility the extent that, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55(1) of the Evidence Act 1995 (NSW). But it seems to me that it has low probative value.
8. I have already described the extensive evidence from witnesses and the CCTV footage to support the complainant's evidence that she felt intoxicated. The fact that the CCTV footage records the complainant having to be supported as she walked to the hotel and her physical appearance in the lift is relevant to her narrative as to how she ended up in the applicant's room in the first place, her recollection of events and the observations made by police and the paramedic.
9. Although I am satisfied that Dr Collins' evidence would be relevant to the complainant's credibility, it does not have significant probative value given the other evidence in the case strongly suggestive of her intoxication. Further, Dr Collins made a number of concessions in his cross-examination in this court which reduce the probative force of his evidence. If, as the applicant contends, the complainant was exaggerating her level of intoxication, that does not explain why she appears intoxicated in the CCTV footage, was seen to vomit by police and her boyfriend, and was described as needing assistance by the paramedic. As a matter of practical reality, the capacity of Dr Collins' evidence to undermine the complainant's credibility is severely limited given the evidence independent of her that established her intoxication.
10. As for the suggestion by Dr Collins that there might have been other reason besides intoxication as to why the complainant, who was described at the time as appearing intoxicated, might have vomited, there was no evidence that anybody else at the function had food poisoning. Nor was there any reason provided as to why the complainant may have had food poisoning. Even if the complainant was vomiting from food poisoning (rather that solely from the effects of alcohol), it is difficult to see how that assists the applicant's argument. It was well open to the jury to reason that if the complainant was feeling unwell and vomiting as she left the dinner party, for whatever reason, she was unlikely to be actively seeking sexual intercourse with the applicant, as he contended she was, prior to her entering his hotel room.
11. Nor do I accept the applicant's submission that this "new" evidence is significant because it undermines what the Crown said about intoxication in her opening. That part of the opening formed no part of the directions to the jury as to the elements of the offence.
12. As for Dr Collins' evidence that you cannot be "shocked into sobriety", his evidence concerns a physiological phenomenon whereas, as I have already observed above, the complainant was simply describing how she felt as a lay person.
13. Overall, the evidence of Dr Collins falls far short of proving the applicant's innocence or raising such a doubt about guilt that the convictions cannot stand.
14. I would not uphold ground 5.

Ground 6: The "cheat fail" on the complainant's academic transcript

1. A pre-trial issue was raised by defence counsel after the opening address. Defence counsel sought leave to cross-examine the complainant on an academic transcript which had been subpoenaed by the defence from the TOP Education Institute, Sydney. That transcript included the result for one of her subjects as being "cheat fail". Further enquiries had been made of that institution, but no further information was forthcoming from the Registrar. Defence counsel submitted that on the face of the document the complainant had cheated in an exam.
2. The Crown objected to the complainant being cross-examined on this document on the basis of relevance and failure to meet the test in s 103 of the Evidence Act.
3. The trial judge was concerned that there was no indication from the document that the complainant was under an obligation to tell the truth at the time. Although it might be inferred that the process of examinations requires some standard, the difficulty was that it was not known even whether there was an exam or what was involved at all. In those circumstance, the trial judge was not satisfied that the material was something that could "substantially" affect her credibility. Her Honour concluded: "HER HONOUR: --. It's two years distant from the matter before the Court and although it seems to be something that is part of a formal course of study I'm not sure it equates with under an obligation to tell the truth. On the material currently placed before me I'm not inclined to allow the admissibility of it. I do not determine that it would substantially affect the credibility of the complainant."

Applicant's submissions

1. The applicant submitted that a substantial miscarriage of justice was occasioned as a result of the trial judge's ruling to disallow the complainant to be cross-examined as to the "cheat fail" on her academic record in 2017.
2. The applicant submitted that the exception to the credibility rule in s 103 of the Evidence Act applied as the evidence could "substantially" affect the assessment of her credibility. It was submitted that it ought to have been submitted because "academic misconduct is a very good example of where there was some (moral or legal) obligation to tell the truth". It was also submitted that the trial judge erred when she found the cheating was two years distant to the matter before the court (a matter the court may have regard to under s 103(1)(b) of the Evidence Act) because it, in fact, occurred one year prior to the trial commencing.

Consideration: Ground 6

1. Section 102 of the Evidence Act provides that "Credibility evidence about a witness is not admissible". There are a number of exceptions to that rule, one of which is in s 103 of the Evidence Act, which is in these terms: 103 Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to - (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.
2. The trial judge upheld the Crown objection to the defence being permitted to cross-examine the complainant on the subpoenaed document due to the paucity of detail in it. There was no evidence as to what the "cheat fail" related to and no evidence that it related to a circumstance where there was an obligation to tell the truth. In those circumstances, no error is disclosed in the finding by the trial judge that such cross-examination could not substantially affect the complainant's credibility.
3. No error is disclosed in her Honour's assessment of the potential for the document to be used as a basis for substantially affecting the complainant's credibility. Nor is any error disclosed in her Honour's reference to the effluxion of time of two years: the "cheat fail" entry was recorded two years after the alleged sexual assault in this matter.
4. I would not uphold ground 6 for these reasons and the reasons of Hamill J which I agree with and adopt.

Ground 7: Unreasonable verdict

1. The applicant submitted that the verdicts of the jury should be set aside on the ground that they are unreasonable or cannot be supported, having regard to the evidence. The applicant relied on 12 separate arguments, one of which contained four sub-arguments and another which contained eight sub-arguments. The applicant also relied on two "new" pieces of evidence: the CCTV footage and the evidence of the complainant's home address. I shall consider that new evidence as it arises in the context of the applicant's submissions.

Applicant's submissions

1. The applicant submitted that there are 12 issues of "inconsistencies, discrepancies or other inadequacy" with this conviction, namely: 1. The absence of the applicant's DNA on the vaginal swabs and smears, the complainant's bra and underpants; 2. The inadequacy in the evidence of the complainant's alleged bruises and scratches, including the evidence of Dr Bastas that the bruises may be older; 3. The lack of evidence of the complainant's skin from under the applicant's fingernails or the complainant's DNA on the applicant's watch; 4. The inadequacy in the evidence of the complainant allegedly biting the applicant's tongue, as there was no DNA testing and no evidence the complainant made such an allegation to police or Dr Bastas; 5. The inadequacy in the evidence of the complainant allegedly kicking the applicant, as the complainant did not tell DSC Lieschke, Ms Milne or Dr Bastas that she kicked him and there was no evidence of injury; 6. The lay "non-expert" interpretations of whether a torn thread from the complainant's bra had been caused by the applicant. The applicant made four sub arguments in respect of this evidence. The applicant submitted that: 1. The evidence of the bra and damage to the bra is inadmissible because of the lack of expert evidence (counsel withdrew this submission during the hearing of the appeal); 2. In the absence of expert evidence, the bra did not support the complainant's allegations; 3. The complainant's evidence about damage to the bra was not supported by complaint evidence; and 4. The nature of the damage opened on differed from the evidence the complainant gave and that the Crown closed on. 1. The lack of explanation as to how the complainant's cardigan and dress were taken off her by the applicant, which adversely impacts the complainant's credibility; 2. The Crown prosecutor's subjective interpretations of the CCTV footage, which the applicant submits were not supported by the complainant's evidence. There were eight sub points to this submission. One aspect was the contention that in the absence of supporting evidence from the complainant, the Crown prosecutor's submissions about what was occurring were not open. The applicant also submitted that the complainant's phone records are inconsistent with the complainant's evidence as there is no record of the complainant's text to her boyfriend, and there are Vodafone entries during the period that the complainant said she was looking for her phone; 3. The absence of expert evidence about the complainant's level of intoxication; 4. The absence of independent expert evidence about the complainant's vomiting; 5. The Glasgow Coma Scale assessment of the complainant's level of consciousness as 15/15; 6. Ms Milne's evidence as to whether the complainant said on the night that the applicant offered to take her back to a hotel or her hotel. It was submitted that this may have led to doubt about the complainant's credibility in circumstances where there was no evidence that the complainant was living in a hotel. The applicant submitted that the trial judge made a partial error in stating during summing up that the complainant said there was an agreement to go home, and that the complainant told Ms Milne that there was an agreement to go back to her hotel.

Crown submissions

1. The Crown provided detailed submissions responding to each of these arguments in turn. I will address those submissions in my consideration of this ground below.

Consideration: Ground 7

1. The relevant principles for an appellate court to apply when considering whether a verdict is "unreasonable" in this context are well established. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63, Mason CJ, Deane, Dawson and Toohey JJ explained the relevant test in this way (at [7]) (footnotes omitted): "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (Emphasis added.)
2. The High Court re-stated the applicable test in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In their joint judgment at [13]-[14], French CJ, Gummow and Kiefel JJ stated the following (footnotes omitted): "The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' … In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.'"
3. The test was re-stated again more recently in Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25. The joint judgment of Gageler, Keane, Gordon, Steward and Gleeson JJ confirmed (at [8]-[9]) that the reasoning in the joint judgment in M v The Queen requires: "… [T]hat 'the question which the court must ask itself' when performing that function is 'whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty', that question being 'one of fact which the court must decide by making its own independent assessment of the evidence'. The joint judgment in M made clear that 'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses'. The joint judgment equally made clear how those considerations are to impact on the court's independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated: 'It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for 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'." (Citations omitted)
4. I am not satisfied that the verdicts are unreasonable. I consider the Crown case to have been a relatively strong one.
5. The complainant gave cogent evidence. There is the CCTV footage of her both before and after she and the applicant entered the hotel room that is consistent with her evidence. The footage at 9.49pm shows her in the lift being propped up by the applicant, unable to walk without support, and then being led to the applicant's hotel room. Later, at 11.04pm, the footage shows her leaving the room with the torch on her phone on, visibly upset, hurrying away and waiting behind a screen outside the hotel.
6. There is also the physical evidence of the complainant's underpants in the hotel room that she left there, consistent with her evidence that she was worried about waking up the applicant.
7. As for the evidence of complaint, the complainant called her boyfriend immediately afterwards and told him that she was nearly raped (which is depicted in the CCTV footage of her in the hotel lift with a phone to her ear and on her phone records). Her boyfriend picked her up from the hotel and took her to the police station. She also called her friend in Singapore, Ms Feng, while she waited to be picked up and told her that she was nearly raped (which is on her phone record). Her complaint to Dr Bastas at 3.15am was consistent with her evidence about how much she drank, that she felt dizzy and unsteady, and the details of the offence. Her complaint to the paramedic Ms Milne was also largely consistent. Ms Milne noted that the complainant was nauseous and walked unsteadily. DSC Lieschke said she looked dishevelled, and he thought that she might have been intoxicated.
8. The complainant had bruises and scratches on her legs, inner thighs and arms, which Dr Bastas said could be the result of an impact injury or pressure applied to her. Although the date of the bruising was unclear, her evidence was that it was unlikely that the scratches to the inner thighs could be accidental.
9. Turning to the specific complaints made by the applicant I respond as follows.
10. The absence of the applicant's DNA on the vaginal swabs and the complainant's underwear was explained by the DNA expert, Dr Trabuio. There are difficulties involved in retrieving foreign DNA from the vagina where the allegation is digital rather than penile penetration. The available DNA would come from skin cells rather than blood, saliva or semen. Only 30% of assaults by way of digital penetration will result in the recovery of foreign DNA.
11. Dr Trabuio also gave two explanations for the fact that the applicant's DNA was not found on the tape lift from the underpants and bra: either the applicant did not touch the item in the area that was tape lifted; or he touched it and did not deposit enough DNA to detect. The absence of the applicant's DNA on the items was repeatedly put to the jury in defence counsel's closing address and obviously did not give rise to a reasonable doubt.
12. As for what was said to be the inadequacy of evidence concerning the complainant's bruises and scratches, I do not accept the applicant's contention that Dr Bastas' evidence about the age of the bruises did not support the complainant's evidence. As stated above, the scratching on her inner thighs was cogent evidence. In any event, Dr Bastas' evidence was also put to the jury in defence counsel's closing address.
13. There was a simple explanation as to why there was no evidence of the complainant's skin from under the applicant's fingernails or the complainant's DNA on the applicant's watch: there was no testing of these areas. That was a neutral fact; if it had been tested it may well have located the relevant DNA, but the jury should not have speculated about that. Further, the absence of a specific initial complaint by the complainant of being scratched is of little consequence given the consistency of her complaint that night overall.
14. Similarly, the fact that the complainant told the paramedic (but nobody else) that she had bitten the applicant's tongue was a matter the jury could have regard to when assessing the complainant's account. As with all of these minor discrepancies, it was up to the jury to give that little weight.
15. The applicant also relied on the fact that the complainant alleged that she kicked the applicant but there was no evidence of injury to the applicant. But the complainant's evidence was actually that she tried to kick him. In those circumstances, even if a forensic procedure had been conducted on the applicant, the action described was not one that would necessarily have left a mark. Again, the significance of any omissions from account given that night falls to be considered in the context of the complainant's sick and dishevelled state and the fact that she was seeking medical treatment, not attempting to make a detailed statement for court.
16. The applicant placed significance on what was said to be the lay "non-expert" interpretation of whether a torn thread from the complainant's bra had been caused by the applicant. This complaint ignores the fact that the complainant was able to give direct evidence about the damage to her bra. Whether there was visible evidence to support the complainant's statements was a matter for the jury. The jury could either accept or reject that evidence but even if the jury rejected it, it does not follow that they were bound to have a doubt about her credibility overall. As for the complaint that the Crown misdescribed the damage in her opening (by describing the buckle being damaged), the Crown prosecutor told the jury that what she said was not evidence. The Crown correctly described the damage in her closing. The difference in the nature of the damage the Crown prosecutor opened on compared with the evidence given is of little consequence in these circumstances. Nor was any complaint made about that at the time.
17. Although the applicant also placed weight under this ground on the lack of explanation about how the complainant's cardigan or dress were removed, the complainant's evidence was in fact that her clothing was removed "aggressively", "forcefully" and "forcibly" during a struggle. She was never asked in cross-examination to provide better particulars as to how that occurred.
18. As for the complaints about the Crown prosecutor's "interpretations" of the CCTV footage, I have viewed that footage and am satisfied that it was open to the Crown to describe it in the manner that she did. I would describe the footage as depicting: the applicant with his arm around the complainant as they entered the hotel (consistent with her evidence that she needed assistance walking); the complainant steadying herself and bending over with her hands in front of her mouth in the lift (consistent with her evidence that she was intoxicated and sick); the complainant approaching the lift after the alleged offences with the torchlight on her phone on (consistent with her evidence that she used the torchlight to find her clothes); the complainant calling her boyfriend when she got into the lift (consistent with her evidence that she called him); and the complainant waiting behind the screen-like structure for her boyfriend (consistent with her evidence).
19. What to make of the CCTV evidence was a matter for the jury but on my viewing of it there was nothing in it that ought to have caused the jury to have a doubt about the complainant's credibility; on the contrary. The CCTV footage was strong evidence in the Crown case.
20. On the topic of the CCTV footage of the complainant waiting behind the screen-like structure for her boyfriend, the applicant sought to tender additional CCTV footage showing the complainant leaving the hotel from a different angle. It was played at the hearing of the appeal. This footage had been served on the applicant eight days prior to the appeal hearing. The court provisionally admitted this evidence and deferred a decision as to its admissibility.
21. This additional footage was said to contradict the complainant's evidence that when she was waiting for her boyfriend to collect her, she hid behind a screen. This was said to be because the footage shows that the sign was transparent and, thus, she was not really hiding at all. It was also submitted that the footage shows that she may have spoken to a concierge or other person and the defence may have been able to make further inquiries had this been served earlier.
22. I am satisfied that the screen shown in this CCTV footage is consistent with the complainant's evidence that she waited there because she was obscured from view. It does not advance the applicant's case under this ground.
23. In relation to the telephone records, the applicant accepted that the complainant's message to her boyfriend may have been sent over WeChat, in which case it would not show up on telephone records. The complainant called her friend over WeChat after she called her boyfriend so there is a basis to draw such an inference. As for the rest of the Vodafone records, they do not undermine the complainant's credibility. As the Crown submitted, they could have related to the receipt of messages or other data on the phone. I am not satisfied that the telephone records show that the CCTV footage is inconsistent with the complainant's evidence. In any event, these inconsistencies were all put before the jury.
24. I have already addressed the applicant's complaint that there was no expert evidence about the complainant's level of intoxication under ground 5. Given that intoxication was not left to the jury as a basis for lack of consent it could not provide a reason why the jury ought to have had a doubt as to the applicant's guilt. Similarly, the complaint as to the lack of expert evidence about the complainant's vomiting does not assist the applicant. It was never suggested to the complainant that she might have vomited for a reason other than intoxication. There was no need for an analysis of the vomit to have been undertaken before the Crown could rely on it as probative of excessive alcohol consumption.
25. The applicant also relied upon the evidence of the paramedic, Ms Milne, that the complainant scored well on the Glasgow Coma scale, but this was explained by that witness who observed the complainant to be nonetheless displaying signs of intoxication. The paramedic's personal assessment of the complainant was that she had an "altered conscious state", which was consistent with the Crown case that ultimately went to the jury.
26. It is to be accepted that Ms Milne's evidence was somewhat unclear as to whether the complainant said on the night of the incident that the applicant offered to "take her back to her hotel or a hotel" but it was no part of the Crown case that the complainant was staying or living in a hotel. On this issue, the applicant sought to rely on new evidence (the police "Facts Sheet" and paramedic Milne's witness statement) in support of the submission that the complainant lived in a private residence at the time. This was said to be relevant to whether or not the complainant was living in a hotel on the relevant night.
27. This "new" evidence relied upon by the applicant is on a point so peripheral to the central issues at trial as to not assist. In any event, it was a point made by defence counsel in his closing. It was not a matter which would compel the jury to have a doubt about her credibility either alone or in connection with the other matters raised by the applicant.
28. The above matters were nearly all raised at trial. The jury had the opportunity to consider them.
29. As for the defence witnesses, there are obvious explanations as to why their evidence might not have been accepted by the jury. The evidence of Mr Cao was that he was able to recount with precision exactly how much the complainant had to drink but could not give any evidence as to what his friend Candice had to drink. There was a photo tendered at trial to suggest that Candice was intoxicated and fell asleep on a couch during the party. This does seem consistent with the complainant's account that the women were being encouraged to drink at the dinner party.
30. Mr Xia's evidence was that he did not know the applicant and only met him in September 2017 by coincidence. His evidence was that he recognised the applicant because he was active in the WeChat group. They started chatting and Mr Xia said to the applicant "so you are the unlucky guy. You were charged for… rape." The jury may well have though this was an unbelievable coincidence given his previous offer of money to the complainant to change her evidence.
31. In undertaking my assessment of all of the evidence at trial, as required under this ground, I have made allowance for the advantage enjoyed by the jury in "seeing and hearing the evidence": M v The Queen at 494-495. It is to be accepted that the scope of the advantage that the tribunal of fact, in this case a jury, has over an intermediate appellate court "by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial": Dansie v The Queen at [17]. In this case, given that the central issues at trial turned on questions of credit, the advantage enjoyed by the jury in "seeing and hearing" the complainant give evidence was relatively wide: SC v R [2023] NSWCCA 60 at [14].
32. Having considered all of the evidence at trial, I am not satisfied that there is a "significant possibility that an innocent person has been convicted": M v The Queen at 494-495. In fact, I consider the Crown case to have been a relatively strong one.
33. I would not uphold ground 7.

ORDERS

1. I would propose the following orders: 1. Grant an extension of time. 2. Appeal dismissed.

Amendments 24 April 2023 - Paragraph [196] has been replaced in its entirety. 15 May 2023 - Headnote - "Judge Noman SC" instead of "Judge Norman SC" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 May 2023