Xu v R

1. [1]

   GARLING J: I agree with the orders proposed by N Adams J and with her Honour’s reasons. I also agree with the additional reasons of Hamill J with respect to Ground 6 of the grounds of appeal.

2. [2]

   I have no doubt that the convictions were soundly based on the evidence adduced at the trial. Having regard to that evidence, and making proper allowance for the advantage which the jury had in seeing and hearing the complainant and other witnesses give evidence, I am wholly unpersuaded that the convictions were unreasonable.

3. [3]

   HAMILL J: I enjoy the considerable benefit of having read the draft reasons of N Adams J. I agree with the orders proposed by her Honour although it is tempting either to decline to extend time or to refuse leave to appeal in view of: (i) the lengthy delay in bringing the appeal; (ii) the fact that Mr Xu has served the entirety of his sentence; and (iii) the lack of any significant merit in the grounds of appeal. However, I agree with N Adams J that “in the interest of finality” time should be extended and, where necessary, leave should be granted.

4. [4]

   I have nothing to add to N Adams J’s careful analysis of grounds 1 to 4, all of which concerned the complainant’s state of intoxication. Similarly, I cannot add anything to her Honour’s reasons for rejecting ground 5, which was based on expert evidence that could have been obtained for the trial but was not. Given the evidence and issues at the trial, the probative value of that new evidence is, to put it kindly, limited.

5. [5]

   As to ground 6, I agree with N Adams J’s conclusion that the trial Judge did not fall into error in deciding that, on the information available, the material upon which counsel sought to cross-examine could not substantially affect the jury’s assessment of the complainant’s credibility. It was, however, a matter upon which minds may differ.

6. [6]

   Dr Webb, counsel appearing for the applicant at trial, with great courtesy and propriety, advised the Prosecutor before the trial commenced that he intended to cross-examine the complainant regarding an entry on her academic record which read “Cheat Fail”. The Prosecutor indicated that she objected to the proposed cross-examination and the issue was ventilated before the trial Judge. Dr Webb did not simply confront the complainant in the witness box and wait to see if there was an objection.

7. [7]

   The argument was brief and included the following exchange at the outset:

8. [8]

   The Prosecutor submitted that the evidence was not relevant and, if it was, it was not admissible under the credibility rule in s 102 of the Evidence Act 1995 (NSW) or the exception to that rule in s 103. Section 102 provides that “credibility evidence about a witness is not admissible”. There was no doubt or dispute that the evidence was “credibility evidence” as defined in s 101A. Section 103 provides an exception to the rule in s 102 when evidence is adduced in cross-examination and “could substantially affect the assessment of the credibility of the witness”.

9. [9]

   After the Prosecutor summarised her position, Judge Noman SC addressed further questions to Dr Webb:

10. [10]

    On its face, a finding of “cheating” in an academic setting is a matter that could affect the assessment of a witness’s credibility. It could “substantially” do so depending on the timing and details of the behaviour. The matters referred to in s 103(2) (set out at [207] by N Adams J) are not exhaustive; they do “not limit the matters to which the court may have regard”. I am not persuaded that the passing of around one year between the entry on the academic record (July 2017) and the trial (July 2018) would have, by itself, denied the evidence of its capacity to impact on an assessment of the complainant’s credibility: cf s 103(2)(b).

11. [11]

    The problem for the applicant is that the bare entry of a “cheat fail” on the academic transcript said nothing of the detail of the complainant’s conduct. That entry could have represented something relatively benign (such as the inadvertent failure to attribute a source) or it could have been something bearing substantially upon the complainant’s integrity (such as submitting another student’s work as her own). This lack of detail was what laid behind the trial Judge’s questions of counsel.

12. [12]

    There was no application to examine the complainant on the voir dire to ascertain the detail of the entry.

13. [13]

    The trial Judge decided the issue quickly and provided the following brief explanation:

14. [14]

    The reference to “two years distant” appears to be a (slightly inflated) reference to the time between the incident giving rise to the charges (December 2015) and the recorded “cheat fail” (July 2017). That does not appear to be a reference to “the period” referred to in s 103(2)(b), which concerns “the period that has elapsed since the events to which the evidence relates” [that is, the “cheat fail”] (my emphasis).

15. [15]

    Even so, the Judge’s decision was largely based on the lack of particularity and detail of the matter upon which counsel sought to cross-examine. Counsel acknowledged this, based on the appropriate diffidence with which he pursued the matter. The references in her Honour’s ruling to “the material currently placed before me” and “I’m not inclined” demonstrate that Judge Noman SC concluded that the proposed cross-examination did not meet the exception in s 103(1), because of the dearth of information about the matter that counsel sought to put to the complainant.

16. [16]

    In the circumstances, I agree with N Adams J that ground 6 ought not to be upheld.

17. [17]

    As to ground 7, the assertion that the verdict is unreasonable and unable to be supported having regard to the evidence, I have independently considered the record of the trial.

18. [18]

    On my review of the record, I agree with N Adams J at [217] and [245] that, contrary to the applicant’s submissions, the case against him was “relatively strong”.

19. [19]

    The complainant’s evidence, as recorded in the transcript and considered at this distance, has a ring of truth to it. None of the criticisms made at trial or on the appeal are matters of great substance or matters that shook the credibility of the complainant’s account in any significant way. She made an almost immediate complaint and the CCTV evidence of her entering and leaving the applicant’s hotel room supported her evidence as to her state of intoxication at each of those times. There was also evidence from people at the dinner party that provided support for her evidence that she told them she was not accustomed to drinking alcohol. There was also the evidence of bruising and scratches and the fact that the complainant left her underpants behind, rather than running the risk of waking the applicant from his slumber.

20. [20]

    While there was evidence upon which the applicant could rely – such as some inconsistency in the complaint, the evidence of the defence and character witnesses, and an absence of certain forensic evidence or investigation – the case against him remained a reasonably strong one.

21. [21]

    I refer to the summary of the evidence provided by N Adams J and respectfully adopt her Honour’s reasons for rejecting ground 7.

22. [22]

    I agree that the appeal must be dismissed.

23. [23]

    N ADAMS J: On 9 July 2018, the applicant, Mr Longwei Xu, stood trial before Judge Noman SC and a jury of twelve on seven offences, all arising out of the sexual assault of a young woman on 26 December 2015 in Sydney. In order to protect the anonymity of that woman, I propose to refer to her simply as “the complainant”.

24. [24]

    The indictment charged the applicant with the following offences:

    1. (1)

       Count 1: Assault with act of indecency, contrary to s 61L of the Crimes Act 1900 (NSW) (removing the complainant’s clothing);

    2. (2)

       Count 2: Assault with act of indecency, contrary to s 61L of the Crimes Act (removing the complainant’s bra);

    3. (3)

       Count 3 Attempted sexual intercourse without consent, contrary to s 61I and 61P of the Crimes Act (pinning the complainant down and trying to insert his penis into her vagina);

    4. (4)

       Count 4 Attempted sexual intercourse without consent, contrary to s 61I and 61P of the Crimes Act (rubbing his penis against the complainant’s vagina and trying to insert his penis into her vagina);

    5. (5)

       Count 5 Assault with act of indecency, contrary to s 61L of the Crimes Act (putting the complainant’s hand on his penis);

    6. (6)

       Count 6 Sexual intercourse without consent, contrary to s 61I of the Crimes Act (inserting his fingers into the complainant’s vagina for around one minute or more); and

    7. (7)

       Count 7: Common assault, contrary to s 61 of the Crimes Act (slapping the complainant’s face).

25. [25]

    On 23 July 2018, the jury returned verdicts of guilty on all seven counts.

26. [26]

    On 12 October 2018, the applicant was sentenced to an aggregate term of imprisonment of 4 years with a non parole period of 2 years and 6 months to commence on 23 July 2018 and expire on 22 January 2021.

27. [27]

    The applicant was released to parole on 20 August 2021 and transferred to Villawood Immigration Detention Centre. He was subsequently deported to the People’s Republic of China on 3 October 2021 where he currently resides.

Grounds of appeal

1. [28]

   The applicant seeks leave to appeal against his convictions under s 5(1) of the Criminal Appeal Act 1912 (NSW) on the following seven grounds:

2. [29]

   By way of overview, the Crown case was that on 26 December 2015 the complainant was the guest at a dinner party which the applicant also attended. The complainant was not accustomed to drinking and became dizzy and sick after drinking three glasses of white wine. The applicant offered to take her home but instead took her back to his hotel room at the Shangri-La Hotel which was nearby. The CCTV footage of her walking to the hotel and inside the lift were tendered at trial. When she entered the hotel room, she was feeling unwell and lay on the bed. The applicant got into bed with her and started to undress her. She told him she was “not that type of girl” but he did not stop what he was doing. He undressed her (counts 1 and 2) and attempted to sexually assault her, while she struggled against him. He placed her hand on his penis (count 5) and tried repeatedly but unsuccessfully to insert his penis into her vagina (counts 4 and 5). He inserted his fingers into her vagina (count 6). He then slapped her on the face (count 7).

3. [30]

   The complainant waited for the applicant to fall asleep and crept out of the hotel room in the dark using the torch from her phone. She left her underpants behind as she could not find them in the dark. The CCTV footage depicts her coming out of the room with the torchlight on her phone, consistent with her account. She immediately called her boyfriend and then a friend in Singapore. She was distressed. She told both of them that she had nearly been raped. Her boyfriend picked her up and took her to the police station. A paramedic who attended on the complainant observed her to be intoxicated. There was evidence from the police officer and her boyfriend that she vomited.

4. [31]

   Given the complainant’s account, the Crown case, as it went to the jury, was that the applicant knew that she was not consenting because of her words and actions. Thus, the question of the complainant’s intoxication went largely to her credit and the background to the assault. Despite this, the Crown prosecutor suggested in her opening address that another basis upon which the Crown could prove its case on lack of consent (and knowledge of that fact) was on the basis that the complainant was too intoxicated to be able to give free and voluntary consent and the applicant would have realised that. By the end of the trial, prior to addresses, the Crown prosecutor placed on the record that she would not be closing on that basis and no direction to that effect was sought or given.

5. [32]

   Grounds 1-5 concern how the Crown dealt with the evidence of the complainant’s intoxication at the trial. Ground 6 concerns the trial judge’s refusal to permit defence counsel to cross-examine the complainant on a particular document, and ground 7 contends that the verdicts were unreasonable.

6. [33]

   The applicant requires an extension of time to bring this appeal.

7. [34]

   The reason for the delay is somewhat unclear. The applicant privately funded his trial. He also initially sought to privately fund his appeal but there was some delay in that regard. Although a Notice of Intention to Appeal (“NIA”) was filed on 16 October 2018, so many extensions were sought that on 30 June 2020 the Registrar refused a further extension and the NIA lapsed. A grant of legal aid to obtain an advice on merit was subsequently made on 31 March 2021. As at that date, the applicant was nearing the end of his non parole period and undergoing the Moderate Intensity Sexual Offender Program (“MISOP”). He was unable to complete this course because of his pending conviction appeal (and also due to language difficulties). It was apparently on that basis that a grant of legal aid was approved to brief counsel to provide an advice on merit.

8. [35]

   The applicant’s new solicitor spent some time in 2021 contacting the applicant’s previous solicitor and the District Court requesting all of the relevant papers and liaising with the CCA Registry. The NIA was subsequently extended.

9. [36]

   On 23 September 2021, the applicant’s solicitor, Ms Lau, received Mr Hickie’s advice which included a request to engage an expert forensic pathologist to “clarify” the evidence of intoxication. A further grant of legal aid was made to engage Dr R Byron Collins to provide such a report.

10. [37]

    Dr Collins provided his report on 10 December 2021 and the grounds of appeal were finally filed on 24 January 2022.

11. [38]

    The matter took some time to be listed as the original submissions filed were 118 pages long. Although the Registrar ordered that a shorter version (30 pages) be filed, that order was not complied with, and the appeal proceeded with the lengthy 118 page submissions. On 9 September 2022, the matter was listed for hearing.

12. [39]

    The Crown opposed an extension of time being granted on the basis that there was no merit in the grounds. It was submitted that if the court was satisfied that the trial had miscarried in some way then an extension of time should be granted.

13. [40]

    For reasons provided below, I am not satisfied that any of the grounds should be upheld. Despite this, in the interests of finality, I would extend the time to bring the appeal, grant leave to appeal, and dismiss the appeal.

The evidence at trial

1. [41]

   Given that ground 7 contends that the verdicts are unreasonable, it is necessary to set out the evidence at trial in some detail.

2. [42]

   The complainant was 20 years old in December 2015 and 23 years old by the time she gave evidence in 2018.

3. [43]

   The complainant gave evidence that she was invited to a party on 26 December 2015 by a woman called Coco, who she had met working at an event earlier that month. Coco had previously invited the complainant to two events with Coco’s “rich” friends, which she refused. On this occasion, Coco told her the party was for the birthday of Coco’s younger brother, the applicant. The complainant said she did not mind going with Coco to the party for “her own brother’s birthday” and denied that she attended because the people at the party were very wealthy. Arrangements were made for the applicant to take the complainant to the party, and he collected her in a car with a driver and a woman called Candice was also there. There were about eight other people at the dinner party. Candice was one of the three women there including the complainant.

4. [44]

   The complainant recounted that when they sat at the table to eat dinner, a bottle of white wine was opened and all the males present (except for the owner) encouraged her to drink wine. She said that she told them that she was allergic to alcohol. She said that she tells everyone she is allergic to alcohol, but she drinks it a few times a year. She said she was forced to drink wine even though she did not want to and drank two and a half to three “cups” of wine. She began to feel dizzy, had a headache and felt like vomiting. She said she put her elbow to the table to support her head up and fell asleep for a few seconds. She agreed that, as a result of drinking the wine, she became so affected that she was unable to socialise and talk to people because she felt like she was about to pass out.

5. [45]

   The complainant weighed 52kg and was 170cm tall.

6. [46]

   She said that Candice was also encouraged to drink alcohol, to a lesser extent than the complainant was, and ended up “drunk on the couch”.

7. [47]

   The complainant said that the owner suggested that he would arrange for his driver to take her home however the other males agreed that the applicant would take her home. She said that she was unsteady on her feet and unable to walk on her own, so the applicant assisted her.

8. [48]

   She recounted that she vomited when they got outside and the applicant assisted her to get up and walk, although she did not know where they were going. She said that they arrived at the Shangri-La Hotel after walking for one or two minutes and took the lift to level 13. This is depicted on the CCTV footage where the applicant can be seen with his arm around her waist. The footage also shows the complainant entering the lift and placing her hands on the handrail to support herself, putting her hand over her mouth and bending over, and holding her head.

9. [49]

   She described feeling drunk, dizzy and cold when they entered a room on level 13, so she lay down on the bed under a quilt. She said that the applicant removed his clothes and got under the quilt and cuddled her. He then pinned her down by laying on top of her body, began removing her clothes and forcibly kissed her. She described that she tried to push him off her and told him “[n]o”, but he grabbed both her hands. She told him she “was not that kind of girl” and that she had a boyfriend. She disagreed that the applicant asked her why she had gone back to the hotel room if she did not want to sleep with him.

10. [50]

    The complainant gave evidence that the applicant began “aggressively” or “forcefully” removing her clothing (count 1). When he was unable to open her bra, he pulled the strap, and she heard it tear and the thread came off. He eventually removed her bra by pulling it over her head. Photographs of the black bra were shown to the complainant, and she indicated the damage she was referring to.

11. [51]

    The complainant said that at some point the applicant went to the bathroom and she started to put her bra back on. When he returned, he removed her bra. He was too strong for her to stop him despite her efforts (count 2). She said that she continued to say “[n]o, I don’t want to”.

12. [52]

    The complainant said that the applicant went to the bathroom a second time and then dragged her back to the bed. She recounted that he pinned her hands down, separated her legs, and tried to insert his penis into her vagina (count 3). By this stage, she recalled that he had removed her underwear despite her efforts to prevent this.

13. [53]

    She also gave evidence that when the applicant was lying on top of her, he rubbed his penis against her vagina using his hand. She explained that she covered her vagina with her hands, but the applicant removed her hands, placed his legs between hers and tried to push his penis into her vagina (count 4). She described resisting and struggling to prevent the applicant from penetrating her.

14. [54]

    The complainant also described how at one point the applicant put her hand on his penis and her hand was in contact with his penis for a short time before she was managed to free it (count 5).

15. [55]

    The complainant gave evidence that the applicant then inserted two fingers into her vagina. She tried unsuccessfully to push him away (count 6). His fingers were in her vagina for one minute or more until she was able to move her body away. She recalled that after this the applicant slapped her on the left side of her face and said, “[d]on’t refuse me. You cannot refuse me” and she kept saying “[n]o” (count 7).

16. [56]

    The struggle lasted for about an hour. She said that during this period she slipped off the bed trying to run away, and the applicant picked her up and threw her back to the bed.

17. [57]

    When the applicant fell asleep, the complainant found her phone and used the torchlight to find her clothes (although she could not find her underpants) before sneaking out of the hotel room. The CCTV footage shows her leaving the room quickly with the torchlight on her phone still on. She described calling her boyfriend crying as she left the hotel, telling him she was almost raped and asking him to pick her up. She said that she waited behind a screen outside the hotel as she hoped this would conceal her from the applicant if he came out. She also called her friend Jing Jiang Feng who lived in Singapore and told her that she had nearly been raped. When her boyfriend arrived, he took her to the police station.

18. [58]

    The CCTV footage from the Shangri-La Hotel on 26 December 2015 showed the complainant leaving the hotel holding a phone to her ear. She said she was then able to walk unassisted as it had been an hour since she drank alcohol, and she had a “big shock … that is why I became sober”.

19. [59]

    The complainant’s phone records show that she called her boyfriend, Guan Wang, at 11.04.35pm on 26 December 2015 and Ms Feng at 11.12.45pm.

20. [60]

    The complainant gave evidence that she was left with bruises and scratches, mainly on her legs, thighs and arms. She indicated that the applicant was wearing a Rolex watch, at least initially, which is what scratched her.

21. [61]

    The complainant explained that around two weeks after the incident she heard from other people that her boyfriend was blackmailing the applicant. She said that her boyfriend told her that he contacted a “gangster” to contact the applicant. She recounted that Mr Wang “admitted that he did that... he said he was helping me, but then he said since other people got involved he will no longer help me”. She said that she did not have anything to do with this and denied asking anyone to contact the applicant to pay her money.

22. [62]

    She and her boyfriend broke up in the weeks after the assault.

23. [63]

    She gave evidence that she told her friend Sam [Mr Xia] about the incident in person. She said that when they met about a week after 26 December 2015, Mr Xia suggested that she should write a new statement and that he would get her a new lawyer. She recalled that he said to her, “[w]hy didn’t you get some benefit from [the applicant], such as 50,000”. She stated that she had asked Mr Xia to lend her $2,500 for tuition fees but he transferred $5,000 to her account. He separately transferred $5,000 to a lawyer and sent her a tax invoice showing this. She disagreed that she told Mr Xia she was not able to pay her tuition fees and rent.

24. [64]

    The complainant agreed that within a month after the incident, Mr Xia took her to see a lawyer in the city who had typed out a new statement for her that said she had been willing to do sexual things with the applicant. She refused to sign that statement. She stated that some time later Mr Xia contacted her and offered her $100,000 to change her story when they met in person, which she refused. A couple of months later, she said that Mr Xia contacted her again about seeing another lawyer, who she met with twice, and the lawyer told her to tell the truth about what had happened. She said that after the meeting, Mr Xia told her not to tell the truth. Six months later, the complainant said she deleted Mr Xia’s contact details from her phone.

25. [65]

    Defence counsel put its case to the complainant during cross-examination. In addition to the questions concerning the defence case and the answers that I have already summarised, the questions generally suggested that the complainant was interested in making or soliciting money. Defence counsel suggested that the complainant, although affected by alcohol, was able to converse throughout the night and raised the topic of wealthy people she knew. He suggested that the applicant and complainant were flirting throughout the night and that she suggested going back to his hotel. It was suggested that she tried to get money out of the applicant after the incident, including through Mr Xia. Questions also went to the complainant’s relationship with Coco. The complainant accepted that Coco invited her to attend events with “high status, rich and good looking” people.

26. [66]

    Mr Wang was in a relationship with the complainant at the time. He gave evidence that the complainant called him at around 11pm on the night of the offence and said, “[c]ome here quickly to save me, I was nearly raped by someone”. He picked her up from the Shangri-La Hotel. She told him that a man tried to have sex with her, she refused and resisted, and her clothes were taken off. She could not find her underpants and assumed that they were in the hotel room. Mr Wang gave evidence that he felt that the complainant did not want to tell him what had been done to her physically because he was her boyfriend. He took her to the Day Street Police Station.

27. [67]

    Mr Wang described the complainant as not being that “emotional” at that time but looking haggard, upset and distressed. He said, “[i]t’s just like someone got drunk”. He described how the complainant vomited a lot in the car for one to two minutes.

28. [68]

    Ms Feng was a friend of the complainant. She gave evidence that the complainant called her via WeChat that evening crying. The complainant told her that she had almost been raped by someone from the party and that “the guy just tried to take off her clothes, and she kept refusing… she struggled very strongly and then the guy said, ‘[y]ou’re pretending, and you are no different from those other girls who try to deceive money’… [as said] then he also hit her.” Ms Feng said that the complainant did not give any details about whether sex had occurred during the phone call.

29. [69]

    Lauren Milne, a paramedic employed by the NSW Ambulance Service, spoke to the complainant at the Day Street Police Station at around 12.02am on 27 December 2015. The complainant told her that she had drunk three glasses of white wine and had been feeling sick and vomited. There was some inconsistency in Ms Milne’s evidence about whether the complainant told her that she agreed to go with the applicant back to her hotel room or a hotel room. During examination-in-chief, Ms Milne agreed with the Crown prosecutor’s proposition that the complainant said that the applicant offered to take her “back to her hotel room”. In cross-examination, Ms Milne agreed with defence counsel’s proposition that the applicant offered to take her “back to a hotel room”.

30. [70]

    Ms Milne gave evidence that the complainant told her that when they had started kissing, the male had forced his tongue into her mouth, and she bit his tongue. The male tried to have sex with her, and she said no and told the male that she had a boyfriend. There had been a physical fight between her and the male. When the male fell asleep, she then snuck out of the room.

31. [71]

    Ms Milne said she observed the complainant take a few unsteady steps and felt she needed to stabilise her to stop her falling over. The incident detail report, which Ms Milne said may have been made by the call-taker who allocated Ms Milne the job, said that the complainant was completely alert and responding appropriately. Ms Milne agreed that the complainant’s Glasgow Coma Scale result was 15 out of 15 which indicated that her responses were normal, and that she did not observe evidence of an allergic reaction or anaphylaxis. She also agreed that she had recorded that the complainant had an “altered conscious state” and “vomiting post alcohol consumption”, along with other similar observations, on the consolidated ambulance electronic medical record.

32. [72]

    Amanda Woods, the duty manager at the Shangri-La Hotel on the night, told police at about 1am on 27 December 2015 that the room they were describing to her was room 1319 and the registered guest was Longwei Xu.

33. [73]

    Detective Senior Constable (“DSC”) Luke Lieschke, the officer in charge of the investigation, observed the complainant at the Day Street Police Station on the night. He described her as being scruffy and a little dishevelled with slow speech and movements. He saw her vomit and thought that she might have been intoxicated.

34. [74]

    Sometime later, DSC Lieschke and DSC Beau Egan went to room 1319 at the Shangri-La Hotel and spoke to the applicant, who was placed under arrest and asked to provide identification. DSC Lieschke located a pair of black underpants, the applicant’s mobile phone, and a Rolex watch in the room. The black underpants, dress and bra worn by the complainant, and a blood sample they had taken from her were sent for forensic examination. Tape lifts were taken from the inside crotch area of the black underpants and various areas of the bra, which were later tested for the applicant’s DNA. DSC Lieschke agreed that there was no evidence of the applicant’s DNA in the complainant’s vaginal area and no DNA match on the bra. DSC Lieschke observed that one side of the bra attachment was frayed, and the other side was not. The Rolex watch was not sent for testing.

35. [75]

    DSC Lieschke said he was not aware of the complainant having any injuries and she was not in a state to be photographed, as she appeared intoxicated and in need of medical attention. He also said that no inquiries were made as to whether the complainant had bitten the applicant’s tongue and the applicant did not complain of any injuries.

36. [76]

    Dr Maria Bastas examined the complainant between 3.15am and 4.15am when she presented to the Royal Prince Alfred Hospital (“RPA”) sexual assault service on 27 December 2015. She noted that the complainant said the following: she was encouraged to drink wine at a gathering and had about three glasses; she felt dizzy and was unsteady on her feet; the males at the place were talking about taking her home; a male took her to a hotel next to the house; she felt dizzy and lay on the bed; the male took off his clothes, got into the bed with her and took off her clothes. She noted the following about the details of the offence:

37. [77]

    Dr Bastas recorded in the history that the complainant recalled drinking about three glasses of white wine between 8pm and 9pm and that her last meal was at 9pm. She confirmed that the complainant weighed 52kg.

38. [78]

    Dr Bastas obtained a number of samples from the complainant, including a high and low vaginal swab and smear to detect DNA and sperm, and blood samples.

39. [79]

    Dr Bastas noted several injuries, including scratches and bruises on the complainant’s legs, inner thighs, arms and hands. She gave evidence that it was difficult to determine the cause of the bruises and they may have been accidental, although it was less likely that the scratches on the inner thighs were accidental. She said the bruises were probably three or four days old but could have occurred in the last two weeks, reiterating that it is difficult to age bruises.

40. [80]

    Sandra Trabuio is a senior forensic biologist at the Forensic Biology DNA Laboratory at the Forensic & Analytical Science Service (“FASS”) who examined the samples taken from this case. She gave evidence that whether DNA was likely to be found on the complainant’s bra and underpants depends on how much DNA was transferred, which is contingent on the length of time of contact with the item and whether there was friction. She said that two possible reasons why the applicant’s DNA was not found on the tape lifts taken from the complainant’s underpants were that he either did not touch them or that he touched them and did not deposit enough DNA for detection.

41. [81]

    Ms Trabuio gave evidence that it is difficult to retrieve foreign DNA from the vagina in particular and that no foreign DNA was detected in 70% of cases where digital penetration had occurred. She stated that male DNA was identified in the complainant’s vaginal swabs, however it was too weak to include or exclude anyone from being the contributor.

42. [82]

    The major component of the DNA mixture from the applicant’s hands had the same profile as the complainant.

43. [83]

    The applicant participated in an electronically recorded interview with DSC Lieschke and DSC Egan on 27 January 2015. He said that the complainant drank one or two glasses of wine, and he did not believe her to be intoxicated but during dinner the complainant had said that she was drunk and that “she can’t drink”. He said that once they got to the hotel room, they both took off their own clothes (on his part because he was hot) but the complainant left her underwear and a t-shirt on. He denied kissing her, pushing her legs apart, using fingers to penetrate her vagina and being sexually aroused. He said they had body contact, “like hug together”, and agreed he may have touched the outside of the complainant’s underwear but not the inside.

44. [84]

    As to the complainant’s demeanour, the applicant said that her body language was “not saying mean to me, it’s not saying, fuck off … She was fine”. He initially said that he did not think the complainant had fallen to the floor but later said she had fallen once or twice.

Defence case

1. [85]

   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. [86]

   The defence case was put in this in way in the closing address:

3. [87]

   The applicant did not give evidence at the trial but called a number of witnesses.

4. [88]

   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.

5. [89]

   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.

6. [90]

   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.

7. [91]

   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.

8. [92]

   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”.

9. [93]

   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.

10. [94]

    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”.

11. [95]

    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.

12. [96]

    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”.

GROUNDS OF APPEAL

1. [97]

   Before turning to consider each of the seven grounds of appeal, I would make three introductory observations.

2. [98]

   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. [99]

   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. [100]

   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. [101]

   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]:

6. [102]

   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 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. [103]

   Grounds 1, 2 and 3 were addressed together by the Crown as they all relate to the Crown prosecutor’s opening address.

2. [104]

   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:

3. [105]

   She went on to explain the elements of lack of consent and knowledge of lack of consent in this way:

4. [106]

   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:

5. [107]

   Her Honour responded in this way:

6. [108]

   Defence counsel replied:

7. [109]

   Again, her Honour asked:

8. [110]

   The following exchange then took place:

9. [111]

   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:

10. [112]

    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:

11. [113]

    In refusing the discharge application her Honour stated the following:

12. [114]

    As for the application not to be bound by s 159 of the Criminal Procedure Act, her Honour inquired the following of defence counsel:

13. [115]

    The following exchange then took place:

14. [116]

    After this exchange, the trial judge then conducted the following exchange with the Crown:

15. [117]

    After this exchange, defence counsel added the following:

16. [118]

    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:

17. [119]

    The trial proceeded and by 16 July 2018 the evidence had concluded.

18. [120]

    During submissions about legal directions, the following exchange took place between her Honour and the Crown:

19. [121]

    The following exchange then took place between her Honour and defence counsel:

20. [122]

    Her Honour clarified the direction sought by defence counsel in this way:

21. [123]

    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:

22. [124]

    In her closing address, the Crown put her case on count 6 in this way:

23. [125]

    Defence counsel addressed the issue of intoxication in this way in his closing address:

24. [126]

    Consistent with MFI 16, her Honour’s summing up included the following direction on consent and knowledge of lack of consent:

25. [127]

    Her Honour went on to refer to the evidence and submissions as follows:

26. [128]

    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.

27. [129]

    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.

28. [130]

    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:

29. [131]

    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]:

30. [132]

    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

31. [133]

    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]).

32. [134]

    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.

33. [135]

    It was accepted that significant leeway must be allowed to the trial judge to evaluate these considerations: Crofts v The Queen at [20].

34. [136]

    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.

35. [137]

    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.

36. [138]

    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.

37. [139]

    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.

38. [140]

    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”.

39. [141]

    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).

40. [142]

    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”.

41. [143]

    I will address the Crown submissions in my consideration below.

Consideration: Grounds 1-3

1. [144]

   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. [145]

   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. [146]

   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. (1)

      The Crown opened on the complainant’s anticipated evidence, namely, that she expressed her lack of consent by words and actions;

   2. (2)

      The Crown opening was so lengthy and detailed that it was unlikely that the jury would have remembered all of it;

   3. (3)

      The jury would not have properly understood all of the detail of the legal elements in the opening;

   4. (4)

      The jurors were not taking notes of the opening;

   5. (5)

      It was not suggested that there had been any incorrect statement of law in the opening;

   6. (6)

      The Crown put its case on alternate bases in the opening which may well be narrowed by the conclusion of the evidence;

   7. (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. (8)

      Her Honour was not in a position to discharge the jury as she had not heard the evidence;

   9. (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. (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. (11)

       The impugned statement is a single sentence in a legally dense opening address.

4. [147]

   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. (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. (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. (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. (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. (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. (6)

      The applicant does not make complaint about the directions that the trial judge gave on the elements of the offences; and

   7. (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. [148]

   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. [149]

   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. [150]

   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. [151]

   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. [152]

   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. [153]

    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. [154]

    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. [155]

    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. [156]

    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. [157]

    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. [158]

    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. [159]

    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. [160]

   In her closing address, the Crown prosecutor said this in the context of the complainant’s credibility:

2. [161]

   She went on to address the CCTV evidence of the complainant appearing intoxicated in this way:

3. [162]

   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.

4. [163]

   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.

5. [164]

   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”.

6. [165]

   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”.

7. [166]

   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”.

8. [167]

   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. [168]

   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. [169]

   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. [170]

   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. [171]

   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. [172]

   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. [173]

   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. [174]

   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. [175]

   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. [176]

   For these reasons, I would not uphold ground 4.

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

1. [177]

   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. [178]

   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. [179]

   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. [180]

   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. [181]

   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.

6. [182]

   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.

7. [183]

   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.

8. [184]

   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.

9. [185]

   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.

10. [186]

    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. [187]

   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:

2. [188]

   The principles were re-stated in Xie v The Queen (2021) 386 ALR 371; [2021] NSWCCA 1 at [433]-[434]:

3. [189]

   The principles derived from the above decisions were again re-stated in SC v The Queen [2023] NSWCCA 60.

4. [190]

   I am not satisfied that this evidence is “fresh” evidence. It was always available to be obtained by the applicant exercising due diligence.

5. [191]

   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. [192]

   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. [193]

   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. [194]

   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. [195]

   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. [196]

    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. [197]

    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. [198]

    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. [199]

    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. [200]

    I would not uphold ground 5.

Ground 6: The “cheat fail” on the complainant’s academic transcript

1. [201]

   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. [202]

   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. [203]

   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:

4. [204]

   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.

5. [205]

   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. [206]

   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:

2. [207]

   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. [208]

   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. [209]

   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. [210]

   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.

2. [211]

   The applicant submitted that there are 12 issues of “inconsistencies, discrepancies or other inadequacy” with this conviction, namely:

   1. (1)

      The absence of the applicant’s DNA on the vaginal swabs and smears, the complainant’s bra and underpants;

   2. (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. (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. (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. (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. (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:

   7. (7)

      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;

   8. (8)

      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;

   9. (9)

      The absence of expert evidence about the complainant’s level of intoxication;

   10. (10)

       The absence of independent expert evidence about the complainant’s vomiting;

   11. (11)

       The Glasgow Coma Scale assessment of the complainant’s level of consciousness as 15/15;

   12. (12)

       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.

3. [212]

   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. [213]

   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):

2. [214]

   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):

3. [215]

   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:

4. [216]

   I am not satisfied that the verdicts are unreasonable. I consider the Crown case to have been a relatively strong one.

5. [217]

   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. [218]

   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. [219]

   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. [220]

   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. [221]

   Turning to the specific complaints made by the applicant I respond as follows.

10. [222]

    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. [223]

    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. [224]

    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. [225]

    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. [226]

    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. [227]

    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. [228]

    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. [229]

    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. [230]

    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. [231]

    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. [232]

    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. [233]

    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. [234]

    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. [235]

    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. [236]

    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. [237]

    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. [238]

    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. [239]

    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. [240]

    The above matters were nearly all raised at trial. The jury had the opportunity to consider them.

29. [241]

    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. [242]

    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. [243]

    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. [244]

    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. [245]

    I would not uphold ground 7.

ORDERS

1. [246]

   I would propose the following orders:

   1. (1)

      Grant an extension of time.

   2. (2)

      Appeal dismissed.