Dadley v R

1. [1]

   BELL P: Mr Andrew Thomas Dadley (the Applicant) was charged on indictment with the following offences:

2. [2]

   The Applicant pleaded not guilty to each of these charges.

3. [3]

   A first trial before Bennett SC DCJ which commenced on 10 February 2020 in the District Court of New South Wales (the first trial) resulted in the discharge of the jury on 24 February 2020 after the jury was unable to reach a unanimous or majority verdict.

4. [4]

   A second trial commenced before Sweeney DCJ (the trial judge) and a jury of 12 in the District Court on 21 July 2020. The Complainant’s evidence from the first trial was admitted in the second trial in accordance with s 306I of the Criminal Procedure Act 1986 (NSW). The remaining witnesses from the first trial gave evidence again in the second trial, including the Applicant. The parties did not re-agitate the previous pre-trial rulings made during the first trial. This was in accordance with s 130A(3) of the Criminal Procedure Act, which relevantly states that:

5. [5]

   In the second trial, the jury found the Applicant not guilty of Count 1, and guilty of Counts 2 and 3.

6. [6]

   On 29 October 2020, the Applicant was sentenced to an aggregate term of imprisonment of 3 years and 3 months, to commence on 29 October 2020 and to expire on 28 January 2024, with a non-parole period of 2 years, to expire on 28 October 2022. The trial judge nominated indicative sentences of 3 years’ imprisonment in respect of Count 2, and 12 months’ imprisonment in respect of Count 3. The Applicant was granted bail following both the verdict and sentence and remains on bail with certain conditions imposed.

7. [7]

   The Applicant seeks to challenge his conviction before this Court. He appeals on three grounds:

8. [8]

   The DNA ground relates to the admission during the first trial of certain DNA evidence over the Applicant’s objection, it being argued that the probative value of the evidence outweighed its prejudicial effect. That evidence and Bennett SC DCJ’s ruling on it are considered at [66]-[73] and [128]-[130] below.

9. [9]

   Fully to understand the significance of that evidence and the other two grounds of appeal, it is necessary to set out in some detail the competing accounts of the Complainant and the Applicant about what transpired between them in the early hours of 9 December 2016 after a work Christmas party. The Applicant and the Complainant were work colleagues, both employed at Fire and Rescue NSW. The Complainant described them as having “a normal, professional relationship”. [1]

10. [10]

    As will be seen, in the critical respects, the two accounts are radically at odds, with the Applicant denying any sexual interaction with the Complainant at all.

11. [11]

    The account of events was also partially informed by the evidence of a fellow worker, Mr Adam Richards (Mr Richards), who was a Recruit Instructor with the NSW Fire and Rescue, [2] and who arrived at the Christmas party between 6-6:30pm, being one of the last to have arrived, with the party commencing a couple of hours before that. [3] As explained below, Mr Richards returned to the Complainant’s apartment after the Christmas party with the Applicant on the night on which the offences were said to have occurred.

12. [12]

    Mr Richards made a note of the relevant events at approximately 8 AM, some 5 or so hours of their alleged occurrence. He emailed this note to himself at 8.25am. He was cross examined by reference to this note but it was not tendered as an Exhibit.

Background

1. [13]

   On 8 December 2016, the Complainant, the Applicant and Mr Richards all attended, together with other work colleagues, a Christmas party at the Graphic Arts Club at Mascot. The Complainant arrived at the Christmas party at about 5pm. The party wound up at about midnight.

2. [14]

   At one stage during the evening, the Complainant informed Mr Richards that he was welcome to stay at her apartment, as both of her children were staying with their father that night at a separate residence. This meant that Mr Richards could drink alcohol and not have to drive to his parents’ house in Ermington after the Christmas party. [4] The Complainant’s apartment was approximately 10 minutes by car from the Graphic Arts Club. This account was supported by the evidence of Mr Richards who indicated that at around 10pm, at which point he had had around 4-5 Canadian Club drinks, the Complainant suggested that he could stay at her place. He said he “didn’t have a problem” with this, so he then had a couple of beers. [5]

3. [15]

   At some later point during the night, the Complainant also invited the Applicant to stay over at her apartment. On the Applicant’s evidence, this was after the party had finished when the trains had stopped running. [6] He had originally planned to get public transport home to the far northern suburbs of Sydney, and it was at this stage when the Complainant extended an invitation to stay over at her place which was not far away.

4. [16]

   The Complainant, the Applicant and Mr Richards caught an Uber together back to the Complainant’s apartment shortly after midnight. [7] The Complainant gave evidence that she poured three gin and tonic drinks when they arrived, [8] and that she and the Applicant drank their drinks, although Mr Richards did not. [9]

5. [17]

   On the return to the Complainant’s apartment, on her evidence, there was a discussion in relation to sleeping arrangements, with Mr Richards volunteering to sleep on the sofa, and the Complainant taking her son’s bedroom and putting the Applicant in the main bedroom, as her “son’s sheets were pretty dirty so I didn’t want anyone else to sleep in there”. [10] Mr Richards’ evidence was that he did not believe that there was any specific discussion about sleeping arrangements, and that he was sitting on the lounge which he inevitably fell asleep on, and so any conversation about arrangements would have taken place between the Complainant and the Applicant. [11]

6. [18]

   Mr Richards indicated that they “all just talked generally” for a while, and that this went for probably 45 minutes. [12] After “chatting and winding down”, everyone went to their respective bedrooms in line with the sleeping arrangements already noted. [13] That was at some time prior to 1.00am.

7. [19]

   It is convenient at this point to refer to the layout of the Complainant’s apartment. A floorplan of the apartment which was in evidence at trial is seen below:

8. [20]

   As can be seen from the floorplan, the door of the apartment opened directly to the living area, beyond which was a small dining area and the kitchen, which all effectively formed part of one open space. There was a sofa in that living area and a TV. This was the sofa on which Mr Richards slept. There were also two bedrooms, a bathroom and a small laundry. The smaller of these bedrooms, shown on the diagram as “Bed 2”, had a single bed in it (Bedroom 2). For reasons which will assume significance, this was a raised bed which had sets of drawers underneath it, no doubt to maximise space in what was a small room. The bed could only be reached by climbing up three essentially vertical steps akin to a ladder which formed part of the bed’s structure. The bed also had a rail on the side which did not abut the wall to prevent anyone in the bed falling from it. This was no doubt because of the bed’s greater than usual height from the ground. One could not, thus, roll off the bed, but would need to descend down the ladder.

9. [21]

   The Complainant’s evidence was that this was the room in which her 11-year-old son ordinarily slept. It was also the room to which she retired when she went to bed in the early hours of 9 December 2016.

10. [22]

    The other bedroom, shown on the diagram as “Bed 1” (Bedroom 1), contained two beds, one single bed and the other described as a loft bed, similar to that in the other bedroom which I have already described. This was the bedroom in which it was common ground that the Applicant was assigned to sleep and to which he retired when all three of the party went to sleep. The Complainant gave evidence that she changed the sheets on the single bed in Bedroom 1 prior to the Applicant going to sleep. [14]

11. [23]

    The significance of the floorplan is that the first alleged sexual assault was said to have occurred in Bedroom 2 and the second alleged sexual assault in Bedroom 1. On the Complainant’s evidence, this sequence involved the Applicant coming into Bedroom 2, having penile-vaginal intercourse with her on the raised bed in that bedroom, and then moving the Complainant from that raised bed and carrying her into Bedroom 1 where further penile-vaginal intercourse was said to have taken place. Although the Complainant gave detailed evidence about what she claimed had happened to her in Bedroom 1 (an account which the jury did not accept to the requisite standard of proof), as shall be seen, her evidence as to how she came to move or be moved from Bedroom 2 to Bedroom 1 was very unclear.

12. [24]

    Returning to the chronological narrative of events, under cross-examination, the Complainant said that, at the time of going to bed, she had consumed a reasonable amount of alcohol but was not “blithering drunk”. [15] She estimated that, during the Christmas party, she had consumed approximately ten to a dozen schooners of beer and two spirits, being a Canadian Club and dry, and a gin and tonic. [16] This was in addition to the gin and tonic which she consumed when she returned to her apartment. She accepted under cross-examination that she had told Dr Bronwyn Gock (Dr Gock) of the Royal Prince Alfred (RPA) Hospital on the evening of 9 December 2016, i.e. the evening after the alleged sexual assaults which were said to have occurred in the early hours of 9 December 2016, that she had drunk “about a dozen schooners”. [17] When questioned in relation to her level of sobriety or intoxication, the Complainant indicated that she “thought [she] was doing pretty well”, and that she had her “wits about [her] as such”, and that she was not “falling over or anything like that”. [18] The scientific evidence led at trial indicated that the Complainant’s blood alcohol concentration at 3.00am (approximately the time when the offences were alleged to have occurred) was estimated to be .26%, that is to say, more than 5 times the legal limit for driving a motor vehicle. [19]

13. [25]

    The Applicant’s evidence was that, during the course of the Christmas party, he had consumed approximately six schooners of beer and three glasses of red wine. [20] As already noted, he also drank a gin and tonic with the Complainant at her apartment on their return after the Christmas party.

14. [26]

    The Applicant sent a text message to his wife at 1.50 AM, saying “Trains not running. Can’t get Uber. Going to crash at [the Complainant’s].” [21] His evidence was that he took his shoes off but otherwise wore his jeans, shirt and socks when going to bed. [22] When asked why he did not take off his pants, he said “Just it was late and I was tired. It wasn’t particularly hot. I didn’t – wasn’t planning on staying out so I didn’t have anything to get changed into, so I just went to bed in what I was wearing”. [23]

15. [27]

    The Complainant’s evidence was that she changed into her pyjamas before going to bed in Bedroom 2, saying that “I don't specifically have the recollection of putting them on and getting changed but I always sleep in pyjamas and I went to the trouble of collecting them so – I mean, that's all I can really say about it, I guess.” [24] Her evidence was that she “passed out straightaway” when she got into bed, almost as soon as her head hit the pillow. [25] Her account in chief as to what then occurred (and which formed the basis of Count 1) was as follows [26] :

16. [28]

    The Applicant denied that sexual intercourse had occurred, or that he even went into Bedroom 2 where the Complainant had retired to go to sleep. His evidence was that he went to sleep in Bedroom 1, dressed in his jeans, shirt and socks, and that he woke in that bedroom to the Complainant shouting at him and hitting him, and he said “What’s wrong? Why are you hitting me?” [27]

17. [29]

    In relation to Count 2, being the second charge of sexual intercourse without consent, the allegation was that after the act of intercourse alleged in Count 1, the Applicant moved the Complainant from the elevated bed in Bedroom 2 to the bed in which he had been sleeping in Bedroom 1, and that he again had penile-vaginal intercourse with the Complainant without her consent, knowing that she was not consenting:

18. [30]

    This was also strenuously denied by the Applicant. As noted above, his case was that he woke in the bed that he had gone to sleep in, with the Complainant shouting at him and hitting him, and that that was the first thing he knew.

19. [31]

    In relation to Count 3, being the charge of indecent assault, the act alleged was that after the act of sexual intercourse the subject of Count 2, the Applicant put saliva on his fingers by licking them and then applied that saliva with his fingers to the outside of the Complainant’s vagina. The Applicant also denied that the act alleged occurred.

20. [32]

    Returning to the Complainant’s account, she indicated that the Applicant had lifted her from the bed in Bedroom 2 by putting his arm behind her shoulders and lifting her forward. [28] The Complainant gave evidence that she did not remember getting down off the bed in the original bedroom, [29] or the transition between the two bedrooms. [30] As noted above, she outlined that the next thing that she remembered was being laid down on the single bed in the other bedroom, and that the Applicant “got back on top of me and started again”, which she clarified as meaning that he “started having sex with me again, and put his penis in my vagina”. [31] She indicated that she had her eyes closed for most of the time, but that she had half opened her eyes to try and see what was happening, and that she saw the Applicant and closed her eyes again. [32]

21. [33]

    The Complainant gave evidence in relation to Counts 2 and 3 and the events that ensued, as follows:

22. [34]

    During cross-examination, the Complainant indicated that she saw one of the occasions where the Applicant put his hand up to his mouth and then wiped his hand on her vagina. [34]

23. [35]

    The Complainant indicated that the Applicant was wearing a shirt during the time of the alleged assaults, but that he did not have any clothes on from the waist down. [35] The Complainant said that the Applicant had said “What are you doing? Why are you hitting me?”, to which she said “Get the fuck out”, grabbed his clothes off the floor and “shoved them to him”, and then “grabbed him by the back of the hair and pretty much frog-marched him to the front door”. [36]

24. [36]

    During her evidence-in-chief, the Complainant gave evidence that she opened the front door, pushed the Applicant out, and closed the door behind him, and then she ran back to the bedroom and started bawling. [37] She indicated that at this point, she was “very alert because I was in complete disbelief and I guess the adrenaline was racing and I felt very alert”. [38]

25. [37]

    During cross-examination, the Complainant indicated that she had not given the Applicant a chance to put his pants on before marching him to the door. [39] She said that she did not believe that the Applicant was wearing pants from the time when she started hitting him in the bedroom to when he was pushed out of the front door. [40]

26. [38]

    At this juncture, it is desirable to refer to Mr Richards’ evidence. As noted earlier in these reasons, Mr Richards had the initiative and good sense, influenced, as he explained, from his forensic training, to make a detailed note of what he had heard, seen and done, very shortly after the events in question. Mr Richards was cross-examined by reference to this note.

27. [39]

    Mr Richards’ evidence was that he went to sleep at some point after 1am or 1.30am, although he was not certain, [41] but that he “was woken by noises”. [42] He was questioned further about the noises that he heard, and gave evidence as follows: [43]

28. [40]

    At this point, it is necessary to set out the Applicant’s account of events: [47]

29. [41]

    The Complainant’s evidence was that after she had kicked the Applicant out, Mr Richards came into the room she was in, but that she did not recall the conversation that she had with him. [48]

30. [42]

    Mr Richards’ evidence as to what occurred after the Applicant had been physically thrown out was as follows: [49]

31. [43]

    Mr Richards gave evidence that when he opened the door, the following conversation occurred: [50]

32. [44]

    The Complainant then said that, shortly after the Applicant left having recovered his phones, she “got it in my head that I was going to find him and flog him”, and so she put her clothes on and went downstairs to look for him. [51] She said that she got about a third of the way up the street when she saw the lights of a vehicle pull up at the top of the street, and assumed that it was the Applicant getting into a taxi or Uber. [52] The evidence was that the Applicant got an Uber at 3.35am.

33. [45]

    Mr Richards then went back to the room that the Complainant was in, and she was getting dressed. He was questioned as to what he saw at this point: [53]

34. [46]

    Mr Richards said that the Complainant had an “angry” and “questioning tone” at this point. [54] He said that she grabbed her keys, and went to the door, and said that he guessed that she was looking for the Applicant. [55] When questioned whether he followed her, Mr Richards gave evidence as follows: [56]

35. [47]

    He gave evidence that when they were back in the apartment, he and the Complainant had a conversation as to what she said had occurred: [57]

36. [48]

    After going back into the apartment, the Complainant contacted her friend, Ms Katrina Merritt (Ms Merritt) at approximately 3.55am. [59] At the time of giving evidence, Ms Merritt had been a police officer with the New South Wales Police Force for 26 years. [60] The Complainant gave evidence that she said something along the lines of “Something’s happened. Can you come over?”, although she did not go into detail over the phone. [61] Ms Merritt came over within an hour, with the Complainant telling her what had happened, [62] although the Complainant could not recall exactly what she told her. [63] In cross-examination, the Complainant maintained that she could not recall exactly what she had said to Ms Merritt. [64]

37. [49]

    Ms Merritt gave evidence that she received a phone call in the early hours of the morning on 9 December 2016 from the Complainant, [65] that the Complainant “was very upset”, and when Ms Merritt asked her what was wrong, the Complainant said ““I - I can’t talk. I - I can’t talk over the phone. Can you come over?” [66] Ms Merritt said that she “never heard [the Complainant] be so upset”, [67] and elaborated that the Complainant was crying and that it was unusual for the Complainant to call her at that hour, so Ms Merritt knew something was wrong. [68]

38. [50]

    Ms Merritt outlined that she drove straight over to the Complainant’s apartment, which would have taken approximately 15 or 20 minutes. [69] She indicated that when she arrived, the Complainant was sitting on the lounge, and when Ms Merritt questioned her as to what had happened, the Complainant stated “[h]e raped me”. [70] Ms Merritt outlined that the Complainant was extremely upset, was crying, had red eyes, and was curled up on the end of the lounge, and that Ms Merritt had known the Complainant for a long time but had never seen her that upset. [71] When Ms Merritt questioned the Complainant who had raped her, she responded with the Applicant’s name, saying “My boss, how could he do this? I respected him. I thought he was my friend”. [72]

39. [51]

    In relation to the alleged sexual assaults, Ms Merritt outlined that the Complainant had told Ms Merritt that after she went to sleep:

40. [52]

    Ms Merritt said that the Complainant had told her that when the Applicant was on top of her and kissing her, the Complainant had indicated that she had been confused at that stage, and was not sure what was happening because she was asleep. [74] Ms Merritt gave evidence that the Complainant told her that she had been carried to the other bedroom, and that she had said that the Applicant was “on top of her and inside her”, and that the Complainant had said that “[h]e was inside my vagina. Oh my God. I hope I’m not pregnant. How could he do this to me? He kept licking his, his fingers because I wasn’t wet enough. I can’t believe he did this really”. [75]

41. [53]

    Ms Merritt gave evidence that the Complainant had told her that the Applicant had “kept sucking his fingers and it was disgusting” and that once the Complainant realised what was happening, she “managed to grab him out of the room and she walked him to the front door and told him to leave”. [76]

42. [54]

    The Complainant gave evidence that she told Ms Merritt that she did not know what to do, with Ms Merritt reassuring the Complainant and calming her down a bit, before going through what the Complainant’s options were, [77] and reassuring her that it was all her decision. [78] The options outlined by Ms Merritt included reporting to the police and getting a Sexual Assault Investigation Kit (SAIK) procedure done. [79] In relation to this kit, Ms Merritt explained to the Complainant that there was a time frame in relation to getting one done, so that if she got that done, she could make any other decisions later. [80] Ms Merritt gave evidence that at the time she was telling the Complainant about her options, “she didn’t appear intoxicated” and that “I didn’t think she seemed drunk when I was speaking to her”. [81] Ms Merritt outlined that she had known the Complainant for 18 years, and that she was quite coherent with what she was saying, she was not slurring her words, she was very specific about what she was saying, and that she did not show the signs of intoxication. [82]

43. [55]

    Mr Richards gave evidence that he left the apartment for approximately 15-20 minutes whilst the Complainant and Ms Merritt talked. Ms Merritt eventually drove Mr Richards back to where his car was parked at Mascot Fire Station, [83] and it was at this point that Mr Richards made his note of what he had heard and seen. [84]

44. [56]

    The Complainant gave evidence that Ms Merritt and Mr Richards left her apartment at around 6am, and that she went to sleep until woken up at approximately 9.30am by a call from Ms Merritt. [85] After she got off the phone with Ms Merritt, she noticed that she had two missed calls from the Applicant’s work phone, [86] which were at 7.36am and 8.58am. [87] She gave evidence that she had phone calls with both Mr Richards and Ms Merritt later on that day, but did not recall what was said during those calls. [88]

45. [57]

    Under cross-examination, Mr Richards accepted that, later that day, he was contacted by the Applicant who said to him “Do you know what happened?” and “I don’t know what happened”. [89] He also accepted that he had recorded in his statement that the Applicant had said to him “I woke up and [the Complainant] was hitting me”. Mr Richards said that what he had recorded the Applicant as saying “[t]was consistent throughout”. [90]

46. [58]

    The Complainant gave evidence that later in the morning, at 11.41am, [91] she received a call from a number that she did not recognise and when she picked up, he said “Hey V”, and she recognised the Applicant’s voice and hung up straight away. [92]

47. [59]

    The Complainant outlined that she messaged her friend, Ms Cara Peresson (Ms Peresson), and asked if she could come over. This text message was sent at approximately 10.30am and stated “Can you please come over”. [93] When Ms Peresson arrived, the Complainant gave evidence that she explained to her what had happened. In cross-examination, the Complainant accepted that she told Ms Peresson that after she had gone to sleep, the next thing she recalled was feeling pressure on her back, like she was being scooped up out of bed, and that she recalled being walked into her bedroom, but that in her mind she felt like she was dreaming. [94]

48. [60]

    Inside the apartment, Ms Peresson observed the Complainant initially sit down on the lounge and then she curled herself up into a ball, putting her knees up to her chest and hugging her knees. [95] When Ms Peresson asked the Complainant what had happened, she responded with “Andrew raped me”, and she then burst into tears as soon as she said the sentence. [96] Ms Peresson gave evidence that the Complainant had told her that she felt like she had put pyjamas on before going to sleep, but that when she had woken up, she did not have the pyjamas on. [97] She told Ms Peresson that she was asleep in the loft bunk, and the next thing that she recalled was feeling pressure under her back, like she was being scooped up out of the bed and then led towards her bedroom, and that she said it felt like a dreamlike state. [98] Ms Peresson gave evidence that the Complainant said that the next thing she remembered was opening her eyes and seeing the Applicant licking his fingers, and she had performed the gesture of licking her left hand. [99] The Complainant told Ms Peresson that “[h]e licked his fingers to lubricate me and then he stuck his dick inside me”. [100]

49. [61]

    Ms Peresson said that the Complainant put her foot up against the Applicant’s chest to push him off and said “What are you doing?”, to which he replied “Why what’s wrong?” Ms Peresson continued to give evidence as follows:

50. [62]

    Ms Peresson offered to call the police station for the Complainant, which she did. [102] Ms Peresson also contacted the RPA Rape Crisis Team. [103] The Complainant indicated that after Ms Peresson contacted the police, two police officers whom the Complainant believed were general duties officers came over and said that they had to establish a crime scene, so they “basically just asked us not to touch anything and they just sat there pretty much”. [104]

51. [63]

    Ms Peresson had an appointment that was coming up at midday, and so another friend, Ms Belinda Wheeler (Ms Wheeler) came over when Ms Peresson left. [105] Ms Wheeler arrived after the police had arrived, [106] at around midday, [107] and Ms Peresson gave evidence that she told Ms Wheeler the story that the Complainant had told her, but not to the same extent or detail. [108] The Complainant outlined that she “explained most of it” to Ms Wheeler, and told her that the Applicant had “had sex with me while I was asleep”. [109]

52. [64]

    Later that day, Ms Wheeler took the Complainant to Mascot Police Station, [110] where the Complainant gave a statement which was taken by Detective Amy Gerrish. [111] Whilst the Complainant was at Mascot Police Station with the Detective, she received a missed call from the Applicant’s personal number, at 3.23pm. [112]

53. [65]

    Later in the evening, the Complainant had a SAIK performed at RPA Hospital. [113] According to the Expert Certificate by Dr Gock at the RPA Sexual Assault Service, the complainant was examined between the hours of 8pm-9.30pm on 9 December 2016, with the examination thus taking place 17-18 hours after the alleged assault. [114]

54. [66]

    Y-Filer DNA is a DNA identification system that targets areas on the Y-chromosome (male specific). [115] Testing using the Y-Filer system employs the same technology as conventional DNA typing, with the difference being that the gender-determining chromosome of the male (the Y chromosome) is targeted in this testing. [116]

55. [67]

    Genital swabs were taken from the Complainant, and the results of the DNA analysis were the subject of two analysis reports by Ms Virginia Friedman (Ms Friedman), dated 28 March 2017 and 24 April 2019, which were extracted as part of Ex L in the trial.

56. [68]

    In relation to the report dated 28 March 2017, the following results were produced:

57. [69]

    In relation to the report dated 24 April 2019, the following results were produced:

58. [70]

    During the first trial, the Applicant had taken objection to Y-filer evidence relating to the Complainant’s underwear and genital swabs, and made an application for exclusion on the basis of either relevance or under s 137 of the Evidence Act 1995 (NSW). [117] A considerable volume of material was placed before Bennett SC DCJ on the voir dire, including expert reports. Various experts were examined and cross-examined.

59. [71]

    With respect to the DNA evidence from the genital swabs, the Applicant had submitted that there was “a significant risk of secondary transference”, [118] and that the probative value of the DNA evidence from the genital swabs was low, for the following reasons:

60. [72]

    In a decision of 12 February 2020, Bennett SC DCJ rejected the application to exclude the evidence in relation to the genital swabs, holding that it had significant probative value. His Honour outlined that he did not:

61. [73]

    As earlier explained, this ruling in effect carried through to the second trial and the Y-filer evidence was tendered and relied upon by the Crown. During the course of the trial, evidence was given by Ms Friedman and Dr Gock who, as explained above, had conducted an examination of the Complainant on the night of 9 December 2016.

Grounds of appeal

1. [74]

   The Applicant relied upon the following grounds of appeal:

2. [75]

   It is convenient to deal with the inconsistent verdict and unreasonable verdict grounds first, reflecting the way in which argument was advanced on appeal.

Inconsistent verdicts

1. [76]

   As has been outlined in a number of cases before the High Court and this Court, the test to be applied in considering a ground of appeal based on alleged factual inconsistency between verdicts is one of logic and reasonableness: see MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35 (MacKenzie); Nguyen v R [2021] NSWCCA 85 at [61] (Nguyen); Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59 at [10] (Keen); Bussey v R [2020] NSWCCA 280 at [58] (Bussey); Kim v R [2020] NSWCCA 288 at [26] (Kim); and Roos v R [2019] NSWCCA 67 at [42] (Roos). As was recently observed in Long (a pseudonym) v R [2021] NSWCCA 212 at [90], one cannot assume that different verdicts are inconsistent merely because a jury returns different verdicts with respect to different counts in respect of the same complainant.

2. [77]

   In order to succeed on this ground, the test as stated by Devlin J in R v Stone (Court of Criminal Appeal (UK), 13 December 1954, unrep), and as approved by the High Court in MacKenzie at 366, is that the Applicant:

3. [78]

   As Gleeson JA (with whom Harrison and Davies JJ agreed) outlined in Roos at [43], if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred, there citing MacKenzie at 367. See also Jafary v R [2018] NSWCCA 243 at [31] (Jafary).

4. [79]

   Gleeson JA in Roos properly noted that it is to be kept in mind that a verdict of “not guilty” does not necessarily imply any “want of confidence” in the complainant, but “may simply reflect the cautious approach to the discharge of a heavy responsibility” (at 61), citing MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (MFA).

5. [80]

   MFA was recently applied by this Court in Gage v R [2021] NSWCCA 222, where Fagan J (at 89) noted that the joint judgment in MFA identified two factors that may cause a jury rationally to return differing verdicts for multiple counts of sexual offending against a single complainant, namely that:

6. [81]

   Similarly, recently in Nguyen at [63], Wilson J (with whom Bathurst CJ and Beech-Jones J agreed) outlined that it is “not universally the case that a not guilty verdict returned against one count points to the jury’s rejection of the complainant as a witness of truth. A jury is entitled to, and should, take a far more careful and nuanced approach than that to assessing the reliability of witness testimony”.

7. [82]

   In Ganiji v R [2019] NSWCCA 208 at [13], Basten JA (with whom Button and Lonergan JJ agreed) said that, in a case where all counts rest on the evidence of a particular witness, a conviction on one count accompanied by acquittal on another does not, absent further analysis, necessarily demonstrate inconsistency. His Honour observed that:

8. [83]

   In Bussey at [61], Harrison J (with whom Hoeben CJ at CL and Bellew J agreed) said that an appellate court should not assume too readily that mixed verdicts are inconsistent, as mixed verdicts arise “from the burden and standard of proof, the requirement of separate verdicts and the role of the jury”. See also Martin v R [2020] NSWCCA 192 at [68].

9. [84]

   In the context of a case involving multiple sexual assaults against a single complainant, in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34] (Markuleski), Spigelman CJ observed that:

10. [85]

    In Jones v The Queen (1997) 191 CLR 439 at 453; [1997] HCA 56, it was observed in the joint judgment that:

11. [86]

    In R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130], Simpson J (as her Honour then was, and with whom McClellan CJ at CL and Latham J agreed) observed that:

12. [87]

    As Payne JA said in Kim at [37], the Court must scrutinise the evidence and make its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment, the Court should properly be conscious of the advantage of a jury over an appellate court in that there would be aspects of the case that would not be reflected adequately in the written record. His Honour referred in this regard to MFA at [23], and ML v R [2015] NSWCCA 27 at [46].

13. [88]

    Questions of fact and degree are involved in every case which may affect the ultimate assessment of the effect upon the credibility of the complainant in the particular case before the Court when the complainant's evidence is not accepted to the criminal standard on some counts: see Markuleski at [36] and [238].

14. [89]

    In my opinion, the verdicts on Counts 2 and 3 were inconsistent in the requisite sense with the Applicant’s acquittal on Count 1. This acquittal was explicable, in my view, only by doubts the jury must have held as to the Complainant’s credibility. There were no other eyewitnesses and, as was submitted by Mr Johnston SC who appeared for the Applicant, the events founding the three complaints were so intertwined, both temporally and contextually, that it is a logical affront to accept the inconsistency between the acquittal and the convictions.

15. [90]

    The Complainant’s account which the jury heard as to what she said happened to her in Bedroom 2 (the scene of Count 1) was very detailed. It has been set out at [27] above. The jury was self-evidently unprepared to accept it to the requisite standard of beyond reasonable doubt, and this was so even though her accounts shortly after the event given to Mr Richards and Ms Merritt involved a degree of corroboration.

16. [91]

    The Complainant’s account of the events comprising Count 1 could not be divorced from her accounts of Counts 2 and 3. On her evidence, the matters constituting the underlying events took place over a short time continuum and really as part of a sequence which involved the Applicant:

17. [92]

    In oral submissions, Mr Johnston emphasised the following sequence of the Complainant’s examination-in-chief to support his contention as to the interconnectedness of Count 1 with Count 2: [120]

18. [93]

    The submission put, which I accept, is that the Complainant tied the first aspect of her account (which translated into Count 1) with the second aspect (which translated into Count 2). The description of Count 2 was built on a foundation of fact that Count 1 occurred.

19. [94]

    Taking into account the non-exhaustive matters identified by Wood CJ at CL in Markuleski at [235], this was not a case where:

20. [95]

    The absence of these matters renders it very difficult to identify a possible or plausible basis for differentiating the verdict of acquittal in respect of Count 1, and the verdicts of guilty in respect of Counts 2 and 3.

21. [96]

    The Crown, as has been noted above, sought to draw a subtle and, on the facts of the present case, ultimately chimerical distinction between the Complainant’s credibility and reliability, submitting that the explanation for any deficiencies in the quality of the Complainant’s evidence affecting her reliability in relation to Count 1 lay in the fact that she was under “the considerable disadvantage of having been asleep at the time of the alleged assault combined with her having consumed a moderate quantity of alcohol”. There are two difficulties with this submission.

22. [97]

    First, the amount of alcohol consumed could not be described as “a moderate quantity”, and if this was a factor which influenced the jury’s assessment of the Complainant’s reliability in respect of Count 1, the close temporal proximity, on her account, of Counts 1 and 2 does not supply a rational explanation for the different verdicts.

23. [98]

    Secondly and perhaps more fundamentally, the submission to the effect that the Complainant was under “the considerable disadvantage of having been asleep at the time of the alleged assault” simply does not accord with the detailed tenor of her evidence in relation to Count 1. There was a real tension between the detail of the Complainant’s account as to what the Applicant was said to have done in Bedroom 2 and other parts of her evidence, relied upon by the Crown, that she was half asleep and thought that she was dreaming.

24. [99]

    The Crown also submitted that the fact that the Complainant’s underpants were found in Bedroom 1 rather than Bedroom 2 “to the extent that the inference that they were removed in Bedroom 1 may suggest intercourse commenced there” provided a rational foundation for the guilty verdict in respect of Counts 2 and 3, even though no guilty verdict was returned in relation to Count 1. I am unable to agree.

25. [100]

    The location of the Complainant’s underpants in Bedroom 1 was inconsistent with her overall account and it was not in dispute that the Complainant was naked when she evicted the Applicant. No part of her account in relation to Count 2 involved the Applicant having removed her underwear in Bedroom 1. Moreover, the Complainant’s evidence was that when she followed the Applicant on to the street after he had returned to collect his mobile phones, she got dressed and then returned to Bedroom 1 where, later that morning, after Ms Merritt and Mr Richards left, she went back to sleep. At what point the underpants that were found in Bedroom 1 were removed, and whether or not by the Complainant herself after she returned to the apartment having left it dressed to chase the Applicant, was not explored in the evidence.

26. [101]

    The fact that the Complainant’s underpants were found in Bedroom 1 (where the Complainant often slept in any event, there being two beds in that Bedroom) does not provide a rational explanation for the difference in verdicts. Nor does the Y-filer DNA evidence provide any basis for differentiating the verdicts in relation to Count 1, on the one hand, and Counts 2 and 3 on the other hand.

27. [102]

    For these reasons, the challenge to the jury’s verdict in respect of Counts 2 and 3 should be upheld.

28. [103]

    In any event, for reasons explained below, even if the verdicts were not inconsistent, they were, in my opinion, unreasonable within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW).

Unreasonable verdicts

1. [104]

   The principles applying to the consideration of an unreasonable verdict ground are well-known and well-rehearsed. In M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63, Mason CJ, Deane, Dawson and Toohey JJ stated that:

2. [105]

   In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the plurality outlined that:

3. [106]

   Further guidance was provided by the High Court in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] with respect to the role of the jury, as follows:

4. [107]

   More recently, in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39], [43]-[45] (Pell), the High Court outlined that:

5. [108]

   Turning from these authorities to a consideration of the reasonableness of the jury’s verdicts in respect of Counts 2 and 3, I have carefully reviewed the entirety of the evidence as the authorities require, mindful of the necessary advantages that a jury possesses in relation to assessing the witnesses giving evidence before it.

6. [109]

   One matter strongly emphasised on behalf of the Applicant was the inconsistency between the Complainant’s account and Mr Richards’ account of the Applicant’s state of dress at the time he was “frog-marched” by the Complainant to her front door. According to the Complainant, the Applicant had no pants on when she became conscious that he was having intercourse with her in Bedroom 1, and she kicked and grabbed him and, on her own account, virtually instantaneously dragged him to the front door and kicked him out of the apartment whilst still without his pants or underpants (see [35] above). On the other hand, Mr Richards’ account was that the Applicant was fully clothed when he observed the Applicant being despatched from the premises. This was no trivial or small inconsistency.

7. [110]

   No question was raised about Mr Richards’ credibility or reliability as a witness and, on any view, he had had considerably less to drink than the Complainant at the Christmas party, and had abstained from a gin and tonic when he returned to the Complainant’s apartment with the Applicant. The Crown’s written submissions suggested that Mr Richards may not have accurately perceived the Applicant’s state of dress, but this was not put to him and his evidence in this regard was unchallenged at trial.

8. [111]

   Mr Richards’ unchallenged evidence in this regard was entirely consistent with the Applicant’s account of events, including that he was and at all times remained fully clothed, including when he was confronted by the Complainant hitting him and screaming at him, and when he was thrown out of the apartment. The tension between Mr Richards’ account of the Applicant’s state of dress and the Complainant’s account should have raised a serious doubt as to the credibility of her account as to what had occurred in Bedroom 2, especially given the very short space of time, on her account, between her kicking him and becoming alert to what was happening to her, and throwing the Applicant from the apartment. That account did not admit of the possibility of the Applicant having put his underpants and jeans back on before being thrown out.

9. [112]

   Mr Johnston submitted that Mr Richards’ evidence in this regard was unchallenged evidence directly inconsistent with the Complainant’s account in a significant respect which required the jury, acting rationally, to have entertained doubt as to the Applicant's guilt. He called in aid the significance placed by the High Court on the unchallenged evidence of Monsignor Portelli in Pell.

10. [113]

    In my view, the important tension in the evidence between that of the Complainant and that of Mr Richards, and the unchallenged nature of the latter should only have compounded the doubt that the jury undoubtedly did have as to a significant component of the Complainant’s account, namely as to what had occurred in Bedroom 2. As has been noted in the previous section of these reasons, the jury was not satisfied beyond reasonable doubt as to what the Complainant said had transpired. It was for this reason that the Applicant was acquitted on Count 1.

11. [114]

    The position was further compounded by the Complainant’s assessed state of intoxication at the time of the alleged assaults (see [24] above) and the implausibility in aspects of her account, including that the Applicant removed the Complainant’s pyjamas and underwear without her knowledge or without waking her; the Applicant inexplicably ceasing sexual activity in Bedroom 2 for the purpose of moving the Complainant to Bedroom 1 and recommencing sexual intercourse without consent there; that the Complainant was not awake whilst this occurred; and the significant practical difficulties of moving the Complainant off the raised bed in Bedroom 2 into Bedroom 1, whilst the Complainant was not awake.

12. [115]

    Together, these matters must, in my view, have caused a doubt in the mind of the jury as to whether or not the Applicant was guilty in respect of Counts 1 and 2. That doubt would, moreover, have been reinforced by the Applicant’s own words and tone at the time of the alleged assaults – “What’s going on? What are you doing? Why are you hitting me?”, and his subsequent questions to Mr Richards “Do you know what’s happening? I just woke up. She was kicking me.” [121]

13. [116]

    It is impossible to escape the conclusion that the fragment of DNA which was detected in the Complainant’s vagina was critical to the jury’s returning of a verdict against the Applicant. But there were a number of difficulties with that evidence.

14. [117]

    One particular difficulty emerged from the following passage of evidence of Ms Friedman in chief during the trial: [122]

15. [118]

    The significance of this passage of evidence and, in particular, the evidence which has been emphasised in italics is that the swabs of the Complainant’s vagina were taken at some time between the hours of 8pm-9.30pm, whereas the alleged assaults occurred at or about 3.00am, that is to say, more than 17-18 hours earlier. This fact, coupled with Ms Friedman’s evidence and the absence of any detection of semen in the Complainant’s vagina, had a twofold significance.

16. [119]

    First, it suggested that, to the extent that the jury reasoned that the fragment of DNA was that of the Applicant, it had survived notwithstanding Ms Friedman’s evidence which was to the effect that it would not have survived for more than 12 hours.

17. [120]

    Secondly, it necessarily increased the likelihood that the DNA had been innocently transferred at some time within the 12 hours preceding the Complainant’s examination. This was what was described as a secondary transfer.

18. [121]

    In this context, it is to be recalled that the Complainant would have picked up traces of the Applicant’s DNA when physically dragging or “frog marching” him out of the apartment shortly after 3.00am. The evidence of the Applicant, the Complainant and Mr Richards was consistent in this regard and, as also noted earlier in these reasons, the Complainant’s actions resulted in the Applicant sustaining significant scratching to his ear and face. The Applicant’s skin cells and thus DNA would therefore likely have been transferred to the Complainant’s hand by this means. The possibility could not be excluded that the Complainant had at some stage subsequently touched her vagina in the course of the 12 hours preceding her medical examination.

19. [122]

    There was also the possibility that the Complainant could have picked up traces of the Applicant’s DNA when she returned naked to the bed in Bedroom 1 and placed herself under the doona, as recounted by Mr Richards, before a little later putting her clothes on to follow the Applicant on to the street.

20. [123]

    In this context, Mr Johnston emphasised that Ms Friedman ultimately accepted that in terms of the male DNA detected, she could not “say whether the DNA is more likely to have originated there through primary or secondary transfer”. [123] Earlier in her evidence, she had said that she could not say how the small trace of male DNA that was detected in the Complainant’s vagina had got there:

21. [124]

    Mr Johnston submitted that the equivocality of this evidence was reinforced by the absence of any evidence of semen being detected in the Complainant’s vagina as a result of the testing that was undertaken on the evening of 9 December 2016. In oral address, he contended that:

22. [125]

    The Applicant relied upon the evidence from the Y-filer results of male DNA other than that of the Applicant being detected on the left hip of the Complainant’s underwear as illustrating the ease of secondary transfer of DNA traces. Thus, Ms Friedman was asked: [125]

23. [126]

    In DPP v Wise [2016] VSCA 173 at [69]-[70], the Victorian Court of Appeal (Warren CJ, Weinberg and Priest JJA) observed:

24. [127]

    Contrary to a submission made by the Crown, the Y-filer DNA evidence was incapable of overcoming the other considerations detailed earlier in these reasons that rendered the jury’s verdict in relation to Counts 2 and 3 unreasonable. Indeed, in view of the evidence of Ms Friedman as to the inability of DNA to survive in the vagina for more than 12 hours and which is set out at [117] above, that evidence was more consistent with a secondary transfer as a result of the Complainant having picked up the Applicant’s DNA in relevantly innocuous circumstances.

Admission of Y-filer evidence

1. [128]

   As has already been noted, the Y-filer evidence was the subject of objection at the first trial before Bennett SC DCJ and the Applicant was effectively bound by this decision by reason of s 130A(3) of the Criminal Procedure Act.

2. [129]

   In view of the conclusions I have reached in relation to inconsistent and unreasonable verdicts, it is strictly not necessary to address this issue, although it must be noted that the key evidence of Ms Friedman to which I have referred at [117], [123] and [125] above was adduced at the second trial and not in the course of the voir dire before Bennett SC DCJ.

3. [130]

   On the evidence before his Honour on the voir dire, I am not satisfied that there was any error in admitting it, although the matter was very finely balanced. Had the evidence referred to above been elicited on the voir dire, I may well have taken a different view.

Conclusion

1. [131]

   It follows from the above that the Applicant should be granted leave to appeal, his appeal allowed, his conviction quashed and sentence set aside.

2. [132]

   WALTON J: After reviewing the evidence, I agree with the orders proposed by Bell P for the reasons given by His Honour.

3. [133]

   BELLEW J: I have had the advantage of reading, in draft, the judgment of Bell P, and I have undertaken my own review of the evidence. I agree with the orders proposed by his Honour, for the reasons his Honour has given.