Harper v R

1. [1]

   BELL CJ: I have had the advantage of reading and reviewing Button J’s detailed reasons. Having reviewed the record of the trial, I am in agreement with his Honour’s reasons, conclusions and orders.

2. [2]

   BUTTON J:

Introduction

1. [3]

   Luke Solomon Harper (the applicant) stood trial in the District Court of New South Wales in Sydney before Huggett DCJ between 6 August 2020 and 19 August 2020. The trial was on an indictment containing 11 counts averring sexual and other violence against the complainant, an adult woman to whom I shall refer to as necessary as Ms Collins, in accordance with a statutory prohibition on her identification. The offences were alleged to have taken place between 31 May 2019 and 7 July 2019.

2. [4]

   The counts, a very brief statement of their nature, and the verdict returned on each are as follows:

   1. (1)

      Sexual intercourse without consent on 31 May 2019 (penile-vaginal intercourse; verdict of not guilty)

   2. (2)

      Sexual intercourse without consent on 6/7 June 2019 (penile-vaginal intercourse; verdict of guilty)

   3. (3)

      Sexual intercourse without consent on 6/7 June 2019 (penile-anal intercourse; verdict of guilty)

   4. (4)

      Sexual intercourse without consent on 6/7 June 2019 (digital-vaginal penetration; verdict of not guilty)

   5. (5)

      Assault occasioning actual bodily harm on 23 June 2019 (blow to face causing injury; verdict of not guilty, but guilty of alternative of common assault)

   6. (6)

      Intimidation on 23 June 2019 (plea of guilty entered in the presence of the jury panel; no verdict taken from jury)

   7. (7)

      Sexual intercourse without consent on 7 July 2019 (digital-vaginal penetration; verdict of not guilty)

   8. (8)

      Sexual intercourse without consent on 7 July 2019 (penile-anal intercourse; verdict of not guilty)

   9. (9)

      Sexual intercourse without consent on 7 July 2019 (penile-vaginal intercourse; verdict of not guilty)

   10. (10)

       Sexual intercourse without consent on 7 July 2019 (penile-anal intercourse; verdict of not guilty)

   11. (11)

       Sexual intercourse without consent on 7 July 2019 (penile-anal intercourse; verdict of not guilty)

3. [5]

   The fundamental response of the applicant to that indictment was that it could not be proven beyond reasonable doubt that he had ever sexually assaulted the complainant. To the contrary, he gave evidence that, on every occasion when they had sexual intercourse together, she was consenting to it. The final address of defence counsel may be summarised as highlighting the emotional and psychological problems of the complainant, and directing attention to the inconsistencies in her reporting of the particular allegations of sexual intercourse without consent. Defence counsel also noted that the complainant’s attitudes towards the applicant and their relationship shifted after a conceded physical confrontation of 23 June 2019, and that the complainant may have sought to frame earlier incidents in a different and negative light.

4. [6]

   Having said that, as noted above, the applicant pleaded guilty to the count of intimidation in the presence of the jury panel at the commencement of the trial, and no verdict was taken from the jury on that count. He also accepted in his evidence at page 476 line 50 of the trial transcript (TT 476.50) that, on the occasion underpinning count 5, he had pushed the complainant and his hand had come in contact with her face (although he denied that any actual bodily harm was caused to her). As a result, his counsel invited the jury to return a verdict of not guilty on count 5, but guilty of an alternative count of common assault, an invitation that the jury accepted.

5. [7]

   On 30 October 2020, the applicant was sentenced to an aggregate term of imprisonment for 6 years commencing on 30 October 2020 and expiring on 29 October 2026, with a non-parole period of 4 years.

6. [8]

   The indicative sentences provided were as follows:

   1. (1)

      For count 2, imprisonment for 3 years with a non-parole period of 2 years;

   2. (2)

      For count 3, imprisonment for 5 years with a non-parole period of 3 years 4 months;

   3. (3)

      For count 5, imprisonment for a fixed term of 6 months; and

   4. (4)

      For count 6, imprisonment for a fixed term of 9 months.

7. [9]

   The applicant is therefore first eligible for release on parole on 29 October 2024. A diagram setting out all of the above in readily comprehensible form is attached to the bottom of this judgment.

8. [10]

   In support of the application for leave to appeal against conviction, the following three grounds were notified and pressed at the hearing before this Court:

9. [11]

   For the convenience of the reader, I shall refer to ground (2)(b) as either the second ground or “the Edwards complaint”: see Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63. In similar vein, I shall refer to ground (2)(c) as either the third ground or “the Liberato complaint”: see Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66.

10. [12]

    The applicant also sought leave on a single ground of appeal against sentence, albeit one with two aspects:

Sketch of evidence in the trial

1. [13]

   I turn to set out a summary of the evidence in the trial so that all grounds can be understood, in particular ground 1. Of course, I shall approach the evidence in a way that gives full weight to the many acquittals.

2. [14]

   The applicant and the complainant met in January 2019 when the complainant was employed as a driver for a designated driving company.

3. [15]

   Their relationship began online around April 2019, when the applicant sent the complainant a friend request on Facebook, and the two of them started exchanging Facebook and text messages.

4. [16]

   In May 2019, the applicant and the complainant met in person for the first time, to celebrate the complainant’s birthday. On this occasion, they had dinner and drinks, and both became drunk. The complainant went back to the applicant’s house, and they had penile-vaginal and penile-anal sexual intercourse.

5. [17]

   From this occasion onwards, the applicant and the complainant began an intimate relationship. The complainant would often travel to the applicant’s home and stay overnight with him.

6. [18]

   In accordance with the verdicts, the applicant never committed any offence against the complainant before 6 June 2019.

7. [19]

   The central evidence relevant to the appeal concerns the events of 6 and 7 June 2019, because those were the dates upon which the contested conviction counts 2 and 3 were committed. They were said to have been committed on what was called in the trial the “skinny jeans” occasion.

8. [20]

   On 5 June 2019, the complainant visited her general practitioner, Dr Nasr. The complainant gave evidence that she had been having “typical pains I was getting with interactions we'd had with each other. So, not - my area - my pelvis area was tender and my bum area was sore” (TT 69.21-23).

9. [21]

   Her evidence was supported by that of Dr Nasr (TT 211.21-32 and TT216.11-218.12), drawing from the complainant’s medical records, which were tendered as Crown exhibit 9. The note of 5 June 2019 discussed in part:

10. [22]

    In the late evening of 6 June 2019 and early morning of 7 June 2019, the complainant was at the applicant’s house drinking with him and his housemate. Initially, she was not planning on staying over as she needed to get home to look after her dog. However, she stated in her evidence that “…it was really late and I ended up being too tired to drive and probably over the limit technically - not drunk but I wouldn't have been allowed to drive. So I lay down on Luke's bed - no, we ended up deciding I'd stay over just to have a quick nap” (TT 68.14-17).

11. [23]

    At around 4am on 7 June 2019, the applicant helped her pull off the skinny jeans she was wearing. She stated that “we started getting very physical - like, intimate, and he pretty much put his head straightaway into my crotch area” (TT 68.39-40).

12. [24]

    The complainant said to the applicant that she did not want to have sex and told him “I just want to sleep…”. She also gave evidence that the applicant was “pushing” her and “persistent” (TT 69.26-27, 69.30, 78.23-25).

13. [25]

    The applicant then flipped the complainant over on the bed, pushed down on her lower back, and was trying to hold her down in order to have anal intercourse with her. The complainant gave evidence that the applicant “poked me with his penis in my bum, and it – it hurt me so I pushed my hips down towards the bed and squeezed my butt to stop him from entering” (TT 79.28-30).

14. [26]

    The applicant then lubricated his penis by having vaginal intercourse with her for a short time – this being the substance of count 2 – before having anal intercourse with her to ejaculation – this being the subject of count 3. The complainant told the jury that, during the latter intercourse, she was crying, and cried out in pain, telling the applicant “Come on, stop. I’m hurting. You’re hurting me” (TT 80.6-7, 80.20).

15. [27]

    She told the jury that after the applicant ejaculated in her anus she lay on his bed in the foetal position, crying, and that the applicant appeared worried (TT 81.24-46).

16. [28]

    The complainant stated that she fell asleep crying and that after she woke up, she went home. (A further allegation is not recounted at this point because it resulted in the acquittal on count 4.)

17. [29]

    On the afternoon of 7 June 2019, the complainant visited Dr Nasr again. She did not inform him that she had been sexually assaulted within the preceding 24 hours. This visit was to obtain test results conducted on 5 June 2019 regarding possible pregnancy and a urinary tract infection.

18. [30]

    The relevant portions of the notes of Dr Nasr were as follows:

19. [31]

    The following exchange, concerning the complainant’s lack of complaint on the afternoon of 7 June 2019 to her GP about having been sexually assaulted within the preceding 24 hours, occurred during her cross-examination at TT 312.33-46:

20. [32]

    In accordance with the verdicts of not guilty, I approach the evidence on the basis that, after the night on which counts 2 and 3 were committed, the applicant and the complainant continued to have sexual intercourse with consent on a number of occasions.

21. [33]

    As I have said, the applicant pleaded guilty to count 6, which alleged an act of intimidation on 23 June 2019, and admitted that he had committed common assault on the same date for the purposes of count 5.

22. [34]

    The applicant gave evidence in the trial, commencing at TT 454.5. With respect to counts 2 and 3, the applicant agreed in his examination-in-chief that, on an occasion which aligned with the skinny jeans incident, he and the complainant had quickly had penile-vaginal intercourse, then proceeded to anal intercourse, before the complainant said “stop” and “proceeded to cry and scream, like hysterical crying” (TT 466.50-467.1-2).

23. [35]

    The applicant gave evidence that they stopped having intercourse, and that he was asking the complainant what was wrong and whether she was okay. The applicant indicated that she was upset for a substantial period of time – two hours or so – before they both fell asleep. In the morning, the applicant gave evidence that he told her that he could not pursue a relationship with her, and gave evidence that she became very upset in response. (Commencing at TT 467.20 and concluding at TT 468.38).

24. [36]

    The applicant also gave evidence concerning counts 5 and 6.

25. [37]

    As for the former, the applicant gave the following evidence at TT 476.45-477.19:

26. [38]

    As for the latter, the applicant said at TT 474.9-17:

27. [39]

    A central part of this appeal were the text messages tendered as Crown exhibit 4 in the trial, that had been exchanged between the applicant and the complainant on 7 June 2019, within the hours after counts 2 and 3 were said to have occurred. As a matter of simple chronology, they were undoubtedly of great probative value for or against the proposition that the applicant had sexually assaulted the complainant shortly before they were sent and received. It is helpful to set them out in full:

28. [40]

    The applicant and the complainant were both asked many questions about those text messages in examination-in-chief and cross-examination, including what each had meant by text messages sent by themselves, and what each had understood by text messages sent by the other, in particular at the time of their receipt.

29. [41]

    The complainant gave the following evidence during her examination-in-chief at TT 96.48-97.11:

30. [42]

    In cross-examination, the complainant was asked two questions about their communication the following day at TT 308.1-13:

31. [43]

    In examination-in-chief, the applicant told the jury that he believed the complainant’s text messages on 7 June 2019 were in response to him breaking up with her earlier that morning. At TT 470.38-42, the applicant gave the following evidence:

32. [44]

    This purported message, the applicant asking the complainant to never contact him again, was not recovered from the phone of either the applicant or the complainant by police, or by the defence legal team.

33. [45]

    During cross-examination, the applicant firmly defended his account that he had sent a message to the complainant to that effect.

34. [46]

    He however also agreed that the message “You won’t listen to me saying, ‘No, I’m in pain. Don’t. It hurts.’” and “Or me trying to stop you” sounded like an allegation of some sort of assault, probably a sexual assault (TT 514.21-41).

35. [47]

    In the following exchange with the Crown, the applicant repeated his understanding of the messages from the complainant, and his response to them, at TT 507.22-36:

36. [48]

    Separately, as noted above in [43], the applicant gave evidence that he had broken up with the complainant in the early morning of 7 June 2019. In cross-examination, the Crown prosecutor questioned him as to his belief that the text messages sent by the complainant in Crown exhibit 4 were in response to that asserted action of his, at TT 500.30- 502.1:

37. [49]

    In re-examination by defence counsel, the applicant drew back from an understanding at the time of receipt of the messages that he was being accused of sexual assault, giving evidence at TT 557.21-558.29 as follows:

38. [50]

    The Crown called eight other witnesses. Their evidence is not central to the appeal grounds, and accordingly will be summarised very briefly.

39. [51]

    Dr Nasr, the complainant’s general practitioner, gave evidence of her medical history, including her mental health conditions, relevant appointments around the dates of counts 2 and 3 discussed above, and of count 5, and her later disclosures of sexual assault by the complainant (TT 210 – 239).

40. [52]

    Ms Wedervang of the NSW Forensic and Analytical Science Service gave evidence that neither semen nor male DNA was detected by way of the sexual assault investigation kit undertaken 4 ½ days after the last allegation of sexual assault, not described by me above because it resulted in an acquittal (TT 333 – 336).

41. [53]

    The complainant’s employer gave evidence about the complainant calling in sick to work on 7 June 2019, and her complaint of sexual assault a couple of weeks later (TT 338 – 349).

42. [54]

    The complainant’s art therapist gave evidence about Ms Collins’s sessions, and the discussions they had concerning the relationship between the complainant and the applicant (TT 351 – 360).

43. [55]

    Ms Delaney, a women’s health nurse at the Blue Mountains Women’s Health and Resource Centre, gave evidence of the complainant’s visit on 12 July 2019 for a cervical screening test, on which occasion the complainant said that she had been sexually and physically assaulted by the applicant five days earlier; again, none of this is further described by me due to verdicts of not guilty (TT 361 – 365).

44. [56]

    Ms Delaney referred the complainant to Ms Day, a sexual assault investigation nurse, who gave evidence of her medical examination of the complainant on 12 July 2019. Ms Day gave evidence both as to what the complainant had told her regarding her symptoms after the alleged incident on 7 July 2019 and her own observations, namely that all areas of her genitalia were normal (TT 386 – 401).

45. [57]

    Plain Clothes Senior Constable McCarthy gave evidence of having been the complainant’s initial point of contact with the police at Blacktown Police Station. His notes include reference to an alleged sexual assault at 1.00am on 8 July 2019 (counts 7-11, on which the applicant was acquitted, and therefore not further discussed) and a domestic violence assault on 23 June 2019 (count 5). PCSC McCarthy did not take a formal statement, as he knew he was transferring the matter to Chatswood police station, namely the Officer in Charge, Detective Edmunds (TT 404 – 417).

46. [58]

    Detective Edmunds gave evidence that he received carriage of the matter on 12 July 2019. He took a statement from the complainant and downloaded information, including the text messages, from her phone. On 26 August 2019, he arrested the applicant at his house, informing him that the complainant had made an accusation of sexual assault on 8 July 2019, to which the applicant replied “What – what – she can’t be serious. She’s crazy” (TT 418 – 427).

47. [59]

    It was an agreed fact in the trial that the applicant had no convictions for sexual offences (Crown exhibit 23).

Aspects of closing addresses

1. [60]

   Certain aspects of the final address of the Crown prosecutor are relevant to the second and third grounds of appeal against conviction.

2. [61]

   With regard to the second ground, the Edwards complaint, the Crown prosecutor made the following submissions in closing address:

3. [62]

   At TT 581.42-47:

4. [63]

   At TT 582.8-13:

5. [64]

   At TT 583.39-41:

6. [65]

   At TT 588.36-50:

7. [66]

   At TT 589.40-41:

8. [67]

   At TT 590.39-46:

9. [68]

   The Crown prosecutor also made submissions to the jury that related to the third ground, the Liberato complaint, at TT 578.34-35 and TT 579.26-31 respectively:

10. [69]

    When recounting the evidence relied upon in support of count 5, the Crown prosecutor referred to the applicant and the complainant agreeing that force had been applied to the complainant’s head on that occasion. The Crown prosecutor recounted some of the applicant’s examination-in-chief to substantiate the physical and mental elements of assault, to the extent of an intentional or reckless application of force to the complainant’s face (TT 584.3-18).

11. [70]

    I have already summarised the thrust of the final address of defence counsel above at [5], in order to set out the issues in the trial. But because counsel for the applicant in this Court did not rely upon any aspect of the final address of defence counsel at trial in support of any one of the grounds of appeal against conviction, I shall not proceed to discuss it further.

Aspects of summing-up, and discussions preceding its delivery

1. [71]

   For the purposes of the second ground and the third ground, I now set out some parts of the learned trial judge’s exchanges with counsel prior to the summing-up, and those directions that were provided to the jury in the summing-up.

2. [72]

   With regard to the second ground, the trial judge did give the jury a direction in the summing-up at 37-39 regarding the reliance by the Crown upon the failure of the applicant to respond to the complainant’s messages of 7 June 2019 as being inculpatory. And that direction, calling as it did for caution in characterising a lack of response to an allegation as an implied admission, bore some similarities to an Edwards direction. However, the trial judge gave no direction to the jury either restricting, or calling for caution in, the approach of the jury to the submissions made by the Crown prosecutor extracted by me above, commencing at [62]. Nor had any such directions been sought by defence counsel, either after those submissions were made by the Crown prosecutor and before the summing-up commenced, or during it, or at its conclusion.

3. [73]

   Separately, with regard to the third ground, on 17 August 2020 a draft written direction concerning the accused having given evidence was discussed in the absence of the jury. This direction was marked as MFI 8. In order to understand the third ground, it is necessary to set it out in full:

4. [74]

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

5. [75]

   One day later, on 18 August 2020, the following – undoubtedly partial – Liberato direction was given to the jury in the summing-up at 26-27:

6. [76]

   Furthermore, at 44-45 of her Honour’s summing-up to the jury, the following direction was given:

7. [77]

   After those directions were given, defence counsel sought no further Liberato direction, especially with regard to the missing “third leg” thereof, which emphasises the undiminished importance of the onus and standard of proof even if the version given by an accused person is rejected by the jury in its entirety.

Summary of objective and subjective findings made in remarks on sentence

1. [78]

   On 30 October 2020, her Honour delivered remarks on sentence.

2. [79]

   With respect to the complainant’s evidence, her Honour said:

3. [80]

   With respect to the applicant’s evidence, she observed:

4. [81]

   The applicant was described as being someone with a challenging upbringing, despite not having suffered any significantly traumatic or catastrophic events. He was born in New Zealand, fostered as an infant, and adopted shortly afterwards. He had never met his biological mother, and had met but had no relationship with his biological father. He reported being a user of drugs when he was in his late teens to early adulthood. He moved to Australia in his early 20s to start a better life.

5. [82]

   Her Honour noted that the applicant continued to maintain his innocence with respect to counts 2, 3 and 5 (he having seemingly resiled by then from any admission of assault), stating:

6. [83]

   Her Honour also stated:

7. [84]

   Directing herself to a submission made by defence counsel at trial, her Honour said:

8. [85]

   On the matter of the appropriate sentence, her Honour made the following observations:

1. The verdicts of counts 2 and 3 are unreasonable, having regard to the whole of the evidence before the jury.

1. [86]

   In written submissions, the central argument of counsel for the applicant was that there must have been an inherent unreasonableness in the manner in which the jury used the evidence of the complainant at the behest of the Crown. The thesis was advanced by reference to the verdicts of not guilty that were returned on the vast majority of counts. At [90] of the applicant’s written submissions, counsel contended:

2. [87]

   Counsel advanced the argument that the acquittals demonstrate that the jury did not consider the complainant’s evidence reliable or credible without independent corroborating evidence. He contended that the only explanation for the verdicts of guilty on counts 2 and 3 was the controversial “corroborating” evidence constituted by the near-contemporaneous text messages exchanged between the applicant and the complainant, in which the applicant failed to contradict the complainant’s seeming accusations. It was said that the jury must have put this evidence to some improper or erroneous use, either as contemporaneous complaint evidence, or as a result of the asserted failure of the trial judge to give directions in accordance with the Edwards ground.

3. [88]

   Counsel was critical of the cross-examination of the applicant, which assumed that the text messages had the weight and force of contemporaneous accusations of sexual assault. In written submissions, it was argued that consideration of the words and context of the messages provided no such reading, and therefore no such corroboration.

4. [89]

   Counsel did not submit that there needed to be corroborating evidence to support a verdict of guilty. Nor was explicit reliance placed upon asserted inconsistency between the various verdicts of not guilty and guilty. Rather, the submission was that, in this case, reflecting on the verdicts of not guilty on many other counts, the jury must have been requiring something more than the sworn evidence of the complainant.

5. [90]

   Counsel relied heavily upon interrogation of the text messages exchanged between the applicant and the complainant during the day of 7 June 2019, and their interrelation with the complainant’s visit to her general practitioner in the early evening of 7 June 2019 – a visit during which, as I have explained, she did not make a complaint of sexual assault.

6. [91]

   Counsel contended that it was unreasonable for the jury to have been satisfied that the text messages were accusations of sexual assault (thereby supporting her evidence at trial), not only in light of her lack of complaint to her general practitioner in the afternoon of the same day, but also in light of her explanation under oath at TT 312.46 that she “didn’t register what was going on”. Counsel emphasised the importance of timing in this respect – if she had not registered that she herself had been sexually assaulted at the time of the doctor’s appointment, hours later, then she could not have understood or believed at the time of sending the messages that she had been sexually assaulted, hours after the sexual assault, but hours before the medical appointment.

7. [92]

   In written submissions, counsel submitted that resolution of the unreasonable verdicts ground does not depend on any advantage that the jury may have had in witnessing the complainant give evidence – rather, it is reliant on interrogation of the text messages themselves, a reflective task that can be undertaken just as readily by this Court as twelve jurors.

8. [93]

   In oral submissions, counsel emphasised the improper reasoning process that he submitted was demonstrated by the divergent verdicts.

9. [94]

   Counsel again attacked the force of the text messages, and the reliance placed on them by the Crown at trial.

10. [95]

    Counsel relied on the complainant’s evidence that she had not “registered” her lack of consent at the time of the appointment with the doctor to submit not only that one could not be satisfied that the complainant lacked consent at the time of the sexual intercourse, but also that she could not have been aware of such a state of mind on her part at the important evidential time, when she sent the text messages some hours after the sexual intercourse, but before the conversation with the doctor.

11. [96]

    Counsel pointed to the nature of the relationship that was before the jury – one that certainly included injurious but consensual sexual intercourse, and that was, at times, emotionally turbulent – to submit that the text messages sent by the complainant were not inconsistent with an alternative version of events. That was said to be that the applicant had indeed broken up with the complainant on the morning of 7 June 2019. Counsel pointed out the difference between a possible allegation by the complainant that the applicant had done something wrong in some other sense, and a necessarily specific accusation of sexual intercourse without consent.

12. [97]

    Counsel was once again critical of the cross-examination of the applicant, which he said assumed that the text messages had the weight and force of contemporaneous accusations of sexual assault. Again, he emphasised that this was not available on a reading the totality of the evidence.

13. [98]

    Counsel did concede, however, that if this Court were satisfied that it had been open for the text messages to be treated as a contemporaneous complaint of sexual assault, then any submissions concerning the nature of the cross-examination of the applicant on the topic would fall away.

14. [99]

    Counsel accepted that some of the text messages were ambiguous, could have multiple meanings, and indeed could have been referring to some sort of crossing of boundaries, but firmly rejected the submission of the Crown that they were clearly complaints of sexual of assault.

15. [100]

    Despite eschewing an argument based on inconsistent verdicts, counsel submitted that this Court could reflect upon the approach of the jury to the acquittal counts, as part of our own reflection upon the reasonableness of the verdicts of guilty on counts 2 and 3.

16. [101]

    Counsel concluded his oral submissions in support of the first ground of appeal by urging against emphasis and reliance upon the text messages, which he argued could not safely have the meaning for which the Crown contended at trial.

17. [102]

    I would not uphold this ground, for the following reasons.

18. [103]

    In my opinion, counsel for the applicant was correct to eschew reliance upon any argument based upon inconsistency of verdicts. As he conceded, the text messages sent between the complainant and the applicant on 7 June 2019 provided a clear point of rational differentiation from the other counts, upon which the jury were entitled to act: see MacKenzie v The Queen (1996) 190 CLR 348 at 366-367; [1996] HCA 35.

19. [104]

    In contrast, I do not accept the submission of counsel that it is the role of this Court to seek to “parse” the meaning of those differing verdicts, and to sit in judgment on the process of reasoning of the jury that one may infer underpinned them. That is so for at least three reasons.

20. [105]

    First, the verdict of a jury is inherently inscrutable. Secondly, different jurors may adopt different processes of reasoning towards the one verdict, with the result that it is impossible to assign a single process of reasoning in any event. Thirdly, the line of authority of the High Court of Australia commencing with M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and concluding for the time being with Dansie v The Queen [2022] HCA 25 establishes that it is not the role of this Court to analyse the validity of the explicit reasons of the judge in a judge alone trial, or “what the jury must have found” implicitly in a trial by jury.

21. [106]

    Rather, the role of this Court is to make its own assessment of the evidence as to whether its members are satisfied of the guilt of the applicant beyond reasonable doubt, making due allowance not only for the ability of the tribunal of fact at first instance to assess credibility far more readily than an appellate judge reading a transcript, but also for the time-honoured constitutional role of the jury in our criminal justice system.

22. [107]

    In my opinion, reflecting on the text messages sent by the complainant on 7 June 2019, combined with the oral evidence that she gave, it was certainly well open to the Crown prosecutor to submit to the jury, and cross-examine the applicant, to the effect that she was referring to having been sexually assaulted by him hours beforehand. I do not accept that any criticism can be made of the Crown prosecutor in that regard.

23. [108]

    More fundamentally, the compelling inferences to be derived from those text messages is that the complainant was referring to: something that had been done to her; it had been done quite recently; it was seriously wrong; it had been done to her by the applicant; it involved the crossing of a boundary; it was physical in nature; and she responded to it emotionally and physically, including by way of physical pain.

24. [109]

    In combination with her oral evidence, the text messages were powerful, contemporaneous material supporting the proposition that she had been sexually assaulted by the applicant.

25. [110]

    Furthermore, the lack of response by the applicant at first, in particular by way of denial, also plays a role in reflecting upon whether counts 2 and 3 have been proven to the criminal standard.

26. [111]

    His assertion that a text sent by him had inexplicably gone missing is of negligible probative value.

27. [112]

    As well, the assertion of the applicant that he had, in fact, broken up with the complainant that morning, and that was what he believed she was talking about in the messages (extracted above at [39]), is badly damaged by the text sent by him at 13.01 pm, in which he said “I don’t know what I did but okay..”.

28. [113]

    Separately, the other evidence given by the applicant that he believed at the time of their receipt that the text messages were an accusation of sexual wrongdoing on his part, which he well knew to be false on his case, hardly fits comfortably with his subsequent contact, including sexual contact, with his assertedly deceitful accuser. And despite the effort in re-examination by defence counsel to place that understanding on his part at a later point in time, I consider that the thrust overall of his evidence is that that was indeed his interpretation at the time of receipt.

29. [114]

    Turning now to the proposition that the failure to complain to the male doctor on the afternoon of 7 June 2019 is significant, there are a number of answers to that.

30. [115]

    The first is that the complainant gave two separate explanations as to why she did not complain, not one. The first was, to repeat it, that “Dr Nasr is a male and I have to work on that kind of stuff for myself, because there’s a lot of shame with assaults on me” (TT 312.36-37). That explanation does nothing to raise a reasonable doubt; if anything, it operates to the contrary.

31. [116]

    The second was to the effect that she was in such an emotional state that she herself was not entirely sure that afternoon whether she had been subjected to a sexual assault or not. But bearing in mind that consent is defined by statute as “free and voluntary agreement”, with the result that the Crown need only prove the absence of one of those three attributes of the state of mind of the complainant; that it is a human state of mind that bears many shades of meaning and positions on a spectrum; that a person who has been intoxicated with alcohol or drugs can subsequently pause to reflect when sober on precisely how they would characterise their actions and states of mind; that the text messages provide compelling evidence much closer in time to the sexual activity of what the state of mind of the complainant had been; and, finally, that the jury was in a much better position to assess the effect of the cross-examination of the complainant about her failure to complain to the GP, the second explanation given by the complainant, whilst not insignificant, does not lead me to experience a reasonable doubt either.

32. [117]

    Notably with regard to this ground, when asked whether any alternative rational hypothesis was being put forward at the hearing of the appeal that might explain the text messages (in the sense, of course, of merely raising a reasonable doubt about the convictions) counsel reverted to the possibility that the complainant was referring to the putative breakup. But for the reasons given by me above, I do not regard that as an alternative rational hypothesis, not least because of its inconsistency with the words of the messages themselves.

33. [118]

    Finally, it is certainly true that there was evidence that the complainant suffered from various psychological difficulties; that, at the conclusion of the text messages of 7 June 2019, she perhaps unexpectedly asked the applicant not to “ghost” her; and, as I have said, I approach the acquittals as signifying that, after counts 2 and 3 had been committed, the complainant and applicant had consenting sexual contact. But as this Court has said recently in Nguyen v R [2022] NSWCCA 126, intermediate appellate courts must avoid imposing rigid stereotypical expectations upon complainants in sexual assault matters as to how they should behave. None of those matters, whether seen alone or in combination, cause me to experience a reasonable doubt about counts 2 and 3.

34. [119]

    In short, far from being a weak case, I think that there was a strong case, founded on the text messages, that the applicant had indeed sexually assaulted the complainant on 6/7 June 2019. I do not experience a reasonable doubt about those counts, and I do not consider that the verdicts on counts 2 and 3 are unreasonable or unable to be supported.

35. [120]

    For those reasons, I would not uphold ground 1.

2 (b) the trial judge failed to give an “Edwards” consciousness of guilt direction following the Crown’s submission that the applicant continued the relationship because he knew he had committed sexual assaults against the complainant

1. [121]

   In written submissions, counsel for the applicant asserted that her Honour should have given an Edwards direction with regard to the continuation of the relationship between the applicant and Ms Collins following 7 June 2019. That direction should have been similar to the directions that were given about the lack of response by the applicant to the text messages of the complainant of the same day.

2. [122]

   In oral submissions, counsel drew attention to six examples in the Crown prosecutor’s final address (all of which are extracted by me above at [62]-[67]) that were alleged to encompass consciousness of guilt reasoning, and therefore required an Edwards direction to be given to the jury.

3. [123]

   Counsel conceded that no application for an Edwards direction was made at any stage of the trial after the delivery of the final address of the Crown prosecutor, and that he was consequently called upon to overcome rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rule).

4. [124]

   Nonetheless, counsel relied on the combined effect of the six extracts to submit that the Crown had posited a hypothesis that the applicant acted in a way to avoid upsetting the complainant because he knew he was guilty of sexually assaulting her, but the consequent necessary direction had not been given. The result was said to be that there had been a miscarriage of justice, with regard to which leave should be granted, whatever the strictures of the Rule.

5. [125]

   In oral submissions, the Crown conceded that the second extract provided above on analysis possessed a flavour of consciousness of guilt reasoning. However, it was maintained that an Edwards direction was unwarranted, for two reasons.

6. [126]

   First, it struck neither the experienced trial judge, nor the Crown prosecutor, nor – especially – defence counsel as possessing that attribute.

7. [127]

   Secondly, even if it had, the simple truth is that it would have been forensically disadvantageous for the applicant to have had that brief and confined argument highlighted further in the summing-up, by the giving of a full direction about the correct approach to an argument founded on consciousness of guilt.

8. [128]

   I would not uphold this ground, for the following reasons.

9. [129]

   The Rule is a significant hurdle to its success. It obviously plays an important role in ensuring that trial judges get all possible assistance from both counsel about matters of law in criminal trials. Of course, there will be cases in which leave should be granted to permit an appeal to succeed, when a miscarriage of justice is established. But it sounds a loud note of caution here.

10. [130]

    Separately, in my opinion, all but one of the extracts from the final address of the Crown prosecutor do not manifest consciousness of guilt reasoning. That is because all but one are submissions to the jury about why, for different reasons, they would not come to the view that the version of events of the applicant raised a reasonable doubt about any count.

11. [131]

    To expand on that: consciousness of guilt reasoning is based on the proposition by the Crown that an accused person did something, or perhaps failed to do something, because they appreciated that they were guilty of the offence charged, and wished to keep that guilt hidden: see generally Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; R v Lane [2011] NSWCCA 157; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35. Often the act relied upon is a verbal one, in the sense of telling an alleged lie material to the allegation. On other occasions, the act may consist of hiding something material to the allegation. The categories of acts – and perhaps omissions – are not closed, but the underlying theme must be appreciation of one’s guilt of the offence with which one is charged, and conduct undertaken to conceal it. And as Brennan J (as his Honour then was) remarked in Edwards at 199-201, significant care needs to be taken in avoiding “bootstrapping” or circular reasoning, especially with regard to asserted lies that are maintained by an accused person as their case at trial.

12. [132]

    Here, none of the extracts except the second ask the jury to reason in that way. Although they are arguments as to why the version of events of the applicant would not find favour with the jury, they are not founded upon a submission that the applicant did something because he knew that he was guilty and wished to hide his guilt.

13. [133]

    To expand on that, most of the submissions are to the effect that, if the applicant had been falsely accused of sexual assault, as he claimed, it would have been very risky for him to have continued to have sexual contact with the woman who had made that false complaint. But that is not a submission based upon consciousness of guilt; rather, it is a submission that the behaviour of the applicant in continuing to have intimate contact with the complainant was not consistent with his assertion that he appreciated that a complaint of sexual assault had been made against him, but it was incorrect.

14. [134]

    Separately, some of the latter submissions quoted at [65]-[67] are to the effect that the jury would be troubled by the defence proposition that, soon after an exaggerated allegation having been made against him of physical assault, the applicant was nevertheless content to have sexual intercourse with her. Again, that is an attack on a defence assertion by way of what was submitted to be contrary to normal, self-protective behaviour; it is not a submission based upon an alleged consciousness of guilt.

15. [135]

    None of those submissions are to the effect that the applicant acted or spoke in a certain way because he knew he was guilty and wished to conceal his guilt. They are certainly arguments directed towards ultimate proof of guilt, but they are not arguments founded upon his consciousness of his own guilt as a motivation for his actions or words.

16. [136]

    The exception is the second extract, which appears at [63] above. In that case, as correctly conceded by the Crown on this appeal, the Crown prosecutor at trial was submitting that the applicant continued to have sexual and social contact with the complainant because he knew that he had sexually assaulted her, and he was afraid that, if he ended that contact, she would be upset with him and might go to the authorities. That was indeed reasoning based upon an asserted consciousness of guilt.

17. [137]

    If that had been appreciated by defence counsel at the trial, and if the well-established direction founded upon Edwards had been sought, there can be little doubt that it would have been given. Whether, as the Crown submits in this Court, that was a tactical decision based upon a desire not to emphasise that line of reasoning by the giving of a substantial direction urging caution about it is impossible to determine.

18. [138]

    What is possible to determine, in my opinion, and bearing in mind the Rule, is that the absence of that direction did not constitute a miscarriage of justice. I say that for the following reasons.

19. [139]

    It was merely one of many arguments that was placed before the jury by the Crown prosecutor. It was by no means the fulcrum of the case.

20. [140]

    The verdicts of not guilty on the vast majority of the counts strongly suggest that the absence of the direction – which in truth pertained to the counts subsequent to counts 2 and 3 in any event – did not play a compelling role in the deliberations of the jury. In that sense, the ground could almost be said to be inapposite, in that the conviction counts occurred before the texts said to have given rise to the appreciation on the part of the applicant of a need to hide his guilt.

21. [141]

    Finally and most importantly, the strength of the Crown case on counts 2 and 3, discussed by me in my determination of ground 1, leaves me affirmatively satisfied that the absence of a direction about consciousness of guilt with regard to this short submission of the Crown prosecutor does not constitute a miscarriage of justice.

22. [142]

    For those reasons, I would refuse leave to argue the second ground.

The trial judge failed to give the full “Liberato” direction to the jury.

1. [143]

   Counsel for the applicant acknowledged in written and oral submissions that the trial judge was alive to the attributes of a full Liberato direction, and provided reasons for only giving a partial direction before the commencement of her summing-up to the jury. He also acknowledged that trial counsel for the applicant had been content with the truncated direction given to the jury, and said so explicitly in discussion with the trial judge.

2. [144]

   However, in written submissions, it was contended that the full Liberato direction was required because:

3. [145]

   In oral submissions, counsel submitted that the Rule should not pose a difficulty, despite the discussion that occurred about the topic before the summing-up, in which defence counsel explicitly agreed to the absence of the “third leg” of the Liberato direction from the summing-up. Properly understood, it was said, defence counsel had only expressed contentment with her Honour’s course of action in respect of count 5, the physical assault count, as to which the applicant, in his evidence, had accepted that he had pushed the complainant. This submission was founded on the asserted important differences between MFI 8 – to which defence counsel had explicitly agreed – and what was said on the topic in the summing-up.

4. [146]

   Counsel emphasised that, after the trial judge had “quarantined” the evidence of the applicant regarding count 5 and differentiated it from his evidence regarding the sexual counts, it was incumbent upon her Honour to give the third limb of the Liberato direction with respect to those counts, particularly in circumstances where the Crown was attacking the credibility of the evidence that the applicant had chosen to give in the witness box. To be clear, counsel submitted that the trial judge should have directed the jury that the onus and standard of proof remained undisturbed, even if the jury rejected the entirety of the evidence of the applicant about those counts.

5. [147]

   Counsel submitted that, even if the Court did not accept that submission, the Rule does not necessarily prohibit further interrogation of the matter. The crucial question was whether the failure of the jury to be fully and properly directed – about the fundamental question of the onus of proof when an accused person gives evidence in their own defence – caused a miscarriage of justice.

6. [148]

   In my opinion, this ground can be resolved concisely.

7. [149]

   The starting point is the Rule. In this context, it applies even more powerfully than it does with regard to the second ground. That is because defence counsel unquestionably turned his mind to the draft direction to be found in MFI 8, and explicitly expressed his contentment with it.

8. [150]

   As for the thesis that there is some important distinction between MFI 8 and the directions actually given to the jury, I respectfully cannot see it. Each one, to my reading, speaks first of count 5, makes clear that there is no dispute that there was at least a common assault, moves on to the remainder of the evidence of the applicant, and then gives a limited Liberato direction with regard to the counts alleging sexual offences. It is true that different words and phrases are used, but I perceive no significant alteration from one to the other.

9. [151]

   And in any event, even if there is a difference and I have misunderstood, the Rule applies even so. That is because, after the oral direction was given, no complaint was made by defence counsel.

10. [152]

    And in any event, I do not believe that the ground is meritorious, for the following reasons.

11. [153]

    Certainly, a Liberato direction has an important role to play in ensuring that there is no diminution in the onus and standard of proof whenever an accused person gives a version of events (see Haile v R [2022] NSWCCA 71), whether on oath or in some other way (see De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48). And although it has been most commonly said to be necessary in a case in which the prosecution is founded upon the evidence of a single witness, there would seem to be no reason why it should not extend beyond such cases, bearing in mind that the point of the direction is simply to emphasise that, whenever an accused person provides a version that is placed before the jury, that person is assuming no onus of proof, and the ultimate question always remains whether, on consideration of all of the evidence, the jury is satisfied beyond reasonable doubt of the guilt of the accused.

12. [154]

    Here, as has been shown, the “third leg” of the direction was not given, by agreement. And that was on the basis that it was not being contended by the Crown that all that the applicant had said should be rejected. In other words, there was no practical need for the trial judge to inform the jury that, even if they did reject all that the applicant had said, the question nevertheless remained discharge of the onus and standard of proof by the Crown, for the simple reason that neither party was submitting that all of the evidence of the applicant was to be regarded in that way.

13. [155]

    That is because the applicant had given evidence of the following matters, and, far from submitting that they should be rejected, the Crown embraced them as being correct.

14. [156]

    For the purposes of counts 2 and 3, the complainant and the applicant did indeed have two forms of sexual intercourse on 6/7 June 2019.

15. [157]

    On that occasion, the complainant did indeed become upset.

16. [158]

    On the occasion of the common assault, count 5, the applicant did indeed apply force to the person of the complainant, without her consent, although he asserted that he had been provoked, and denied that he caused her actual bodily harm.

17. [159]

    As for the intimidation, count 6, although it was not left to the determination of the jury, the jury panel certainly were present when the applicant was arraigned on that count, and saw and heard him plead guilty to it. And defence counsel chose to lead from him in the presence of the jury the fact that he was indeed guilty of it, and that he regretted it.

18. [160]

    Of course I am not suggesting that, whenever there is any measure of common ground between the evidence of a single witness in a Crown case and the version of an accused, that means that any part of a Liberato direction need not be given. But here, especially bearing in mind that the applicant was explicitly accepting that he had committed two counts on the indictment (one of them in its alternative form), and the Crown was relying upon that acceptance, it would have bordered on the absurd to posit to the jury what its approach should be if it were to reject all of the evidence of the applicant. At the least, it would have confused the jury with regard to the fundamental matters of the onus and standard of proof, not enlightened them.

19. [161]

    Finally, all that I have said in my rejection of the first ground of appeal informs my satisfaction that this ground of appeal did not give rise to a miscarriage of justice, just as it does with regard to the second ground of appeal.

20. [162]

    For all of those reasons, I would refuse leave to argue the third and final ground of appeal against conviction.

21. [163]

    It follows that I consider the appeal against conviction should not succeed.

3. The primary judge failed to consider alternatives to full-time imprisonment in respect of counts 5 and 6, and that the sentence is otherwise manifestly excessive.

1. [164]

   In written submissions, counsel contended that, if the applicant had been sentenced for counts 5 and 6 alone, the relevant maximum penalties (of 2 years and 5 years) and sentencing statistics maintained by JIRS demonstrate that a term of full-time imprisonment would have been most unlikely to have been imposed. And yet the indicative terms of imprisonment provided for the common assault and the intimidation were at the “extreme upper end” of sentences for those offences committed by persons, like the applicant, who possessed no criminal record.

2. [165]

   It was submitted that her Honour failed to consider whether any sentence other than full-time imprisonment could or should have been imposed for those two offences.

3. [166]

   The aggregate sentence and remarks on sentence were analysed further, as follows. As shown by the extract provided by me above at [85], her Honour stated that the indicative sentences for counts 2 and 3, the two counts of sexual intercourse without consent, could be thought of as notionally concurrent. As my diagram shows, the indicative head sentence for count 3 (the penile/anal intercourse) was imprisonment for 5 years. The aggregate head sentence actually imposed was 6 years. It must follow that her Honour “sentenced” the applicant by way of notional cumulation of 12 months for the two less serious offences under discussion. Not only that, that notional cumulation of 12 months, pertaining to two indicative fixed terms of 6 months and 9 months, must mean that the notional concurrence between the two of them was of 3 months only.

4. [167]

   All of this, it was said, resulted in a manifestly excessive aggregate sentence.

5. [168]

   In the alternative, counsel submitted that the indicative terms for the two less serious offences were unreasonable or plainly unjust, when regard is had to the stated intention of her Honour regarding notional cumulation and concurrence in sentencing.

6. [169]

   In oral submissions, counsel emphasised the above, reiterating the basal inappropriateness of the indicative sentences of imprisonment for the two less serious offences, and the separate argument about inappropriate notional cumulation of the same two indicative sentences.

7. [170]

   In my respectful opinion, this ground can be resolved concisely.

8. [171]

   Speaking generally, caution needs to be adopted in analysing indicative sentences as if they were actually imposed, for the simple reason that they were not, and are therefore not amenable to appeal. Having said that, I accept that they can shed light on the possibility that the aggregate sentence actually imposed is itself erroneous, and that, to a limited degree, one can reflect upon notional cumulation and concurrence of indicative sentences.

9. [172]

   Adopting cautiously that kind of analysis, by the time the applicant struck the complainant to the face on 23 June 2019, thereby committing a common assault, and sent her some very frightening messages on the same date, thereby committing an intimidation, he had already committed two very serious penetrative sexual offences against the same woman, on 6/7 June 2019. So much is established by the verdicts of the jury. In other words, by the time he committed the two lesser offences under consideration, he was not a person of good character; quite the contrary.

10. [173]

    Whilst it is true that the indicative sentences for the two lesser offences would have been, at the least, stern, if imposed upon a person of good character who had committed them, the applicant was not such a person. Accordingly, such a reflection can be put to one side.

11. [174]

    As for the argument based upon notional cumulation, again, at the end of the day, only the aggregate sentence is amenable to appeal. That means that submissions about the putative structure of concurrence and cumulation underlying an aggregate sentence can only be taken so far: see for example, Vaughan v R [2020] NSWCCA 3; Stevenson v R [2022] NSWCCA 133.

12. [175]

    Here, in my respectful opinion, it was lenient for her Honour to say that the sentence to be imposed for an act of penile/anal intercourse without consent featuring ejaculation could encompass the criminality of an entirely separate act of penile/vaginal intercourse without consent, albeit committed on the same occasion. That is because the latter was an entirely separate offence that featured its own measure of bodily invasion, denial of sexual autonomy, the risk of pregnancy, and personal degradation.

13. [176]

    By inviting attention to that aspect of the putative sentence structure that was favourable to the applicant, I simply seek to demonstrate the following proposition, reflecting on the matter as a whole. An aggregate head sentence of imprisonment for 6 years with a non-parole period of 4 years encompassing two grave penetrative sexual offences, one offence based on the application of force to the head, and a final offence based on the infliction of emotional distress, with regard to all of which there was very little remorse and insight, cannot be characterised as manifestly excessive.

Conclusion

1. [177]

   In short, I would not uphold any one of the three grounds of appeal against conviction, nor the single ground of appeal against sentence, on either basis.

2. [178]

   It can be seen that my analysis above leads to various outcomes with regard to leave on various grounds. But in terms of orders I do not consider that that level of differentiation is required, and I would approach the question globally.

   1. (1)

      Leave to appeal against conviction and sentence granted.

   2. (2)

      Appeal against conviction dismissed.

   3. (3)

      Appeal against sentence dismissed.

Proposed orders

1. [179]

   N ADAMS J: I have had the advantage of reading the judgment of Button J in draft. I agree with the orders proposed by Button J for the reasons provided by his Honour.

2. [180]

   As for ground 1, having regard to the whole of the evidence before the jury, I too am not satisfied that the verdicts of guilty on counts 2 and 3 are unreasonable for the reasons provided by his Honour.

3. [181]

   As for ground 2, I am not satisfied that the trial miscarried on either of the two bases relied upon under that ground. Implicit in the applicant’s arguments under this ground is that there was an irregularity in the conduct of the trial: GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037 at [24]. As Beech-Jones CJ at CL (with whom Davies and Wilson JJ agreed) observed in Zhou v R [2021] NSWCCA 278 at [22]:

4. [182]

   As for ground 3, I agree with Button J that the sentence imposed was not unreasonable and plainly unjust for the reasons provided by his Honour. I too would grant leave to appeal against the sentence imposed but dismiss the appeal against sentence.

5. [183]

   Finally, I wish to endorse Button J’s observation at [118] cautioning against the imposition of stereotypical expectations as to how complainants in sexual assault matters should behave.

6. [184]

   This court has repeatedly observed, in the context of a ground of appeal asserting that a guilty verdict(s) in a sexual assault trial is unreasonable, that it is not helpful to invite this court to make any assumptions as to how a victim of sexual assault might behave in given circumstances. As I observed in Xu v R [2019] NSWCCA 178 at [92] in the context of why a male victim of sexual assault returned to the house of his assailant a week later:

7. [185]

   In Rao v R [2019] NSWCCA 290, Gleeson JA observed the following at [98]:

8. [186]

   In Maughan v R [2020] NSWCCA 51, Ierace J (with whom R A Hulme and Adamson JJ agreed) made a similar observation at [99] as follows:

9. [187]

   Adamson J agreed with Ierace J in Maughan v R and observed at [13]:

10. [188]

    R A Hulme J adopted both of these observations in Maughan v R at [2] as follows:

11. [189]

    In Neto v R [2020] NSWCCA 128, Hidden AJ observed the following at [79]:

12. [190]

    I made similar observations in Kassab (a pseudonym) v R [2021] NSWCCA 46 at [257] in the context of sexual offences against a child. In VP v R [2021] NSWCCA 11, McCallum JA (as her Honour the was) observed the following at [103], also in the context of a child victim:

13. [191]

    Button J has referred (above at [118]) to similar comments in Nguyen v R [2022] NSWCCA 126 at [58].

14. [192]

    It seems necessary to observe yet again that the criminal law has moved on from a time when sexual assault trials were overlaid with antiquated stereotypes about how a victim is supposed to behave. The court is not assisted by reliance upon such arguments in a ground contending that a sexual assault conviction is unreasonable. Luke Harper v R - Sentencing Diagram (2707, pdf)