Zhao v R

1. [1]

   N ADAMS J: The applicant, Shuning Zhao, was tried before his Honour Judge North and a jury between 5 and 11 September 2023 on an indictment which contained the following two counts:

   1. (1)

      That on 14 November 2020 he had sexual intercourse with YG (“the complainant”) without her consent knowing that she was not consenting to the sexual intercourse contrary to s 61I of the Crimes Act 1900 (NSW).

   2. (2)

      That on 19 November 2020 he had sexual intercourse with YG (“the complainant”) without her consent knowing that she was not consenting to the sexual intercourse contrary to s 61I of the Crimes Act.

2. [2]

   On 11 September 2023, the jury returned a verdict of not guilty on the first count and guilty on the second count. He was remanded in custody on that date.

3. [3]

   On 19 September 2023, the applicant filed a Notice of Intention to Appeal against his conviction.

4. [4]

   On 21 November 2023, the applicant was sentenced to a term of imprisonment of 3 years with a non-parole period of 18 months to commence from 11 September 2023, when he entered custody. There is no complaint made as to the sentence imposed.

5. [5]

   On 8 December 2023, the applicant was released on bail by the trial judge pending the hearing of his appeal. He has remained on bail since that time.

6. [6]

   The applicant relies on the following grounds of appeal:

   1. (1)

      Ground 1: The verdict on Count 2 is unreasonable and cannot be supported having regard to the evidence.

   2. (2)

      Ground 2: The acquittal on Count 1 is inconsistent with the conviction on Count 2.

7. [7]

   Neither of the two grounds of appeal involve a question of law alone. This means that the applicant requires leave to bring his conviction appeal: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW): Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220 at [2].

Some preliminary observations about the issues at trial

1. [8]

   At the time of the two alleged offences charged (November 2020) the complainant and the applicant were in a casual sexual relationship. They had been meeting for consensual sexual intercourse since April 2020 with a break from July to early September 2020. The complainant wanted the applicant to commit to being more than just a friend she had sex with; she wanted him to be her boyfriend. She frequently raised this with him, and he invariably responded by telling her, effectively, that he was content with the arrangement the way it was. The complainant was unhappy about this but continued to meet with him for consensual sexual intercourse, nonetheless.

2. [9]

   The complaint made to police on 20 November 2020 was that the applicant sexually assaulted her twice: on 14 November 2020 and again on 19 November 2020. The allegation pertaining to events on 14 November 2020 was that she commenced to have consensual sexual intercourse with the applicant at her apartment but subsequently withdrew her consent during the act of penile-vaginal intercourse and the applicant persisted. The allegation pertaining to events on 19 November 2020 was that she did not consent to the penile vaginal intercourse with the applicant from the outset.

3. [10]

   The trial was of short compass. Four witnesses were called to give evidence for the Crown: YG (the complainant) gave evidence on 5 and 6 September 2023. Zihong Li (the complainant’s flatmate), Chieh-An Liang (the complainant’s friend), and Detective Senior Constable Jay Opie (the officer in charge of the investigation) (DSC Opie) all gave evidence on Wednesday 7 September 2023. No defence case was called. The Crown closing address was delivered on Thursday 7 September and the defence closing address was delivered on 8 September. The summing up was given on Friday 8 September and the jury retired to deliver their verdicts at 2:53pm that day. They returned their verdicts the following Monday, 11 September 2023 at 2:26pm.

4. [11]

   Most of the exhibits tendered during the trial were records of the electronic communications between the applicant and the complainant over a period from about May 2020 until March 2022. Most of the communications were telephone calls, text messages or WeChat messages. Although the complainant provided her telephone to police, the Cellebrite download from that telephone did not, for some reason, download the WeChat messages. By the time this was discovered, the complainant had a new telephone, and police were not able to retrieve them. As a result of this, the Crown was not in possession of the WeChat messages when the complainant gave her evidence in chief. They were first shown to the complainant in cross-examination and tendered then.

5. [12]

   Given the issues raised in this appeal, it is necessary to summarise the complainant’s evidence in some detail. I propose to do so as part of a chronology of events which includes the relevant communications in chronological order as well. During the hearing of the appeal, senior counsel for the applicant sought leave to provide a chronology to the court which he subsequently did. I have included all of the relevant dates and events from that chronology in the summary below.

6. [13]

   The chronology includes a large number of communications sent by the complainant to the applicant both before and after the charged acts. They show that the complainant continued to pursue the applicant sexually after she reported him to police. I wish to make clear from the outset that the forensic significance of some of these messages is not to suggest that the complainant’s account should be rejected because her behaviour was inconsistent with a person who had been sexually assaulted. As the jury was instructed and as I will explain more fully in my consideration, it is unhelpful to draw generalised assumptions about how a victim of a sexual assault will respond. Rather, the significance of the communications in this case is to explain the context in which the allegations were made (at a time when the complainant was unhappy that the applicant would not commit to her), to highlight inconsistencies in her account and to identify occasions in her evidence where she was untruthful when confronted with messages that were contrary to her account.

7. [14]

   Similarly, the complainant was asked numerous questions about how she felt towards the applicant at various times when she was sending him messages. Again, I have included some of these answers in the chronology not because her ongoing attraction to the applicant adversely affected her credibility but because her answers on this topic in cross-examination were inconsistent with her contemporaneous messages.

8. [15]

   The complainant’s first language is Mandarin, as is the applicant’s. The transcript records that for the most part the complainant gave her evidence in chief in English with the assistance of a sworn Mandarin interpreter who she turned to for assistance from time to time. When cross-examination commenced, the complainant ceased giving her evidence in English and commenced to give her answers solely in Mandarin. At one stage of her cross-examination, in the absence of the jury, defence counsel queried why the witness gave her evidence in chief in English but was giving her cross-examination evidence in Mandarin.

9. [16]

   It was agreed that the trial judge did not have power to require the complainant to give her evidence in English. Instead, the trial judge suggested to her that she would be “out of the witness box much quicker” if she could handle the questions in English and only turn to the interpreter when she needed her. The complainant indicated (through the interpreter) that “today is the most stressful: so she would like to use the interpreter”. The trial judge confirmed that he was not stopping her from using the interpreter but rather suggesting that if she could answer straight away without the interpreter that she do so. She indicated that she understood.

10. [17]

    In the presence of the jury defence counsel raised this issue with the complainant who agreed that she could answer in English but felt that if she gave the answers in Mandarin, she could express herself “more fully and accurately”. Thereafter, she gave her evidence both in English and through the interpreter.

11. [18]

    The Crown made submissions at the hearing of this appeal about the relevance of the complainant’s evidence being given in English in cross-examination which I will address in my consideration below.

12. [19]

    Similarly, the messages sent by the complainant to the applicant which were tendered at the trial were sent in Mandarin and translated as well. These translated documents contained explanations for various translations, some of which I have included in the chronology. These translations were before the jury in evidence as part of the translated transcripts. In addition, on occasions throughout the trial, the sworn interpreter explained matters relevant to the translations as well.

13. [20]

    The complainant was born in China and emigrated to Australia in 2014 to study in Queensland. In 2019, she relocated to Sydney. She initially resided in Burwood then moved to Zetland in mid-2020. She resided at the Zetland property with two housemates, one of whom was Zihong Li.

14. [21]

    The complainant and the applicant met in early 2020 on the online dating application “IDo”. They exchanged WeChat profiles. They commenced messaging on WeChat and first met in person in early April 2020 in Burwood.

15. [22]

    After their initial contact, they saw each other “a couple of” days a week from April until early June. They would “hang out” at the applicant’s friend’s place due to COVID-19 restrictions. The complainant gave evidence that, “[w]e had a good time”, there were probably “some arguments” but she could not remember and overall “we were pretty good”.

16. [23]

    When asked whether she would describe the applicant as a friend or a boyfriend, she replied “friend”. She denied that there was ever a time when she would describe him as a “boyfriend”. Whenever she stayed at his friend’s place, she would stay the night and they would have sexual intercourse. When asked about whether they spoke of the future of their relationship she replied:

17. [24]

    In May to June 2020, the complainant and the applicant planned a holiday to Melbourne together to have “fun” but in the end she went alone as he did not want to go. At 10:23pm on 25 May 2020, the complainant sent the applicant messages including the following (Exhibit 1):

18. [25]

    At 10:09pm on 27 May 2020, the complainant sent the applicant messages including the following (Exhibit 1):

19. [26]

    The translated exhibit which went to the jury included the written explanation about the use of the word “older brother” in this message:

20. [27]

    When asked to describe her relationship at that time she replied:

21. [28]

    When asked whether she liked the applicant she replied:

22. [29]

    When the complainant returned from Melbourne she continued to see the applicant, but they stopped seeing each other in July 2020. She explained why in these terms:

23. [30]

    Sometime in either August or September 2020, the applicant and the complainant ran into each other at the gym and later had consensual sexual intercourse.

24. [31]

    On 5 September 2020, the applicant and the complainant went to a hotel and had consensual sexual intercourse.

25. [32]

    On 12 September 2020, the applicant and the complainant went to a hotel and had consensual sexual intercourse. The complainant took a naked photograph of the applicant at this time. This upset him and he told her to delete it. She did not do so.

26. [33]

    When asked how she would describe the relationship during this period the complainant replied, “[t]oxic”. She did not go on to explain what she meant by that but in the context of her other evidence, I understand the complainant to mean that she still wanted a more serious relationship with the applicant, but he did not want that.

Count 1 - 14 November 2020

1. [34]

   On 14 November 2020, the complainant invited the applicant to her home in Zetland. By that stage, they were mainly communicating by WeChat.

2. [35]

   When the applicant arrived, they both sat on the couch. Her housemates were also home but stayed in their rooms. The complainant gave evidence that the applicant became “very horny” and touched her body, undid her bra strap, touched her breasts and kissed her. She gave evidence that she was surprised by the applicant’s conduct, particularly the undoing of the bra strap, and asked him: “Why did you do that?” She did not explain why she was surprised by this. The complainant consented to the applicant touching her.

3. [36]

   On the complainant’s request, the two moved to her bedroom. She explained in examination in chief that “because he undid my bra and started touching me, I think I was being horny as well after he did that to me.” She later gave evidence that she intended to have sexual intercourse with the applicant.

4. [37]

   In cross-examination, the complainant gave evidence both that she was still pursuing a romantic relationship with the applicant as at 14 November when she invited him around and also that she was not. She also both denied being sexually interested in him on 14 November when he came to her house but agreed that she wanted to have sexual intercourse with him when he touched her on the couch.

5. [38]

   The applicant and the complainant commenced consensual sexual intercourse. After 15 to 20 minutes the complainant became uncomfortable and felt pain in her vagina. Her evidence was that she said, “[n]o” and “I don’t want it” in Mandarin and started crying. She stated that she tried to move her hips and pushed at the applicant’s belly. The applicant did not respond. When asked whether she wanted to stop having intercourse because she started feeling pain, she replied:

6. [39]

   About five minutes later, the applicant stopped and retrieved a condom from his pocket. The complainant’s evidence was that she did not say anything to the applicant but continued crying. The applicant “went off the bed”, put the condom on and then came back to the bed. She remained on the bed during that time. He then penetrated the complainant’s vagina with his penis and ejaculated into the condom.

7. [40]

   The complainant’s evidence was that the applicant then got off the bed and removed the condom. She remained on the bed and felt “[e]xhausted and a little bit sad.” She could not remember whether the applicant joined her on the bed but gave evidence that they “relaxed” in the bedroom and she told him about her “feelings”, and that if she continued having sex with him, she would get emotionally attached to him. She did not make any complaint to him at that time that she had been sexually assaulted.

8. [41]

   The applicant and complainant then went for a meal together at a restaurant in the East Village. She gave evidence that she wanted the applicant to “accompany for the lunch afterwards because [she thought she] wanted to spend his money.” When asked whether they talked about what had happened earlier, she replied “not really”. The following answers were then given in examination in chief:

9. [42]

   Although this last answer is somewhat unclear, in addition to being non-responsive to the question being asked (which was whether she told the applicant why she withdrew consent), I understand it to mean that she withdrew consent because she was upset that the applicant did not have the same feelings for her as she had for him.

10. [43]

    The complainant was cross-examined about going out for a meal with the applicant after the alleged assault on 14 November:

11. [44]

    In cross-examination she was also asked these questions about how she felt about the applicant after the first alleged sexual assault on 14 November:

Contact from 14-19 November 2020

1. [45]

   The complainant continued messaging the applicant on WeChat after 14 November 2020. Her evidence in chief was that she still saw him as a friend and wanted to know “why he did this.” She said she was still “partially” romantically interested in him. Although her evidence on this subject changed a number of times in cross-examination, she agreed that between 14 and 19 November she was still trying to persuade the applicant to be her boyfriend. She also agreed she was trying to get his attention (between 14 and 19 November) and wanted him to be attentive to her. When he ignored or did not respond to her messages it was “frustrating”.

2. [46]

   On 16 November, the complainant sent the applicant a large number of messages including the following (Exhibit 3):

3. [47]

   On 17 November 2020, the complainant sent the applicant a photograph of her legs at 10:33am (Exhibit 4). In cross-examination she was asked whether she was trying to “entice or seduce” him when she sent that and she replied, “[c]atch his attention”. She agreed she was trying to “catch his attention” by sending him a “sexually attractive photograph”. This exchange then occurred:

4. [48]

   On 17 November 2020, she also sent the following messages to the applicant (Exhibit 4):

5. [49]

   The complainant sent a picture of two dogs at 7:07pm and then messaged:

6. [50]

   The complainant was asked about these messages in cross-examination as follows:

7. [51]

   On 17 November 2020, the complainant sent the applicant the message:

8. [52]

   The applicant responded, “I’m working.”

9. [53]

   On 18 November 2020, the complainant sent the applicant a number of further messages including the following (Exhibit 5):

Count 2 - 19 November 2020

1. [54]

   On 19 November 2020, the applicant arrived at the complainant’s home. Her evidence in chief was that when the applicant arrived at her unit that day, she was in her bedroom doing work on her laptop. She explained that although there were arrangements to meet each other that day, nothing was planned.

2. [55]

   Contrary to her evidence in chief that she wanted to work that day and there were no firm plans for the applicant to come over, in cross-examination the complainant was shown a number of WeChat messages she had sent to the applicant that morning including these two at 10:25am (Exhibit 6):

3. [56]

   The translated exhibit which went to the jury included the written explanation about the use of the word “cum” in the first of these three messages:

4. [57]

   In cross-examination she was asked about the request to “cum over quickly” She denied she was playing a word game. She denied it was an intentionally sexual message.

5. [58]

   The complainant was asked about the translation of this message in re-examination and gave the following evidence:

6. [59]

   The complainant went on to explain in re-examination that the translation of that was, “[h]oney, could you come to bed early?” and that she wanted the applicant to come over earlier than agreed.

7. [60]

   The complainant was further cross-examined about inviting the applicant over on 19 November 2020 as follows:

8. [61]

   The complainant’s evidence in chief was that when the applicant arrived, they sat down and talked. She described what happened next as follows:

9. [62]

   In cross-examination, she agreed that she became aroused when she was sitting on the chair and the applicant touched her.

10. [63]

    The complainant’s evidence was that they then moved to her bed. Either the applicant removed her clothing, or they both did (she gave evidence of both). They then began to watch television shows on the applicant’s iPad. When asked why she moved from her chair to the bed she replied that she wanted to “nap” and “relax for a bit” but that the applicant’s intention was “pretty obvious” and “he wanted to have some intimacy with me.”

11. [64]

    The complainant’s evidence was that they were both lying naked on the bed covered by a sheet. She gave this evidence in chief:

12. [65]

    The complainant gave evidence that she did “not really” want to have sex. After 20 minutes of lying naked on the bed, the applicant touched the back of her body and tried to open her legs. Her evidence was that he turned her over, so she was facing him. Despite giving clear evidence that she was laying on her back, she was asked by the Crown whether she was facing him or away from him. She confirmed that she was facing him. The complainant gave evidence that she said “[n]o” more than once and tried to keep her legs closed. The applicant’s penis was erect. The complainant’s evidence was that the applicant pulled the complainant’s legs apart and penetrated her vagina with his penis. The complainant’s evidence was that she was crying, and she said “[n]o” and “I didn’t want to” a number of times in a “normal voice”. The applicant did not say anything. The complainant described being in the middle of the bed with the applicant on top of her. She was asked by the Crown for the third time whether she was laying on her stomach and she again confirmed that she was on her back, and he was on top of her:

13. [66]

    She was then asked for the fourth time whether the intercourse occurred while she was lying on her back with him on top of her. She confirmed that it did.

14. [67]

    At one stage, the applicant left the bed to retrieve a condom. The complainant stayed on the bed and did not get up. She explained that this was because she was “exhausted” and just wanted to go to sleep. She watched the applicant leave the bed, put a condom on and return. He then penetrated the complainant’s vagina with his penis until he ejaculated.

15. [68]

    The applicant left the bedroom and took a shower. When he returned, he got back into the bed, and they “cuddled” and rested.

16. [69]

    The complainant was asked in cross-examination about why she invited the applicant over on 14 and 19 November and gave these answers:

17. [70]

    The complainant agreed that up until the point of penetration she did not say or do anything to suggest she did not want to have sex with the applicant. The defence case was put to her: that she was not made to do anything she did not want to do, that the applicant did not pull her legs apart without her consent and that she did not say or do anything to resist him. She denied each of these suggestions and repeated that she cried. Her evidence was that she was upset but not angry at the applicant whilst they were cuddling. She accepted that she was angry at the time she reported the incidents to police. It was put to her that she was not upset because the intercourse had been consensual. She gave the following evidence in relation to that:

18. [71]

    The complainant gave evidence in chief that after they cuddled, they went to get bubble tea. After that, she asked the applicant to walk her home and he agreed. In the lobby of her apartment building, the two spoke for about an hour about why they were having sex and the complainant’s feelings and her desire for a relationship with the applicant. Her evidence was that they did not discuss the “incident”. The defence case as to the true nature of her complaint regarding the applicant’s conduct was put to her as follows:

19. [72]

    She was further asked about this long discussion as follows:

20. [73]

    After the applicant went home the complainant sent him some messages on “WeChat” at 8:55pm which included this one (MFI 2):

21. [74]

    The complainant gave evidence that she was flirting with him in this and other messages and was still partially romantically interested in him. The complainant explained in cross-examination that this message meant, “[b]abe, I miss you. I’m so useless, aren’t I?”

22. [75]

    Early the following morning, 20 November 2020 at 7:14am, the complainant sent a message of a different nature to the applicant which read as follows:

23. [76]

    In the context of the complainant feeling that the applicant was simply “using her” for sex, this message of subsequently feeling soreness after sex with the applicant the day before was consistent with both consensual and nonconsensual intercourse having occurred.

24. [77]

    Unlike the WeChat messages, the Crown was aware of this text message prior to the complainant giving her evidence. That is no doubt why the Crown attempted on four occasions to suggest to the complainant that she was not (as she repeatedly said) laying on her back during the sexual intercourse on 19 November. After the complainant gave her version in chief (of remaining on her back throughout the alleged sexual assault), she was shown this message, and the following questions were asked by the Crown:

25. [78]

    The complainant was cross-examined about how she felt over the course of the relationship when the applicant would not respond to her messages as follows:

26. [79]

    A few hours later, at 10:34am, the following WeChat messages were exchanged (Exhibit 7):

27. [80]

    At 10:41am, the complainant sent the following message:

28. [81]

    The translated exhibit which went to the jury included the written explanation about the use of the word “it” in this message:

29. [82]

    The complainant agreed in cross-examination that she was asking the applicant to come over on 20 November and that she wanted to see him again. She also agreed that when he did not offer to come over, she was upset and sent him a sad emoji. As for the message saying, “[y]ou can come to my house and do it today”, she denied that this was an invitation for sex and gave evidence that it referred to the applicant needing to do some research work, which they had discussed earlier. In re-examination she agreed with the leading question that she was asking the applicant to study at her home that day.

30. [83]

    By this time, the applicant stopped replying to her messages (presumably because he was giving the lecture he messaged her about or otherwise working). The complainant became angry that he was ignoring her. She later sent these messages (Exhibit 7):

31. [84]

    It was common ground that the message at 11:07am, sent at a time when the complainant was angry with the applicant for not replying to her messages, was the first time that the complainant had ever suggested to the applicant or anyone else that she had been sexually assaulted. The complainant initially gave evidence that she thought she disclosed what occurred to her housemates (there was no evidence that she did). She also gave evidence that she told her friend, Ms Liang, what had occurred but it was common ground that this was some time later. She ultimately agreed that she did not complain to anyone about either incident until this text. She denied that this was because the sexual intercourse was consensual.

32. [85]

    The complainant agreed that these messages were “kind of” a threat but denied that she was threatening the applicant that if he did not give her attention, she would call the police. When asked whether she would have called police if she had received a response from the applicant, she answered, “I don’t know” and “I’m not sure.”

33. [86]

    When the applicant did not respond to these messages sent at 11:07am, the complainant contacted police at around midday on 20 November 2020. This was the first complaint made to anyone about the alleged sexual assault.

34. [87]

    After contacting police, the complainant telephoned the applicant at 12:08pm, 12:28pm and 12:32pm on 20 November 2020. Her evidence was that he answered all these calls, and on one of them she said to him, “[y]ou raped me and then you didn’t want to take the responsibility and ignoring me.” During one of those calls, the complainant said something similar to “I have just called the police because you kept ignoring me”. The defence case was put to the complainant in cross-examination that she did not mention “rape” on the phone call. Her response was, “I couldn’t remember but I think I said it.”

35. [88]

    The complainant agreed that she was on the phone with the applicant at the time police arrived at her home (this is depicted in the body worn footage). She told the applicant that the police arrived and that she had to go. She could not remember whether she said to the applicant, “[d]on’t worry, let me play around with them first. I will call you later.”

36. [89]

    The police arrived at the complainant’s apartment whilst she was on the phone to the applicant (Exhibit B) (MFI 3). They then had a conversation with her which was recorded on police body worn video. She is recorded as saying this to police:

37. [90]

    The complainant gave evidence that she had told the applicant she did not want to have sex with him. She gave evidence that the applicant not responding to her messages about experiencing pain and being scared had an impact on her decision to call police because “…just making me feel he was a such – like, dick, and he didn’t really care about my feelings, he just used me as a sex toy for him.”

38. [91]

    Police sent the complainant to be examined at the hospital. After returning from the hospital, the complainant called the applicant at 9:27pm to speak with him about the police complaint. At the commencement of her evidence (given by way of AVL), she was provided with a folder of documents that she may be cross-examined on. When she was asked about the call to the applicant at 9:27pm on 20 November, she was asked to turn to page 184 of the folder. After she was taken to that page, she was asked whether during that conversation she said to the applicant:

    1. (1)

       “You played with my feelings and didn’t take up your responsibilities after sex”;

    2. (2)

       “You never spend time with me”; and

    3. (3)

       “I just think you treated me very badly, that’s why I’m causing you big troubles”.

39. [92]

    The complainant agreed that she said all three things to the applicant during that telephone conversation. Given that she agreed, the document she was shown was not tendered (presumably she was reading from a transcript of that call but it is unclear as the document she was reading from was not included in the appeal book).

40. [93]

    On 21 November 2020, at 12:55am, the complainant sent the applicant WeChat messages including (Exhibit 8):

41. [94]

    She was cross-examined about this exchange and gave the following answers:

42. [95]

    On 21 November 2020, the complainant made the complaint to Chieh-An Liang.

43. [96]

    At 9:39pm, on 21 November 2020, the complainant telephoned the applicant. Unbeknownst to her, the applicant covertly recorded that conversation (Exhibit 9). He knew by then that she had gone to police. The legality of that recording was considered by the trial judge who was satisfied that the applicant was not precluded from recording the conversation under s 7(3) of the Surveillance Devices Act 2007 (NSW). Section 7(1) provides, inter alia, that it is a criminal offence to knowingly use a listening device to record a private conversation to which the person is a party, but s 7(3) provides an exception if the principal party consents and the recording is reasonably necessary for the protection of the lawful interests of that principal party.

44. [97]

    In the conversation, the complainant asked the applicant for monetary compensation. She was cross-examined about this as follows:

45. [98]

    During the phone call, the complainant is also recorded as saying this (Exhibit 9):

46. [99]

    Significantly, the complainant was also recorded as saying this to the applicant during that call (Exhibit 9):

47. [100]

    She was asked about this in cross-examination:

48. [101]

    She was re-examined on these answers as follows:

49. [102]

    On 23 November 2020, the complainant sent the applicant a message (Exhibit 8):

50. [103]

    On or around 25 November 2020, the complainant met with the applicant at the Queen Victoria Building and discussed the allegations. She agreed that she told him that she had told the police “I don’t know whether he knew whether I was consenting or not”. She was further cross-examined about this and gave these answers:

51. [104]

    The complainant was cross-examined about some of her other WeChat messages. She agreed that on 1 December 2020 she sent the applicant a message about improving “the sexual functioning” and said, “[t]hat way, maybe I’d have an orgasm.”

52. [105]

    When asked about this, she gave the following evidence:

53. [106]

    On 7 December 2020, the following text messages were exchanged between the complainant and the Officer in Charge (“OIC”) Detective Senior Constable Evans (DSC Evans) (Exhibit 14):

54. [107]

    It was common ground that the complainant decided not to pursue her complaint on 7 December 2020. That same day, she messaged the applicant including the following (Exhibit 10):

55. [108]

    When asked about this exchange she said:

56. [109]

    After the complainant denied wanting a sexual relationship with the applicant as at 7 December, she was shown the following messages sent to the applicant by WeChat the following day, on 8 December 2020 (Exhibit 11):

57. [110]

    The translated exhibit which went to the jury included the written explanation about the use of the word “I” in this message:

58. [111]

    As I have already stated above, the relevance of this evidence is not to suggest that the complainant should not be believed because this conduct is inconsistent with how a sexual assault victim would behave. Rather, I am satisfied it is relevant to her motive in reporting the applicant to police, to her ongoing communications with police and her reliability generally.

59. [112]

    The complainant then on 9 December 2020 sent the following message to the applicant as the follow up to her previous message telling him that she wanted to “eat cock” (Exhibit 11):

60. [113]

    The applicant did not reply to this message either.

61. [114]

    The complainant was cross-examined about these messages as follows:

62. [115]

    The applicant did not respond to these messages. The complainant agreed that when he did not respond that was a “trigger” for deciding to pursue her complaint with police again. The following day, on 9 December 2020, the following exchange occurred between the complainant and DSC Evans (Exhibit 14):

63. [116]

    Despite assuring police that she would not contact the applicant, the following day, on 10 December 2020 the complainant sent further messages to the applicant including the following (Exhibit 12):

64. [117]

    These messages were all sent after the complainant had revived her complaint with police and after agreeing with police that she would not contact the applicant.

65. [118]

    On 24 December 2020, DSC Evans arranged to record a “pretext” phone call between the applicant and the complainant. During this phone call made at 10:46am, the complainant discussed the charges with the applicant and asked him whether he regretted “the incident”.

66. [119]

    The pretext call has been translated from Mandarin and the transcript of it is at times somewhat stilted and difficult to follow. There is a discussion of mutual friends and how much a lawyer is going to cost the applicant. Unusually for a pretext call of this nature, the applicant is well aware that the complainant has already gone to police, although it is unclear whether he knew any of the details of the allegation besides what was in the texts sent on 20 November 2020. In the pretext call, the complainant explains to the applicant that she had forgotten about “the incident” but was reminded of it the previous day and is now sad and wants to talk to him about it. She tells him that she does not know whether police will charge him.

67. [120]

    I do not consider it necessary to extract all of the conversation, but I have included the following portions of it to try to convey its tone and content. Although it is to be accepted that the applicant does not outright deny any sexual assault, he is clearly being cautious in his engagements with the complainant so as not to upset her. It is of some significance that he tells her he has nothing to regret.

68. [121]

    The following exchange occurred (Exhibit C):

69. [122]

    And later:

70. [123]

    In the same call the complainant also said:

71. [124]

    It is unclear what the complainant meant by her reference to screaming on the bed. It was no part of her evidence that she ever screamed at the applicant during sexual intercourse on either 14 or 19 November.

72. [125]

    The applicant responded:

73. [126]

    And later:

74. [127]

    That same day, after this covertly recorded pretext call, the complainant telephoned the applicant at 12:32pm, not as a part of the pretext call (and contrary to police instructions). She was cross-examined about this. She agreed that two hours after the covert conversation she telephoned the applicant. She could not remember whether she asked him to meet her the following day (Christmas day). She also could not remember whether she asked him to take her to a hotel room and have sex with her nor whether she told him that she did not have any listening device on her.

75. [128]

    In early 2021 (the evidence as to the precise date is unclear), the complainant contacted DSC Evans and asked to suspend the police complaint yet again.

76. [129]

    On 26 January 2021, the complainant sent the applicant messages including (Exhibit 13):

77. [130]

    The translated exhibit which went to the jury included the written explanation about the use of the word “hook up” in the first messages:

78. [131]

    She was cross-examined about these messages as follows:

79. [132]

    The complainant accepted that on 7 December 2020, DSC Evans had instructed her to try and minimise contact with the applicant, and that she had “not entirely” followed this advice.

80. [133]

    On 27 January 2021, the complainant sent the applicant messages including the following (Exhibit 13):

81. [134]

    The applicant responded later that day:

82. [135]

    The complainant then messaged:

83. [136]

    On or around 1 February 2021, the complainant met the applicant in the East Village Shopping Centre and asked him to come back to her apartment to change a light globe which he did. She agreed he was reluctant to come back. In cross-examination the following exchange occurred:

84. [137]

    She then gave this evidence:

85. [138]

    On 24 February, 25 February and 1 March 2021, the complainant sent the applicant the naked photograph she had taken of him (without his permission) in the hotel room on 12 September 2020 (Exhibit 2). Her evidence was that she did this “for fun”. When she sent it to him on 24 February 2021, she sent the message with it, “[b]abe, I made it as a sticker.”

86. [139]

    On or around 3 March 2021, the complainant arranged to go on a “date” with the applicant to the zoo. The complainant asked the applicant to buy her a G-string to wear. She agreed that she was sexually interested in the applicant at this time. The applicant did not buy the underwear. She could not remember whether she told the applicant that she was not wearing any underwear during their date. She denied pursuing a sexual relationship at the time they went to the zoo.

87. [140]

    On 29 April 2021, the complainant sent the applicant a nude photo of herself. She agreed in cross-examination that she did so in an attempt to try to seduce him, to entice him”. She agreed she thought it was a “sexy photograph”. The applicant did not respond to her that day.

88. [141]

    On 30 April 2021, the complainant sent the applicant a message referring to the nude photo she had sent:

89. [142]

    The complainant agreed in cross-examination that this was also part of her attempts to entice or seduce him but denied that she was pursuing a sexual or romantic relationship with him.

90. [143]

    There was no evidence adduced at trial as to any communications between the applicant and the complaint between 30 April 2021 and 29 March 2022.

91. [144]

    On 29 March 2022, the complainant and applicant exchanged messages about places to live. The complainant messaged the applicant: “Come to my place for some fun”. She denied in cross-examination that this had any sexual connotation. She agreed that these messages were 18 months after the alleged sexual assaults.

92. [145]

    That same day, the complainant and the applicant had an argument via messages about the HPV vaccine which included the complainant messaging:

93. [146]

    The last time they communicated by text was 29 March 2022.

94. [147]

    The following day, on 30 March 2022, the complainant messaged DSC Evans at 12:54pm (Exhibit 14):

95. [148]

    Subsequently the applicant was arrested by DSC Opie, in April 2022, and declined to be interviewed.

Other Crown witness

1. [149]

   The remaining three witnesses did not add much to the evidence I have already summarised in this chronology.

2. [150]

   Zihong Li lived with the complainant in the apartment in Zetland in November 2020. They were not friends when she first moved in, but they were friends by the time of the trial. Mr Li had met the applicant prior to 19 November 2020 but could not recall when.

3. [151]

   Mr Li was home on 19 November 2020. He recalled seeing a mobile phone that did not belong to him or any of his roommates, sometime between 3:00pm and 4:00pm. At this time, the complainant was in her bedroom and Mr Li heard talking coming from the room. He denied seeing anyone other than his housemates in the apartment that day. He did not speak to the complainant about anything that happened to her that afternoon, or anytime thereafter.

4. [152]

   Mr Li had two cats. In cross-examination, it was suggested to him that he saw the complainant and a visitor play with the cats in the living room on 14 November 2020. He rejected this suggestion on the basis that the cats were in his room at that time.

5. [153]

   Mr Li accepted that he had been in the kitchen or living room between midday and 4:00pm on 19 November 2020, and so would have seen the complainant if she was in the area. He gave evidence that he saw her on the sofa but denied seeing anyone else on the sofa.

6. [154]

   Chieh-An Liang is a friend of the complainant. As at the date of giving evidence, they had been friends for three or four years. Ms Liang gave evidence that the complainant told her about the applicant in 2020. Ms Liang did not meet the applicant but knew of him through university connections.

7. [155]

   On 21 November 2020, Ms Liang had a conversation with the complainant who confided in her that something had happened, and she needed someone to talk to. The complainant came to Ms Liang’s house. The complainant told Ms Liang that the applicant had tried to force himself on her and she had said “no”, but he had still persisted. The complainant informed Ms Liang that she had reported the incident to police.

8. [156]

   Ms Liang gave evidence that at the time of the disclosure, the complainant was initially composed, but then became “very triggered and very uncertain about how to proceed”. Ms Liang offered her support to the complainant. Ms Liang gave evidence that she had not spoken to the complainant about the incident since this conversation, though she speaks to the complainant once every few months, and occasionally the complainant will tell her things such as that the trial is still ongoing.

9. [157]

   In cross-examination, Ms Liang confirmed that at some point a few months before 21 November 2020 the complainant told her that she was seeing the applicant romantically.

10. [158]

    Ms Liang also gave evidence in cross-examination that the complainant had told her that the relationship with the applicant was “on and off” and “complicated” but denied that the complainant ever told her that she was trying to persuade the applicant into a relationship.

11. [159]

    Ms Liang could not recall if the complainant informed her of the date that the incident occurred on. She confirmed that the complainant only spoke about one incident with her.

12. [160]

    Ms Liang did not ask for further details regarding the incident because she thought that the applicant felt uncomfortable. The complainant did not tell Ms Liang that she went out for bubble tea with the applicant after the incident, that she had gone out with him for dinner after the incident, or that she asked him to be her boyfriend. The complainant did not show Ms Liang any messages.

13. [161]

    Ms Liang also accepted that she and the complainant had had further conversations about the applicant following 21 November 2020.

14. [162]

    Detective Senior Constable Jay Opie took over from DSC Evans as OIC in April 2022. He agreed that there was a period of time during which the investigation was suspended, on instructions from the complainant.

15. [163]

    DSC Opie gave evidence that the medical examination of the complainant at the hospital following her initial police report returned a result of blood on the low vaginal smear. This blood is consistent with both consensual and non-consensual sexual intercourse. There were no other relevant forensic results.

16. [164]

    DSC Opie gave evidence that a used condom was found in the complainant’s apartment containing semen. A DNA analysis confirmed that the semen originated from the applicant.

17. [165]

    In cross-examination, DSC Opie confirmed that the applicant had never been accused of, charged with, or convicted of a sexual offence. He was shown a Cellebrite download of the complainant’s phone that only contained the saved data and not the text messages or chat messages from other applications. DSC Opie confirmed that he had been unable to get the complainant’s phone to conduct a further examination because the complainant was no longer in possession of the phone.

18. [166]

    I do not consider it necessary to summarise the Crown closing address. It can be summed up in this brief passage:

19. [167]

    The applicant’s case at trial was that the sexual intercourse that occurred on both dates was consensual. He did not dispute that intercourse occurred but the defence case, put to the complainant in cross-examination, was that the complainant did not cry or say “no” or resist in the manner she described in her evidence.

20. [168]

    The applicant did not give evidence nor call any witnesses.

21. [169]

    The defence case at trial closed on the contention that the jury ought to hold a reasonable doubt as to whether the sexual activity on 14 and 19 November 2020 was non-consensual, and known by the applicant to be non-consensual, because of the evidence about the reliability of the complainant’s account and the applicant’s prior good character.

22. [170]

    There is no complaint made about the summing up. I do not consider it necessary to set it out in any detail, but I have extracted the trial judge’s direction as to the third element (whether the applicant knew that the complainant was not consenting) as well as the jury warnings against “rape myths” as follows:

23. [171]

    The trial judge also gave standard warnings against having preconceived ideas about consent as follows:

Ground 1: The verdict on Count 2 is unreasonable

1. [172]

   The applicant accepted that the jury had the benefit of seeing and hearing the complainant give her evidence at trial. However, a doubt experienced by an appellate court, following an assessment of the evidence, will in most cases be one which a jury ought also to have experienced: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494.

2. [173]

   Reliance was placed on a number of inconsistencies and improbabilities in the complainant’s account. I have addressed these matters in my consideration below.

3. [174]

   The appellant submitted that this Court would, in line with Leeming JA’s comments in Hodgson v R [2022] NSWCCA 72 at [99], adopt the “conventional” approach of starting with the “incontrovertible or unchallenged facts” and “evaluat[ing] the conflicting testimonial evidence against those matters”. Here the applicant submitted that this Court would consider the messages exchanged between the applicant and the complainant, both before and following the incidents, as capable of undermining the persuasiveness and reliability of the complainant’s evidence that she was sexually assaulted by the applicant.

4. [175]

   The appellant submitted that notwithstanding that it is impossible to generalise how any individual complainant might respond to a sexual offence, and taking into consideration the jury’s advantage, the complainant’s conduct in this matter “transcends the natural variations” that one might expect. It was submitted that the conduct is more consistent with the sexual intercourse on both occasions being consensual, or at least there being a “reasonable possibility” that they were. The complainant’s suspension of the investigation, and recommencement after rebuffs from the applicant, was also submitted to be give rise to the “reasonable possibility” that the complainant was motivated to falsify an account as a means of coercing the applicant into a relationship.

5. [176]

   The applicant submitted that the discrepancies and improbabilities intrinsic to the complainant’s account rise to a level that would cause this Court to entertain a doubt as to the applicant’s guilt in respect of Count 2. The applicant submitted that the conviction on Count 2 in the face of these improbabilities and discrepancies is not explainable by any advantage that the jury might have enjoyed. The applicant drew the court to four specific deficiencies in the complainant’s account.

6. [177]

   The Crown provided detailed written submissions. Central to those submissions was the contention that the determination of this ground proceeds on the assumption that the jury assessed the evidence of the complainant to be credible and reliable. Adopting that assumption, the function of this Court is an examination of the record to determine whether the jury acting rationally ought nonetheless to have entertained a reasonable doubt as to the applicant’s guilt because of inconsistencies, discrepancies or inadequacies in the complainant’s evidence, or in light of other evidence.

7. [178]

   It was submitted that the applicant’s submissions do not sufficiently explain why this case would form an exception to the principles outlined in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, Z (a pseudonym) v R [2022] NSWCCA 8, AS v R [2022] NSWCCA 291 and JL v R [2023] NSWCCA 99 that constrain the circumstances in which an appellate court can disbelieve a witness when that witness’s evidence appears to have been accepted by a jury.

8. [179]

   The Crown distinguished the present matter from Hodgson v R [2022] NSWCCA 72 on the basis that there is no uncontested evidence contradicting the complainant’s account in this case.

9. [180]

   In relation to the conduct of the complainant between the first and second counts, the Crown submitted that the applicant’s submissions and characterisation of the complainant’s behaviour failed to engage with the complexity of responses when sexual assault occurs in the context of a pre-existing relationship. In relation to the text message on 19 November 2020, the Crown submitted that the possibility of “double entendre” was only raised by the translator and not by either party to the communication.

10. [181]

    In relation to the conduct of the complainant following Count 2, the Crown submitted that the applicant’s submissions overlooked the fact that the response of a complainant in an existing relationship with an alleged offender might be more complex and nuanced than the reaction of a person without any emotional attachment to the perpetrator.

11. [182]

    The Crown also submitted that the applicant’s submissions assume that all complainants will perceive the offence against them with the same degree of seriousness and experience the same level of trauma. The question of whether the elements of the offence were proved beyond reasonable doubt did not depend on the complainant’s subjective perception of the seriousness of the violation against her.

12. [183]

    Emphasis was placed on the fact that the complainant’s account was consistent throughout, and she did not at any stage resile from it.

Consideration

1. [184]

   Section 6(1) of the Criminal Appeal Act relevantly provides that this Court shall allow an appeal against conviction if it is of the opinion that the verdict should be set aside on the ground that it is “unreasonable, or cannot be supported, having regard to the evidence”. The High Court has stated the relevant principles in a number of decisions, and they are well established.

2. [185]

   In determining this ground, the question is whether the court thinks that “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8], The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], M v The Queen at 494-495. In considering this question, the court must not disregard or discount the fact that it is the jury which was entrusted with the primary responsibility of determining the applicant’s guilt. The court must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses and in particular in this case, the complainant, give her evidence: Dansie at [9], M v The Queen at 494-495, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13], Pell v The Queen at [37].

3. [186]

   As the High Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) observed in The Queen v Baden-Clay at [65]-[66] (footnotes omitted):

4. [187]

   Similarly, in Pell v The Queen, the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) observed the following at [38]-[39] (footnotes omitted):

5. [188]

   The function to be performed by this court is to make its own independent assessment of the evidence and determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence: Dansie at [7]. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred: M v The Queen at 494-495.

6. [189]

   Given the numerous appeals to this Court contending that jury verdicts in sexual assault trials are unreasonable (within the meaning of s 6(1) of the Criminal Appeal Act), this Court has had the opportunity to restate these principles many times in the context of sexual assault trials. The Crown relied on the decision of the High Court in Pell v The Queen as well as the decisions of this Court in Z (a pseudonym) v R and JL v R to emphasise the constraints placed on an intermediate appellate court before it can disbelieve a witness who has been accepted by a jury.

7. [190]

   In Z (a pseudonym) v R, this Court considered a ground of unreasonableness in a sexual assault trial based on a number of matters affecting the credibility of the complainant. Those matters included a failure to initially complain of certain aspects of the assault, late complaint, hyperbole and the fact that the complainant gave evidence that she had been spoken to by her dead grandfather through a clairvoyant. In response, Macfarlan JA, with whom Brereton JA and Beech-Jones CJ at CL agreed, observed the following at [29]:

8. [191]

   Similarly, in JL v R, this Court considered a ground of appeal that verdicts in a sexual assault trial were unreasonable based on a number of matters affecting the complainant’s credibility. Adamson JA, with whom Ierace and Sweeney JJ agreed, adopted these observations in Z (a pseudonym) v R at [90] as follows:

9. [192]

   In considering this ground of appeal I have had regard to these principles. It is to be accepted that it is well established that there are necessary and obvious constraints on an appellate court’s capacity to hold a reasonable doubt in relation to a conviction for a sexual assault offence where that conviction turned on an acceptance of the complainant’s version of events by the jury. But, even acknowledging that upholding such a ground may be “unusual” and subject to constraint, as the High Court held in Pell v The Queen at [39], it is nonetheless the court’s role to examine the record to see whether “either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence” it is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

10. [193]

    In addition to these well-established principles, I have also had regard to the repeated statements by this Court to the effect that it is unhelpful to contend that a conviction for a sexual assault offence is unreasonable because the complainant’s credibility is undermined by the fact that she (or he) did not behave consistently with how a victim of sexual assault would behave. I summarised some of those statements in Harper v R [2022] NSWCCA 211 at [184]-[191] and consider it appropriate to extract those passages in full here:

11. [194]

    Having considered the whole of the evidence, I have arrived at the conclusion that this is one of those unusual cases in which the jury ought to have held a doubt not only in relation to the first alleged sexual assault on 14 November 2020 (which they did) but also in relation to the second alleged sexual count on 19 November 2020 in relation to which the applicant was convicted. In arriving at this conclusion, I have been careful to ensure that I have not erroneously relied on any assumptions as to how an alleged victim of a sexual assault is expected to behave. I am satisfied that there are simply too many discrepancies and inconsistencies in the complainant’s evidence to conclude that the jury’s verdict was a reasonable one based on the evidence.

12. [195]

    The reasons why I am satisfied that the jury ought to have had a doubt in this matter are to be considered in the context of the Crown case that went to the jury. The complainant’s evidence in relation to both Count 1 (of which the applicant was acquitted) and Count 2 (of which he was convicted) was not that the applicant was reckless as to whether the complainant was consenting nor that he had no reasonable grounds to believe that she was consenting: s 61HE of the Crimes Act (the alleged events occurred in November 2020 prior to the amendments to the NSW consent laws which came into effect on 1 June 2022). The Crown case was that the applicant knew that she was not consenting.

13. [196]

    This was not a case where the complainant’s allegation was that she “froze” or was otherwise unable to convey to the applicant that she was not consenting (contrary to the warning given by the trial judge about that prospect). Nor was this a case where the complainant alleged that the applicant failed to ascertain from her whether she was consenting. This was not said to be a case of miscommunication. The Crown case on both counts was that the complainant was crying and saying “no” or “stop” or “I don’t want to” either after she changed her mind and withdrew her consent (Count 1) or throughout the entire sexual intercourse (Count 2) and that she was physically resisting the applicant. In that context, the following 10 aspects of the complainant’s evidence in particular have left me with a distinct feeling of unease as to this conviction and have led me to conclude that the jury should have entertained a reasonable doubt.

14. [197]

    First, the timing of the first complaint gives rise to concern. It was at a time when the complainant was angry that the applicant was having sex with her without committing to a relationship. After the alleged sexual assault on 19 November, the complainant had a lengthy conversation with the applicant about their relationship and her feelings for him and how she wanted him to be her boyfriend and his response was “[i]t’s a bad idea” and “we shouldn’t do it”. At 8:55pm, she texted him, “[h]andsome boy, I miss you. I am so hopeless, aren’t I?” The following morning, having no doubt reflected on the night before, she sent him a message describing feeling soreness or pain after sex and wanting him to come over again. He did not offer to do so.

15. [198]

    The complainant continued to communicate with the applicant that morning and it was only when she realised that he was not coming over to see her (in the context of this being an ongoing issue in their relationship) that she made an allegation of “rape” for the first time. The complainant’s evidence was that she went to police because the applicant would not return her messages.

16. [199]

    Secondly, other than this first allegation of “rape” in her text at 11:07am on 20 November, all of her subsequent accusatory messages to him did not refer to any “rape”; only to his failure to commit to her. On 21 November 2020, the day after she called police, the complainant sent the applicant a WeChat message at 12:55pm asserting that:

17. [200]

    This message reflects the complainant’s primary complaint against the applicant which is that he did not want to be in a committed relationship with her. The difficulty is that she often conflated her complaint of sexual assaults by the applicant with her primary complaint that the applicant did not want a romantic relationship with her. In addition to this message on 21 November, she telephoned the applicant at 9:27pm on 20 November 2020, having returned home from the hospital, and told him:

18. [201]

    One is left with the distinct feeling that this is the true complaint and the complainant has either embellished or misremembered the account of the nonconsensual activity. These messages cast doubt on the complainant’s allegation of sexual assault in that they are entirely focussed on the applicant’s failure to not respect her feelings or commit to a relationship.

19. [202]

    Similarly, during the lengthy conversation with the applicant in the lobby of her building on 19 November 2020 (shortly after the alleged sexual assault that day), the complainant accepts that she made no allegation of any sexual assault. Instead, they spoke for an hour about, to use the complainant’s words, “why we were having sex but – and then I was wanting a relationship with him and that sort of stuff”. In the context that, on her account, she had been crying during sex saying “no” saying “stop” and physically resisting the applicant, the fact that her only “complaint” to him was that she wanted to be in a relationship with him is difficult to understand.

20. [203]

    Thirdly, during the secretly recorded conversation on 21 November 2020 (the day after the complainant first contacted police) when the complainant telephoned the applicant to ask for monetary compensation, she is recorded as telling him that she had told police that on “Thursday” (19 November 2020) and “last Saturday” (14 November 2020), “I was a little bit unwilling, but not completely unwilling …”. She did not resile from this in cross-examination.

21. [204]

    Her description of being “not completely unwilling” is inconsistent with the version she gave to police and her evidence in court that she did she want to have sexual intercourse with the applicant from the outset on 19 November and that she was physically resisting him, crying and repeatedly saying “no” and "stop”. It is the inconsistency on this issue which is of concern.

22. [205]

    The complainant also agreed that on 25 November 2020 she told the applicant that she had told police, “I don’t know whether he knew whether I was consenting or not”. She later gave evidence that she only meant this in relation to the first incident, not the second incident. But her evidence in relation to the first incident was also that, after she withdrew her consent, she was crying and saying “no”. Although it is to be accepted that the complainant could not know what was in the applicant’s mind, it is difficult to reconcile her evidence on this issue which is no doubt why the jury acquitted on Count 1.

23. [206]

    As for the complainant’s request for monetary compensation per se, I do not consider that fact to be anything other than neutral. Just because a complainant might seek financial compensation from an alleged offender instead of reporting the matter to police in exchange for withdrawing a complaint does not necessarily mean that the account is untrue.

24. [207]

    Fourthly, on any account the complainant manipulated investigating police and the criminal justice system depending on whether the applicant responded to her calls or not. The interactions with police from 7 to 9 December 2020 show that the complainant messaged the officer in charge, DSC Evans, on 7 December 2020 to tell him to stop the investigation. The following day, she texted the applicant, “I want cock”. When he did not respond (at a time when he knew that she had made a police complaint against him), she followed up with the message, “[o]lder brother do you know how to negotiate a counter offer”. When he did not reply to that message either, she became angry and contacted police and revived the investigation on 9 December 2020. She agreed that a trigger for doing so was because he did not reply to these texts.

25. [208]

    Fifthly, the complainant’s answers when confronted with the WeChat messages on 26 January 2021 were particularly problematic. On that day, she messaged the applicant: “Wanna hook up”, “[Let’s] hook up”, “Please…”, “[I’m] begging you”, “Do you want to come to my place for a visit?”, “Older brother when are you coming to my place to play.” In cross-examination she denied that she sent these messages because she wanted to have sex with the applicant; rather, she gave evidence that she just wanted to meet him because police had asked her to get “more evidence" and to get “new evidence”.

26. [209]

    By the time of the trial, the officer initially in charge of the investigation, DSC Evans, had been replaced by DSC Opie, who gave evidence at trial. Thus, the complainant’s allegation that she had been asked by DSC Evans to get evidence against the applicant was not put to DSC Opie. Despite this, I am satisfied that the complainant’s evidence on this issue was untruthful. It is implausible that a police officer would condone a sexual assault complainant trying to obtain evidence against a suspect by sending sexually explicit messages to him. Further, the text messages with police in Exhibit 14 confirm that she was in fact told not to contact the applicant. The complainant lied to police by saying that she would not contact the applicant when she clearly had every intention of doing so. Further, her suggestion that she was effectively acting as an agent of the State in sending texts, such as the one about wanting to “hook up” with him, is yet another factor which leads me to a reasonable doubt about the conviction.

27. [210]

    Sixthly, at the time the complainant gave her evidence in chief the Crown was in possession of the texts she sent to the applicant on 20 November in which she referred to the applicant having penetrated her from behind. When she gave her evidence in chief that she was lying on her back, the Crown repeatedly sought clarification of this, but the complainant did not resile from her account that she was on her back during the alleged assault on 19 November and that she could not get him off her because “[h]e was stronger than me” and “I was exhausted and I was - I just want to go to sleep.” It was not until after she had given this evidence that the Crown showed her the text, at which time the complainant suggested, for the first time, that they “must have” changed positions. She did not give evidence as to how or when that occurred.

28. [211]

    I have considered this aspect of the complainant’s evidence carefully in light of frequent warnings by this Court against making adverse findings about a traumatised victim’s recollection of surrounding detail of an alleged assault. For example, in Reed v R [2006] NSWCCA 314 at [314] Spigelman CJ (with whom McClellan CJ at CL and Sully J agreed) observed this on the topic:

29. [212]

    This passage was recently cited with approval by Adamson JA (Dhanji and Sweeney JJ agreeing) in RM v R [2024] NSWCCA 148 at [231]. There have been similar statements in other decisions of this Court to the effect that a complainant’s credibility will usually not be impugned because she (or he or they) cannot recall what position they were in during an assault or other peripheral details.

30. [213]

    I have considered these principles but, in this case, they cannot explain the inconsistency between the complainant’s evidence and her text message sent the following morning. The complainant gave a detailed account of the alleged sexual assault on 19 November. She had a number of opportunities to carefully recall how she was positioned; the Crown pressed her on it (not inappropriately) a number of times. Despite these 'prods', she maintained on each occasion that she was lying on her back. This was not a peripheral detail given her account of trying to get the applicant off her during the alleged assault. In that context, the fact that when she was confronted with her texts to the contrary the following morning she suggested that she must have been in a different position, has greater significance than it otherwise might have.

31. [214]

    Furthermore, an unusual aspect of this case is that, on the Crown case, the complainant was not traumatised by the alleged sexual assault. It was submitted on behalf of the Crown at the hearing of this appeal that it is “abundantly clear” throughout the different conversations between the complainant and the applicant that she was not “traumatised” by the alleged sexual assault; rather, she clearly wanted to continue a relationship with him. At no stage, was it ever any part of the Crown case that the complainant had trouble recalling the details of the alleged assault due to trauma.

32. [215]

    Seventhly, the complainant’s evidence in chief was that when the applicant came to her place on 19 November 2020 she wanted to work as it was a workday. Her evidence was that when he started kissing her, she said that she told him to stop because she was working. In cross-examination she was confronted with her WeChat messages sent that morning in which she had not only asked him to “cum” over quickly but also told him that she did not want to work that day. She denied any double entendre was intended by sending him a message which read, “[o]lder brother cum over quickly”. She also gave evidence that the use of the term of endearment “Older brother” was a typing mistake by her (despite the fact that she frequently addressed him in that way). But even her version (led from her in re-examination) that she meant to say in that message, “[h]oney, could you come to bed early?”, was inconsistent with her evidence in chief during which she conveyed the impression that when the applicant came over, she wanted to keep working that day.

33. [216]

    Again, to be clear, merely because the complainant invited the applicant over in a sexually enticing way, wanted him to be her boyfriend, and told him that she did not want to work that day does not mean that she could not have changed her mind about these matters by the time he arrived and instead wanted to do her work instead. But that was not her evidence. At no stage, did she suggest that there had been a change of heart on her part. In cross-examination, she maintained that despite the message clearly stating otherwise she wanted to work that day. It is the fact that she was caught in the lie when confronted with the message which casts doubt on her account.

34. [217]

    Eighthly, the complainant was shown a number of messages that she sent the applicant after 14 November which were clearly sexualised in nature but which she denied were intended to sexually entice the applicant or were sent because she wanted to have sex with the applicant. To be clear, as I have already stated, the concerns I have about these answers is not that after allegedly being sexually assaulted by the applicant (twice) the complainant continually sent sexually provocative texts to him; it is the fact that she denied the nature of these clearly sexualised texts when confronted with them in cross-examination.

35. [218]

    For example, the complainant denied that she sent the image of the “dogs in heat” on 17 November 2020 to elicit a sexual reaction from the applicant, despite subsequently suggesting to him, “I thought you went to jerk off” and “every time you see me [you’re] like a male dog in heat.” The complainant also denied that when she sent a naked photo of herself to the applicant (after she had reported him to police), she wanted him to “have a sexual reaction to it, to be sexually interested”. When this was put to her, she replied (through the interpreter), “[n]o, no. Mainly catching his attention.” There are numerous other examples of this extracted in the chronology above.

36. [219]

    Ninthly, the complainant gave inconsistent evidence about her intentions insofar as pursuing a relationship with the applicant when she was sending him sexualised messages and asking to meet up with him in the first part of 2021. She agreed that she wanted the applicant to buy her a G-string when they went to the zoo on a date because she was still sexually interested yet also denied that she was pursuing a sexual relationship with him at that time.

37. [220]

    It is to be accepted that a victim of a sexual assault may well have conflicted or mixed feelings towards a perpetrator. For example, a woman may “forgive” a sexual assault if there is hope of a romantic relationship commencing or continuing. My concern is not about the extent to which the complainant aggressively pursued the applicant for a sexual relationship after she went to police to report that he had sexually assaulted her. Rather, my doubts concern her denials about this at various times in her cross-examination and the internal inconsistencies in her evidence on these issues.

38. [221]

    Tenthly, the applicant was ultimately arrested in April 2022. This was 18 months after the alleged assaults and the day after the applicant again rebuffed the complainant sexually. On 29 March 2022, the complainant messaged the applicant asking him to come to her place for “some fun”. In her evidence, she denied that this was a reference to sex. The applicant did not reply. As a result, the following day the complainant contacted police and reactivated her complaint. The circumstances of her doing so were the same as when she reactivated the proceedings on 9 December 2020: the applicant’s lack of response to her sexual advances. She had sexually pursued him on and off for 18 months and when he failed to come over to her place for “some fun” she contacted police.

39. [222]

    On any view, the complainant weaponised her complaint and used it to try and force the applicant to be in a relationship with her. To be clear, just because a person weaponises a complaint of sexual assault does not in and of itself mean that the assault did not occur. But in this case, when added to the other matters I have outlined above, it has led me to have further doubts about the applicant’s conviction.

40. [223]

    In considering the complainant’s credibility, and by that I am referring to both her reliability and her honesty, I have paid particular regard to the Crown submission that at no stage did the complainant ever resile from her account. I have also considered the Crown submission that the complainant was “unflinchingly honest” about a variety of matters in her evidence. It was further submitted that the applicant’s submission that the complainant was unwilling to make concessions is difficult to reconcile with many of her answers in cross-examination when she did make concessions.

41. [224]

    As for the inconsistencies in the complainant’s account, the Crown submitted that the fact that the trial judge (in response to a submission by defence counsel) suggested to the complainant that she try and answer in English when she could, might explain some of the inconsistencies in her answers. It was accepted by the Crown that the complainant understood English and that there was an element of speculation in her submission, but the court was nonetheless invited to look at her inconsistent answers to questions such as “did you want to have sex with him?” and factor in that she was often answering in English without the use of an interpreter.

42. [225]

    Having considered the transcript of the complainant’s evidence, I am satisfied that she used the interpreter in cross-examination when she needed and was responsive to questioning. I am not satisfied that the fact that English was the complainant’s second language removes any of the doubts I have.

43. [226]

    I have also considered the responses of the applicant in the pretext call. It is to be accepted that he did not outright deny that there had been “an incident”, but he did say he had nothing to regret. Further, when the communications between the complainant and the applicant are viewed overall, my impression is that the applicant was put in a difficult position. He did not know how to respond to the complainant or whether to reply at all to her frequent messages. By way of example, the complainant accepted that when she asked the applicant over to her bedroom to change a lightbulb on 1 February 2021, he was reluctant to go. When she then suggested they have sexual intercourse, he refused but when she demanded he buy her an iPhone later that day he complied. It seems to me that his cautious approach to dealing with the complainant is consistent both with the allegations being truthful and with them being false. On this basis, it is difficult to draw any inferences adverse to the applicant based on any of his conduct after the allegation is made, including in the pretext call.

44. [227]

    Having made my own independent assessment of the whole of the evidence, I am not satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. To put this another way, I am not satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt as to the accused’s guilt on Count 2. Having arrived at that conclusion, I have considered whether the jury’s advantage in seeing and hearing the complainant is capable of resolving my doubt about the conviction. I have kept at the forefront of my consideration the vital role of the jury and the statements by this Court that concluding that a jury has, effectively, “got it wrong” would only occur in an unusual case. I have arrived at the conclusion that the jury’s advantage does not resolve my doubt, that this is one of those unusual cases and that the appeal should be allowed.

45. [228]

    Given my finding on Ground 1, there is no need to consider Ground 2.

46. [229]

    For these reasons, I would propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Allow the appeal.

    3. (3)

       Quash the conviction and enter an order of acquittal.

47. [230]

    IERACE J: I have had the considerable benefit of reading the careful and thorough analysis of the evidence in the trial by N Adams J in her Honour's draft judgment.

48. [231]

    Based on my own consideration of the complainant's evidence in the context of her text messages with the applicant and communications with police, I agree with her Honour's assessments and determinations and thus with her Honour's proposed orders.

49. [232]

    SWEENEY J: I have had the benefit of reading in draft the judgment of N Adams J. I gratefully acknowledge her Honour’s detailed recitation of the complainant’s evidence, and her analysis of her evidence, which I will not repeat.

50. [233]

    Having conducted my own independent assessment of the evidence in the trial, I agree with N Adams J, for the reasons her Honour gives, that the complainant’s evidence was not of sufficient quality, consistency and reliability to prove beyond reasonable doubt the applicant’s guilt of the offence charged in Count 2. The doubt I have experienced is a doubt the jury should have also had.

51. [234]

    Therefore I agree with her Honour’s disposition of Ground 1, and the orders her Honour proposes.