Xu v R

1. [1]

   BATHURST CJ: I have had the advantage of reading the reasons of Harrison J in draft. These reasons accord with the reasons I joined in the orders made by the Court on 28 June 2019.

2. [2]

   HARRISON J: Jiaheng Xu appeals against his convictions for one offence of indecent assault contrary to s 61L of the Crimes Act 1900 and one offence of sexual assault contrary to s 61I of that Act. Mr Xu had been tried before his Honour Walmsley ADCJ and a jury between 12 November 2018 and 21 November 2018. In addition to these guilty verdicts, Mr Xu was acquitted of two further counts under s 61L and two further counts under s 61I. His Honour directed a verdict of not guilty with respect to a further count under s 61I.

3. [3]

   At the trial, it was not in dispute that Mr Xu and the complainant had engaged in sexual acts. Mr Xu maintained that these acts were consensual. The significant issue for the jury to decide was whether the prosecution could prove beyond reasonable doubt that the complainant was not consenting and that Mr Xu knew that he was not consenting.

4. [4]

   At the hearing of this appeal, Mr Xu was granted leave to file an amended notice of appeal which contained the following grounds:

5. [5]

   On 28 June 2019, this Court made orders allowing Mr Xu’s appeal, quashing his convictions and directing the entry of verdicts of acquittal. My reasons for joining in the orders of the Court are as follows.

Background facts

1. [6]

   The timing, sequence and nature of the events that gave rise to the charges are important. Counts 1 and 2 on the indictment, of which Mr Xu was convicted, were based on events that occurred on 12 August 2017. The five remaining counts, of which Mr Xu was acquitted, were based on events that occurred on 19 August 2017.

2. [7]

   At the time of giving evidence, the complainant was 23 years of age. He had enrolled in a Bachelor of Arts Degree at the University of Wollongong in 2014. Whilst studying at the university he came to know Mr Xu. He said that they met “kind of out of the blue” in his second year towards the start of 2015 following a lecture. At the beginning of their friendship, they usually met up in university classes, sitting together and working on class projects. Overtime they grew closer and would “hang out” out of class.

3. [8]

   Towards the end of 2015, Mr Xu made advances towards the complainant, asking him to be his boyfriend. The complainant said that he did not want that because he was not gay. The complainant made it clear that he was okay with Mr Xu being gay but did not want a relationship.

4. [9]

   The complainant outlined the circumstances in which Mr Xu made advances. He said that they went out for lunch in Wollongong somewhere and Mr Xu “kind of just asked when we were walking to the car or something like that”. The complainant could not recall the exact words used but recalled Mr Xu wanted to be more than friends. The complainant began to receive gifts from Mr Xu, including a phone and $100 gift voucher.

5. [10]

   There was a change in their relationship in 2016. The complainant began receiving confronting SMS text messages from Mr Xu containing threats of self-harm. The complainant told Mr Xu to get help and stopped correspondence with him entirely. During that time, Mr Xu sent a long chain of messages over the course of the holidays through to the next session of university. The complainant said “they were rather confronting to deal with”.

6. [11]

   Once university resumed, the complainant said that he was “kind of just forced” into having some form of communication again with Mr Xu. Mr Xu begged for forgiveness and the complainant said that he felt “really guilty” and wanted to make things like they were in the previous year. Mr Xu approached the complainant and said he wanted to be friends and eventually the complainant agreed. Mr Xu started to give gifts to the complainant more often and more frequently. Mr Xu would buy him meals and a new phone. The complainant made it clear that the gifts were making him uncomfortable. The complainant described his relationship with Mr Xu throughout 2016 and 2017 as being “good friends” but he did not consider the relationship anything more.

7. [12]

   On 12 August 2017, Mr Xu asked the complainant to come to his unit in a street in North Wollongong to watch a show called “Daredevil” on Netflix. The complainant arrived at Mr Xu’s home at 10.30 in the morning. He was aware that Mr Xu had flatmates as he had run into them once or twice but did not see them when he entered the house. Once he arrived at the unit, he went into the living area and eventually moved into Mr Xu’s room. At this point, Mr Xu wanted the complainant to have a drink. The complainant did not accept it.

8. [13]

   The two men watched a couple of episodes of the show on Mr Xu’s computer while sitting next to each other on his bed. They followed this with lunch together at a nearby restaurant. After lunch, the complainant and Mr Xu went back to the unit. The complainant once again did not see anyone else in the unit and they returned to Mr Xu’s room. The complainant recalled that the room had a built-in wardrobe next to the door, a double bed with a window above it and a desk and chair at the end of the bed. Apart from the chair, there was nowhere else to sit in the room. They started to watch the show again on the computer. Mr Xu was very insistent that the complainant have a drink and eventually he relented and had one. The complainant said that it was not a particularly nice drink: it was like a mixture of a cocktail and wine. He said that the drink was “maybe half full” and the complainant confirmed that he drank it slowly.

9. [14]

   Later in the afternoon as the complainant was watching the show, he felt headaches which became intense. He did not know why this was happening as it was unusual for him to experience a headache from watching TV or from drinking. He said he had between one and two drinks that day. Upon consuming the drink, he said he noticed that Mr Xu was “starting to get a bit handsy”. He said that “he would start to like put his hands on my hands, like to hold my hands and stuff like that, which was very uncomfortable and I tried to stop him a lot of times”. The complainant said that he made it clear to Mr Xu that he did not want to hold his hand and he constantly pushed his hand away. Mr Xu would stop for a short period of time but then would try to do it again. Eventually, it got to the point where the complainant gave in and allowed Mr Xu to hold his hand. Mr Xu began to feed the complainant and put pieces of fruit or chocolate into his mouth. The complainant made it clear that he did not want to be fed. After a while Mr Xu stopped.

10. [15]

    In addition to the hand holding, Mr Xu then started to touch the complainant’s legs. This continued as the afternoon went on and Mr Xu became increasingly aggressive. As the night progressed, Mr Xu started to touch the complainant’s crotch on the outside of his pants. The complainant said that he pulled Mr Xu’s hand away and made it very clear that he did not want him to do that. At this stage, the complainant began to feel very severe headaches. Mr Xu continued to try to touch the complainant’s crotch and eventually forced his hands down the complainant’s pants. The complainant said, “he said that he wanted to give me a blow job at that stage and I – I said, ‘No’ over and over again, but he wouldn’t listen”. At that point, the complainant was lying there with Mr Xu’s hand in his underwear on his penis. The complainant said “please stop, no, please don’t” and tried to pull his hand away but felt powerless as he had one hand on his head from the serious headache.

11. [16]

    Mr Xu then pulled the complainant’s pants down to his ankles while he was lying on the bed. He proceeded to pull the complainant’s underwear off and gave him a “blow job”. Mr Xu put his mouth on his penis and moved his head up and down wanting the complainant to ejaculate into his mouth. The whole oral sex incident lasted at least an hour, but it was quite difficult for the complainant to tell exactly for how long. The complainant forced himself out of the room, as Mr Xu was holding the door closed by standing against it, got into his car and drove home.

12. [17]

    The complainant had a terrible headache and collapsed on the bed when he got home. He slept for a long time and ate something. After sleeping for a few hours, he started to feel better. He noted that when he got home, he still had an erection. This persisted. He first noticed this after drinking the cocktail but could not say exactly when. He did not tell anyone what had happened. In the days following the incident, the complainant avoided Mr Xu. However, he had some contact with him, talking about what had happened and telling him that he did not want it to happen again.

13. [18]

    Exhibit A at the trial was a 28-page document containing printed SMS messages exchanged between the complainant and Mr Xu. The complainant agreed that he returned to Mr Xu’s home on 19 August. Some text messages were exchanged between the men concerning the fact that Mr Xu wanted the complainant to return to his house despite the complainant saying that he did not want to. The complainant said the arrangement was not mutually made and he really did not want to go but “he kind of just went ahead as if there was some kind of arrangement that he had made”.

14. [19]

    The complainant identified exhibit B as a 64-page document containing messages exchanged between him and Mr Xu. He agreed that various Facebook exchanges between them took place on 19 August 2017.

15. [20]

    On 19 August 2017, the complainant said that he believed he may have driven Mr Xu somewhere in Fairy Meadow before going on to the complainant’s home. Whilst Mr Xu was at the complainant’s home, the complainant’s 17 year old brother and 20 year old sister were there. As it got later, Mr Xu became very insistent that the complainant come to his place. When they arrived at Mr Xu’s house they watched Daredevil in a similar set up to the previous weekend with the laptop computer on the desk at the end of the bed on which they both sat. The complainant was offered a drink, similar to the one offered the week before. The complainant said that he drank “maybe one glass”. The complainant said he thought they watched one or two episodes before ordering in food and maybe one or two after that. The complainant started to feel a headache like the previous time after the food and drink had been consumed. He said that he “started slowly sort of getting worse as the night went on”. The complainant’s headache became so severe that he needed to hold his head and he could not think straight. While this occurred, Mr Xu was touching the complainant’s leg and stomach. The complainant made attempts to try to stop him, which ended up with the complainant holding Mr Xu’s hands down because he would not stop trying to reach for his leg or stomach. Mr Xu tried to feel the complainant’s crotch and asked if he could give the complainant a blow job again. The complainant said “no”.

16. [21]

    Mr Xu proceeded to pull the complainant’s pants down while he was lying on the bed. The complainant was motionless on the bed as Mr Xu unbuttoned his shirt. Mr Xu removed the complainant’s underwear exposing his genitalia. Mr Xu started giving the complainant a “blow job”. As this was happening the complainant was saying “No, please, don’t do that”. Mr Xu did not stop and wanted the complainant “to come in his mouth”. The complainant did not ejaculate. At one point Mr Xu took lube from his drawer and started applying it to the complainant’s penis. Mr Xu then proceeded to take his pants off and tried to insert the complainant’s penis into his anus. The complainant begged Mr Xu to stop. After an attempt, Mr Xu gave up and instead gave the complainant a “hand job”. This went on for “quite a while”. Afterwards, the complainant grabbed his pants and shirt and tried to leave but Mr Xu stopped him. Mr Xu wanted to talk. The complainant explained that he was not interested in him at all in a sexual way.

17. [22]

    It was still 19 August when the complainant arrived home. He agreed there was a message later that night after he got home from Mr Xu saying that he may want to wash the lube off. The complainant agreed that he saw his mother that night whilst he was at home. He agreed Mr Xu was sending long chains of messages to him throughout the evening.

18. [23]

    The complainant said that he believed the next time he saw Mr Xu after 19 August was at university. They sat on opposite sides of the room. Mr Xu then got up from where he was sitting and sat directly next to the complainant. The complainant said that “in the middle of the class he started touching my leg and I was trying to force his arm away sort of trying to be discreet about it”. There were around 12 to 15 people in the classroom.

19. [24]

    After class, the complainant talked to Mr Xu about the events of that weekend, how he did not want to pursue a relationship and was definitely not sexually attracted to him. Mr Xu was very upset as a result of the conversation. Later that evening, the complainant received messages from Mr Xu about how he was going to get drunk and would not care if a car hit him. The complainant confirmed that Mr Xu tried to make contact with him via telephone by leaving a very long chain of mixed calls and messages. The complainant did not reply.

20. [25]

    The complainant spoke to his mother about what had occurred with Mr Xu and showed her the messages he was receiving at the time. He told his mother “a little bit” about what happened but not everything because he said that he was too embarrassed. He spoke to his mother about the second event on 19 August and then later about the first event on 12 August. After this conversation, the complainant and his mother talked to his university counsellor about what happened and he was referred to a triage officer at the university. He was referred to a trauma counselling service. The complainant also spoke to police.

21. [26]

    The complainant confirmed that Mr Xu turned up at his house without invitation the day after they spoke at university. Mr Xu sent messages saying that he was coming to the house and was already on transport. When Mr Xu arrived at the complainant’s house, the complainant stayed inside whilst his mother and her partner at the time went out to confront Mr Xu.

22. [27]

    The complainant spoke to his friend HK at some stage about what had happened. They went to get pizza and they talked about Mr Xu without going into details. Later, HK spoke to the complainant’s mother about some of the things that happened. The complainant and HK talked about the events in detail after that. He told HK “that a blow job occurred” and “it was not consensual”. He told him about having his drink, about having a rather intense headache, and about being touched. He did not tell HK every detail, such as when Mr Xu attempted to insert his penis in his anus.

23. [28]

    After a time, the complainant discovered that all of his Facebook messages from that time had been deleted. He observed an unknown device was logged into his account, a Sony Xperia, which he immediately removed. He had never owned a Sony Xperia and confirmed that he had given Mr Xu his password to his Facebook messenger profile.

Ground 1

1. [29]

   Mr Xu acknowledged that he bore a heavy onus in demonstrating that the failure to call good character evidence of any kind was both a material irregularity that was incapable of rational explanation as a discretionary forensic judgment of trial counsel and that there was a significant possibility that it affected the outcome of the trial.

2. [30]

   At the time of the trial, Mr Xu had no prior convictions. It was common ground at the sentencing proceedings that he should have the benefit of prior good character. The trial judge was not made aware of Mr Xu’s total lack of criminal antecedents until after the jury returned its verdicts. The jury was never made aware of Mr Xu’s prior good character in any way, whether by evidence, counsel’s address or direction.

3. [31]

   In order for this ground of appeal to succeed, Mr Xu must satisfy the test propounded by McHugh J in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46:

4. [32]

   This formulation has been applied in this Court: see, for example, Matthews v R [2013] NSWCCA 187.

5. [33]

   In Nudd v The Queen (2006) 225 ALR 161; [2006] HCA 9, the High Court rejected the appellant’s case that his trial counsel’s incompetence resulted in a miscarriage of justice. The High Court considered that the appellant’s complaint that his counsel did not call him to give evidence at the trial did not bring about a miscarriage of justice as it was well open to competent counsel either to call or not call the appellant. Gleeson CJ said this:

6. [34]

   The potential significance of an accused person’s prior good character was emphasised by Hayne J in Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32:

7. [35]

   In the present case there was no obvious or apparent legitimate forensic purpose not to adduce evidence of Mr Xu’s good character. The relevant police witness who was called could have been cross-examined without any risk of an answer that was adverse to the interests of Mr Xu. An agreement about the issue could have been reached. Mr Xu was not the only available source of the information so the decision not to call him as a witness at his trial is entirely neutral in this context. The material in this Court indicates that defence counsel had intended to raise the issue but failed to do so. That must have been a simple oversight. In short, Mr Xu had everything to gain and nothing to lose: there was no apparent forensic advantage, and every forensic disadvantage, in counsel’s failure to raise Mr Xu’s good character.

8. [36]

   I am also of the opinion that the evidence of Mr Xu’s good character had the significant potential to alter the outcome of the proceedings. This is for a number of reasons.

9. [37]

   First, the issue is notoriously important in cases of serious sexual assault which turn upon word on word factual disputes between the complainant and the accused. This is so even in cases, such as the present, where Mr Xu did not give evidence but where his response to the Crown case would have become clearly evident from the terms of the cross-examination of the complainant by his counsel. The jury would have been given the standard good character direction in circumstances where an accused person does not give evidence and would have been expected to follow such a direction.

10. [38]

    Secondly, the Crown’s case at Mr Xu’s trial was one that depended upon an acceptance of the complainant and by implication a rejection of his denials of the version contended for by Mr Xu. There was in such circumstances a real possibility that even the slightest good character evidence could have been critical to the outcome of the trial having regard to the anticipated direction from the trial judge that the jury could use evidence of Mr Xu’s good character, and his total lack of any prior criminal convictions, to assess the likelihood that he had repeatedly sexually assaulted the complainant.

11. [39]

    Thirdly, the significance of good character evidence had the potential to achieve importance in inverse proportion to the strength of the crown case: the weaker the Crown case, the greater is the likely impact of Mr Xu’s good character. In the present circumstances, the Crown case could be described in any number of ways, but in no way could it be described as strong. This is not a situation where the Crown case was so overwhelming or otherwise of such strength that the outcome of the trial was unlikely to be affected by a combination of the evidence of Mr Xu’s good character and an associated direction from the trial judge. It is instructive to examine this point in some little detail.

12. [40]

    During his evidence-in-chief, the complainant failed to give any account whatsoever in relation to count 3. As the Crown prosecutor noted in submissions relating to whether there should be a directed verdict of acquittal for that count also, it was only in cross-examination that the complainant gave any evidence that could be said to relate to count 3, with the allegation changing from a skin-on-skin touching of the complainant’s penis (as per the Crown opening) to a touching that was over his clothes. Indeed, of the decision about whether also to direct a verdict on count 3, the learned trial judge said, “I don’t find it an easy matter but I think on balance I should allow the count to stay on the indictment”.

13. [41]

    The Crown case did not include any overt admissions in direct response to the charged allegations. Mr Xu did not make admissions in a police interview, nor was he covertly recorded doing so in a prearranged telephone conversation with the complainant. On the contrary, there was clear evidence that Mr Xu felt rejected by the fact that, after both alleged incidents, it was made clear to him that there was no prospect of a romantic relationship with the complainant. A jury would be entitled to consider how such a reaction could be reconciled with proof to the criminal standard that Mr Xu knew the complainant was not consenting to the sexual acts at the time they occurred.

14. [42]

    The circumstances in which the initial complaint was made also provided a basis for Mr Xu to argue that there was a reasonable possibility that the complainant had a motive to fabricate the allegations. It was the discovery of the “lube message” by the complainant’s mother that was the catalyst of the complaint. Further, the escalation of the complaint to a university counsellor, which then led to police involvement, was clearly influenced by the complainant’s mother. One reasonable possibility on the evidence is that, assuming Mr Xu’s assertion that the sexual encounters were consensual, and noting the evidence that the complainant had not discussed his sexuality with his mother, it is highly likely that when confronted by her with evidence of a sexual encounter with Mr Xu, he would be disinclined to admit its true nature. A strong sense of embarrassment was the complainant’s admitted reason for not disclosing the full extent of the sexual acts to her. The complainant’s mother would appear instantly to have formed the view that the message relating to washing off lube was conclusive of a sexual assault having occurred and provides a useful context for assessing the possibility that the complainant might have felt compelled to fabricate a complaint of sexual assault in the circumstances.

15. [43]

    Moreover, the fact that the message was even sent in the terms that it was is arguably consistent with a consensual sexual encounter. It is also arguably inconsistent with the complainant’s evidence that Mr Xu had no regard for his protestations about what was occurring. Mr Xu’s apparent concern for the comfort of the complainant, as evidenced by the terms of the message, is arguably inconsistent with non-consensual sex. The Crown did not suggest that the messages were a confected attempt to cover up the truth or deliberately to create and convey a false impression.

16. [44]

    One significantly curious aspect of this case is that the complainant voluntarily returned to Mr Xu’s room the following week. Not merely did he return but he engaged in relevantly identical sexual activity. If he had in fact been the victim of a genuine non-consensual assault, it is difficult to understand why he should or would have done so. That is not to say that the fact that a sexual assault complainant returns to the scene of an alleged sexual assault always leads to this conclusion. In my opinion, it does so in the particular circumstances of this case.

17. [45]

    Details of the 12 August incident, as described by the complainant himself, also appear to raise considerable doubt about the precise nature of the sexual interaction between the two men on that day. Possibly the most striking aspect of the complainant’s evidence in this respect, which emerged during his cross-examination, was that he was voluntarily viewing pornography on a mobile phone whilst Mr Xu was performing fellatio on him. Nor did the complainant suggest that this somewhat extraordinary behaviour, apparently simultaneously performed during a serious non-consensual sexual assault upon him, was other than entirely voluntary. Indeed, in re-examination the complainant provided the following description of what occurred:

18. [46]

    Furthermore, the complainant’s unlikely assertion that the act of fellatio carried out by Mr Xu went on for what “felt like at least an hour” is a further reason to cast doubt on his reliability as an historian.

19. [47]

    Following what can on the complainant’s evidence only be described as a prolonged sexual assault in the face of his repeated and express verbal protestations on 12 August 2017, the events leading up to what occurred on the evening of 19 August also require examination. After Mr Xu spent the day, along with the complainant and various members of his family, at the complainant’s house, he then agreed to go back to Mr Xu’s house. He was asked the following in evidence-in-chief:

20. [48]

    As a matter of common sense, this somewhat anodyne interaction between the men concerning a proposal to return to the location where Mr Xu had allegedly sexually assaulted the complainant one week before, and the complainant’s uncoloured agreement with it, seem difficult to explain.

21. [49]

    In my view, all of these matters combine to assist the conclusion that the Crown case was not strong. It follows that the significance of a failure to raise good character in the context of a dispute concerning the true nature of several sexual acts performed by Mr Xu upon the complainant is correspondingly elevated. The result in all of the circumstances was a substantial miscarriage of justice.

22. [50]

    What should follow from this conclusion is referred to later in these reasons.

Ground 2

1. [51]

   The test to be applied in an appeal contending that jury verdicts of guilty are unreasonable and cannot be supported having regard to the evidence and acquittals on other counts was recently outlined by Hoeben CJ at CL in CR v R [2017] NSWCCA 29 as follows:

2. [52]

   As I have already indicated, Mr Xu was found guilty of both offences that are alleged to have been committed on 12 August 2017 but acquitted of all of the offences that are alleged to have been committed one week later. (The verdict by direction can be disregarded for present purposes).

3. [53]

   Perhaps the clearest basis for concluding that the guilty verdicts on counts 1 and 2 are unreasonable is to be found in the fact that the complainant voluntarily returned to Mr Xu’s premises on 19 August 2019, when on his own account, which the jury must have accepted, he had been sexually assaulted on the earlier occasion. I accept that in this area of discourse, it is necessary, where verdicts appear to be inconsistent, to explain the acquittals rather than the convictions. Presumably the Crown contends, either, that the events on 19 August 2019 must have been consensual because there is no other reason why the complainant could have considered returning to Mr Xu’s room, or that Mr Xu could reasonably have believed that the complainant consented to what occurred on August 19 given that the complainant voluntarily returned to Mr Xu’s home.

4. [54]

   The difficulty with both explanations in this case, however, is that on the complainant’s own account of the events of 19 August, he was persistently and consistently telling Mr Xu that he did not want to participate in what Mr Xu was doing. That evidence was effectively identical with respect to 12 August and 19 August. There was in such circumstances no rational basis for the jury to differentiate between those protestations on either day. If he was not consenting on the first occasion, the jury could not logically have reasoned that he was consenting on the second occasion, or that Mr Xu reasonably believed that the complainant was consenting. Whatever view one might have of those criticisms, the rejection of the complainant’s evidence with respect to 19 August must have caused them to have a reasonable doubt about the evidence given by him with respect to 12 August.

5. [55]

   In my view, the jury must in all of these very circumstances have entertained a reasonable doubt about what is said to have occurred on 12 August 2019. If the complainant was genuinely criminally assaulted on that day, it defies common sense, which juries are universally exhorted to apply to their deliberations, that the complainant would have disregarded or ignored what had occurred and nevertheless had returned to become involved in similar activity with Mr Xu to which the jury concluded, either, he must have consented or that Mr Xu reasonably believed he consented to.

6. [56]

   Significantly, there is in my view an irreconcilable tension, which must have been apparent to the jury, between the complainant’s later protestations that he was constantly telling Mr Xu that he was not interested in doing what happened on both occasions and that on both occasions he wanted Mr Xu to stop and yet he returned to Mr Xu’s room on the following weekend, sat on his bed to watch “Daredevil” and consume alcohol. Some of the evidence given by the complainant in his evidence-in-chief powerfully emphasises this tension:

7. [57]

   In my view the jury must have had a reasonable doubt that the complainant had been sexually assaulted on 12 August if he rendered himself liable, on his account, to a repetition of that criminal conduct, but was in effect scared it might happen again but was prepared to take the risk. It must have appeared to the jury to be inherently improbable that the complainant would do so, hoping that he would not once again be sexually assaulted by Mr Xu. The jury must have entertained a reasonable doubt about the complainant’s reliability or about his evidence concerning the events of 12 August in these circumstances. That is especially so having regard to the fact that the jury must not, or could not, have believed the complainant’s account of the events on 19 August.

8. [58]

   There is another reason why the jury must have entertained a reasonable doubt about the complainant’s evidence of what transpired on 12 August. The following evidence, given by the complainant in cross-examination, should be noted in this context:

9. [59]

   The question is not whether the jury must have had a reasonable doubt that the complainant was viewing heterosexual pornography on his phone during the period that Mr Xu was performing oral sex upon him. Indeed, that evidence flowed directly from questions put to him by defence counsel, and which the complainant had not previously mentioned. The significant point is that the jury must, in my opinion, have had a reasonable doubt that the complainant was in those particular circumstances not consenting to that act or that Mr Xu knew that he was not consenting if he was not.

10. [60]

    Furthermore, the burden of the complainant’s evidence, with respect to both 12 August and 19 August but for presently relevant purposes limited to the former, was that he was helpless to resist the insistent attitude and actions of Mr Xu that a sexual act or sexual acts should occur. That avowed inability stands in marked contrast to the complainant’s ability to leave the premises after this had occurred. The following passage of his cross-examination is instructive:

11. [61]

    This was at approximately 5.30pm. Although the complainant could not recall the exact time, he conceded that it was then just getting dark. By that calculation, the complainant and Mr Xu had spent approximately seven hours together on 12 August 2016. By the time the complainant determined to leave the room with Mr Xu he had no difficulty summoning the necessary resolve.

12. [62]

    Notwithstanding what the complainant says occurred, and despite his evidence that the sexual interaction with Mr Xu was non-consensual, the complainant and Mr Xu continued between that day and 19 August to exchange messages on Facebook. They had lunch together on 15 August. They corresponded about an online game they were playing.

13. [63]

    All of these matters combine in my opinion to lead inevitably to the conclusion that the jury verdicts on counts 1 and 2 were unreasonable. I do not think that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that Mr Xu was guilty on these counts.

Ground 3

1. [64]

   This ground of appeal addresses the fact that during the trial certain evidence was placed before the jury that was unrelated to the Crown case but which had the significant potential to raise in the minds of the jury the possibility that Mr Xu had somehow administered a stupefying or intoxicating substance to the complainant on 12 August and that the complainant continued on that occasion to labour under its effect. From as early as the Crown’s opening to the jury, the trial was marked by the persistent implication that the complainant had unknowingly ingested some kind of drug or other stupefying substance that had been surreptitiously administered by Mr Xu. Whilst at one stage during the complainant’s evidence the jury were told by the trial judge that, in effect, deliberate drugging by Mr Xu was not part of the Crown case, the complainant’s “unexplained” persistent erection and headache may well have left the jury to question whether any innocent explanation for this was available. Counsel for Mr Xu took no issue with respect to this matter.

2. [65]

   This problem first arose when the Crown opened the case to the jury in terms that included the following:

3. [66]

   The complainant described what he asserts to be an abnormal and severe headache as the primary explanation for his inability to resist Mr Xu’s allegedly non-consensual physical advances comprising counts 1 and 2 in these terms:

4. [67]

   The complainant’s evidence continued on this theme of seemingly inexplicable inebriation, linking it directly to the alcoholic drink or cocktail that Mr Xu served him. For example:

5. [68]

   During his cross-examination, the complainant drew the jury’s attention to his assertions that there was some kind of unknown substance that caused him to have a prolonged erection:

6. [69]

   All of this material was heard by the jury without comment or direction from his Honour until the following brief exchange took place the next day in the absence of the jury:

7. [70]

   This exchange between his Honour and the Crown prosecutor was preceded by the following evidence from the complainant, this time in relation to the 19 August incident, as to the reoccurrence of a headache:

8. [71]

   Counsel for Mr Xu did not raise any concerns about this matter or otherwise request that his Honour direct the jury about it at the time any of this evidence was given. Indeed, the first time that the jury were given any kind of direction in relation to it was not until the third day of the trial when, towards the end of the cross-examination of the complainant, the following exchange about his complaint to HK occurred, with intervention from the learned trial judge:

9. [72]

   It is true that his Honour admonished the jury to put from their minds any suggestion that Mr Xu had drugged the complainant. The strength of that admonition becomes questionable having regard to the fact that, on the evidence in the Crown case, there was no alternative rational explanation for the constellation of physical symptoms that the complainant asserted he experienced, particularly in relation to the 12 August incident.

10. [73]

    On the other hand, the Crown closing address was limited to the question of the complainant’s asserted headache. There is no reference to the curiously persistent erection. Unlike the Crown opening, the final submissions do not speak to the issue of the complainant’s assertion of a highly abnormal erection or disavow any reliance on the surreptitious administration of a substance. The Crown address includes a submission that characterises the headache as being, “[j]ust the effect that the alcohol is having on him”. However, as a matter of common sense, the complainant’s equally adamant description in relation to the 12 August incident of an erection that appears to have lasted for several hours cannot be explained by what on any view was the consumption of only a moderate amount of alcohol.

11. [74]

    The burden of Mr Xu’s complaint is that the evidence should never have been led and that the prospect of a fair trial was lost once it had been. His Honour should not have been asked to direct the jury about it but should have been asked to discharge them.

12. [75]

    In my opinion, the reception of this evidence occasioned a miscarriage of justice. It was compounded in this context by the failure of trial counsel to raise Mr Xu’s good character to which evidence of Mr Xu’s unblemished antecedents were potentially critical.

Ground 4

1. [76]

   The complainant’s mother gave the following evidence-in-chief:

2. [77]

   She was later cross-examined about the same subject matter as follows:

3. [78]

   Mr Xu now complains that this evidence was inadmissible as opinion evidence in which the complainant’s mother illegitimately expresses a belief that her son had been sexually assaulted and that it should have been rejected. While that contention may have some prima facie force, it seems clear that no objection was taken to it and that counsel for Mr Xu would on the contrary appear to have essentially embraced it in the wider context of providing an explanation for why the complaints of sexual assault were made at all. Mr Xu’s response to the Crown case in this area was that the complainant was avoiding conflict with his mother concerning her possible reaction to any suggestion that he might have been gay and in effect acquiesced in her assumption that the sexual activity must have been non-consensual. The charges against Mr Xu were said to be a direct consequence of that set of circumstances. However, it seems reasonably apparent that trial counsel took that approach as an informed forensic decision and in my view Rule 4 is a complete answer to any reliance upon the receipt of the evidence at the trial as a ground of appeal in this Court.

Conclusion

1. [79]

   As a result of a combination of the matters dealt with in the first three grounds of appeal, at the very least the trial miscarried. My conclusion that Ground 2 is made out was alone sufficient to lead to an acquittal. However, even if Mr Xu was on another view only entitled to a retrial on counts 1 and 2, there is no prospect that he could receive a fair trial. That is for the obvious reason that his acquittal on the counts relating to the events on 19 August would necessarily no longer be before any jury reconsidering his guilt on counts related to the events of 12 August. The fact that the complainant returned to Mr Xu’s room on 19 August was a critical aspect of Mr Xu’s response to the Crown case against him with respect to the events one week earlier and it would be unfair to put him on his trial again if that context were absent.

2. [80]

   N ADAMS J: On 28 June 2019, I agreed with Bathurst CJ and Harrison J that the appellant’s convictions on Counts 1 and 2 should be quashed and verdicts of acquittal entered on both counts. I have since had the advantage of reading the reserved reasons of Harrison J in draft for making those orders at that time. Although Harrison J’s judgment largely reflects the reasons that I joined in the orders of the court on 28 June 2019, I wish to clarify my reasons for agreeing that no new trial should be ordered in this matter.

3. [81]

   I would uphold Grounds 1 and 3 for the reasons explained by Harrison J. The trial miscarried both as a result of the failure to adduce evidence of the appellant’s good character as well as the admission of evidence suggesting that the appellant had drugged the complainant. As for Ground 4, I accept that there is a conceivable tactical reason to explain why the appellant’s counsel did not object to the complainant’s mother’s opinion evidence (formed after reading the text messages between the appellant and her son) that her son had been sexually assaulted.

4. [82]

   As for the appellant’s contention that the verdicts of guilty on Counts 1 and 2 were unreasonable (Ground 2), I agree that this ground should be upheld as well but for slightly different reasons than those provided by Harrison J. The first basis upon which the appellant contended that the verdicts were unreasonable was that they were inconsistent with the acquittals on Counts 3, 4, 5 and 6 (putting the directed verdict on Count 7 to one side). As the High Court stated in MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 366 (footnotes omitted):

5. [83]

   In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] the High Court observed the question of unreasonable verdicts in the context of multiple sexual assault counts on an indictment. At [34] their Honours observed the following:

6. [84]

   It has been held in this court that, when looking at whether verdicts are inconsistent, the court is to look at a basis for the acquittals, rather than the convictions. As Simpson J (as her Honour then was) stated in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128]:

7. [85]

   It is with these principles in mind that I considered whether the verdicts on Counts 1 and 2 are unreasonable on the basis that they are inconsistent.

8. [86]

   It was accepted by the appellant that there were conceivable bases for differentiating between the counts. The directed verdict on Count 7 may have affected the complainant’s credibility on all of the counts in relation to the 19 August 2017 incident, likewise the issues with Count 3. The complainant’s failure to complain of the attempted anal penetration (Count 5) on the second occasion (there was no allegation of anal penetration on the first visit) may have also affected the complainant’s credibility in relation to all of the counts arising from the second incident.

9. [87]

   The Crown submitted that it was possible to reconcile the verdicts and the acquittals in a way which did not necessarily mean that the jury found the complainant to be untruthful. It was submitted that it was open to the jury to accept the complainant’s explanation for returning to the appellant’s bedroom and be satisfied beyond reasonable doubt that the complainant was not consenting on the second occasion but be left with a reasonable doubt on the basis that the appellant might have believed on 19 August 2017 that the complaint was consenting, even though he was not. That is, it is possible that the jury approached its task in the manner described by the High Court in the italicised passage in MFA v the Queen extracted above at [83].

10. [88]

    Although I am satisfied that there is an arguable basis for differentiating the mixed verdicts in this matter, I am unable to come to the conclusion that the jury could have acquitted the appellant on all of the counts arising from the second incident without having doubts as to the complainant’s credibility. That leads me to consider the alternative basis upon which it was contended that the verdicts were unreasonable. The relevant principles are well known: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. As the High Court observed in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] (footnotes omitted):

11. [89]

    Even accepting that there were factors that can be identified to explain the acquittals (as I have identified above), the fact remains that the complainant’s evidence was that on the second occasion, as with on the first, he said “no” repeatedly. In fact, the complainant’s evidence was that his conduct (in rebuffing the appellant) and the appellant’s conduct (in persisting) was relevantly identical on both occasions. The complainant’s evidence was that on the second occasion he said “no” to the appellant as well as “[n]o, please don’t do that” and that he begged the applicant to stop attempting anal intercourse. If that evidence was accepted by the jury, it is difficult to see how the appellant could not have realised that the complainant was not consenting. If that evidence was accepted, the acquittals cannot be explained by, for example, the fact that the complainant returned to the appellant’s residence after the events on 12 August 2017.

12. [90]

    For my part, I am satisfied that the verdicts on Counts 1 and 2 are unreasonable. Having assessed all of the evidence, I am satisfied that the jury ought to have entertained a reasonable doubt as to the appellant’s guilt on Counts 1 and 2. This conclusion is based on a number of separate difficulties with the Crown case, some of which are identified by Harrison J. One such difficulty is the complainant’s evidence in relation to Count 2 that he was fellated by the appellant for “what seemed like an hour” and, as emerged during cross-examination, whilst this was happening the complainant was watching heterosexual pornography on a mobile telephone.

13. [91]

    At [44], [48], [53], [55], [56] and [57] of his judgment, Harrison J refers to the complainant’s evidence that, after being sexually assaulted by the appellant on 12 August 2019, he nonetheless returned to the appellant’s home a week later. This aspect of the case is described by his Honour in those paragraphs as “significantly curious”, “difficult to understand,” “difficult to explain”, one that “defies common sense” and posing an “irreconcilable tension” with what had happened a week before. It is to be noted that his Honour is careful to make clear at [44] that the fact that a sexual assault complainant returns to the scene of an alleged sexual assault does not always give rise to these conclusions, only that it does so in this case.

14. [92]

    Although I have serious doubts about many aspects of the Crown case, I am respectfully unable to agree with his Honour that the complainant’s return to the appellant’s home “defies common sense” in this case. It provided context to the second set of charges but I do not consider myself to be in a position to make any generalisations about how any particular alleged victim of a sexual assault, in this case a male, should behave in a particular situation. As stated above, my doubts arise in a different way.

15. [93]

    Significantly, even if I had not come to the conclusion that the convictions on Counts 1 and 2 were unreasonable, there are discretionary considerations present relevant to the court’s power to order a retrial under s 8(1) of the Criminal Appeal Act 1912 (NSW) following the success on Grounds 1 and 2. Not only has the appellant already served the entirety of his non-parole period, I am not satisfied he could receive a fair retrial because the underlying facts would have to be artificially contracted at a retrial to remove the second incident (which resulted in acquittals). It was the second incident which gave rise to complaint being made when the complainant’s mother read the text about the use of lubricant and presumed there had been a sexual assault. Although it is to be accepted that the discretionary decision whether to order a new trial should ordinarily be left to the Director of Public Prosecutions, I am satisfied that, even if Ground 2 was not upheld, the Court’s broad power in s 8(1) not to order a re-trial ought be exercised in this matter.

16. [94]

    It was on these alternative bases that I joined in the orders of the court on 28 June 2019.