Sakar v R

1. [1]

   SIMPSON AJA: On 9 November 2022 the applicant was arraigned in the District Court on an indictment that contained four counts of offences against provisions of the Crimes Act 1900 (NSW). Count 1 was of an offence against s 61, common assault; counts 3 and 4 were of offences against s 61I, of sexual intercourse without consent. Count 2 was of an offence against s 37(1) which relevantly provides:

2. [2]

   The applicant entered a plea of not guilty to each count and a jury trial proceeded. On 21 November 2022 the jury returned verdicts of guilty to count 1 (common assault) and count 3 (the first count of sexual intercourse without consent) and verdicts of not guilty on counts 2 (the choking charge) and 4 (the second count of sexual intercourse without consent).

3. [3]

   The applicant now seeks leave to appeal against the convictions. He requires leave because no ground of appeal raises a question of law alone: Criminal Appeal Act 1912 (NSW), s 5(1)(a). The gravity of one of the offences of which he was convicted is sufficient, in my opinion, to warrant a grant of leave. I will henceforth refer to the applicant as the appellant.

4. [4]

   The appellant proposes two grounds of appeal. Ground 1 is that the verdicts of guilty are unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty returned in respect of counts 2 and 4. By ground 2 the appellant complains of a direction given to the jury by the trial judge. As no complaint was made of the direction at trial, leave is required to raise this ground: Supreme Court (Criminal Appeal) Rules r 4.15. The appellant accepts that this ground cannot succeed in this Court and is protective only. That is because a ground complaining of a direction in relatively identical terms was rejected in Lee v R [2023] NSWCCA 203. The only issue for present determination, therefore, is whether the convictions are unreasonable and cannot be supported having regard to the evidence. Determination of that issue requires that this Court make its own independent assessment of the evidence, while bearing in mind the advantage had by the jury in seeing and hearing the witnesses give their evidence.

Relevant statutory provisions

1. [5]

   It is necessary to say something about the nature of the offences of which the appellant was convicted. The first, common assault, is an offence against s 61 of the Crimes Act which provides as follows:

2. [6]

   An assault is an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence: R v Knight (1988) 35 A Crim R 314. An act which would otherwise constitute an assault will not do so if the Crown fails to prove, beyond reasonable doubt, that the act was done without lawful excuse.

3. [7]

   The second offence, the offence of sexual intercourse without consent, is an offence against s 61I of the Crimes Act which provides:

4. [8]

   It is therefore necessary that the Crown establish, beyond reasonable doubt, that:

5. [9]

   At the time of the events in question in this case, s 61I was located in Div 10 of Pt 3 of the Crimes Act. “Sexual intercourse” was defined in s 61HA, relevantly, to mean:

6. [10]

   Section 61HE, located in Subdiv 1 of Div 10, explained the concept of consent in sexual offences. Relevant for present purposes, subss (2), (3) and (4) of s 61HE provided:

7. [11]

   Much of Subdiv 1 (including s 61HE) has been repealed and replaced: Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW). The relevant provisions for present purposes are those that pre-dated the repeal and replacement.

8. [12]

   It is now necessary to set out, in some detail, the evidence in the trial.

The Crown case

1. [13]

   A brief synopsis of the Crown case is as follows. All offences were alleged to have been committed against the same complainant, on a single occasion, in the early hours of 8 September 2019. At that time the complainant was 18 years of age and living in an inner Sydney suburb. A same-sex relationship in which she had been involved had recently terminated. The complainant was in a somewhat emotionally fragile state.

2. [14]

   In the late evening of 7 September 2019, the complainant, intoxicated, travelled by public transport to Darling Harbour, where she encountered the appellant (whom she did not previously know) and accompanied him to a nearby casino. They each consumed several alcoholic drinks. The appellant then drove the complainant to her home which, contrary to the complainant’s wishes, the appellant entered in order to use the bathroom. He then assaulted her by slapping her a number of times on the face, intentionally choked her, and committed two acts of sexual intercourse without her consent, one by penile/vaginal penetration, the other by penile/anal penetration, knowing in each case, that the complainant did not consent to the sexual intercourse.

The trial

1. [15]

   Evidence in the Crown case was primarily that of the complainant, supplemented by the evidence of other witnesses. What immediately follows is an account of the prosecution’s evidence.

2. [16]

   The complainant’s evidence was that, on the evening of 7 September 2019, (a Saturday) she was at home alone. She consumed a whole bottle of wine before travelling by public transport to Darling Harbour, arriving between 10.30 and 11 pm. She purchased a frappe from a McDonalds outlet and sat on a step. The appellant sat down beside her and they struck up a conversation before going together to a nearby casino where they consumed several alcoholic drinks. While at the casino the complainant asked for the appellant’s phone number which he gave her and which she entered into her phone. After the first drink the appellant and the complainant moved to an outside area of the casino, where the appellant began to kiss the complainant in what she described as a “really aggressive way”, about which she complained.

3. [17]

   After some more drinks, the complainant decided to go home. The appellant volunteered to drive her. In the car the complainant kissed the appellant; he initiated some sexual activity, which the complainant resisted because they were in public. The complainant said that she was then “very drunk”.

4. [18]

   When they arrived at the complainant’s address, the appellant wanted to use the bathroom. The complainant was reluctant to allow him to come in, because, she said, the house was “too messy”. Nevertheless, at the appellant’s insistence, she allowed him in, telling him to be quick and then leave. The appellant used the bathroom, and the complainant lay on her bed, fully clothed. The appellant joined her and suggested that they cuddle, to which the complainant agreed.

5. [19]

   The appellant then suggested sexual intercourse. The complainant asked if he had a condom, because she was concerned about possible pregnancy. He said he did not, but that he could avoid impregnating her. The complainant declined penile-vaginal sexual intercourse, but suggested oral sex. She said she did this so that the appellant would go home. The complainant began to fellate the appellant and something of a confrontation occurred. The complainant again described the appellant’s conduct as “pretty aggressive”. (In cross-examination the complainant agreed that she had asked the appellant to teach her “how to give oral sex”, and that she had, in fact, performed oral sex on him while he lay on the bed.)

6. [20]

   According to the complainant, the appellant persisted in asking for penilevaginal sex, which the complainant refused. At some point (the complainant could not remember when) her clothes “came off”. The complainant said that she became very emotional and had a panic attack. No detail was given in evidence of the nature or the manifestation of the panic attack other than that the complainant was very emotional and was “very loud and crying a lot”, and telling the appellant to go home. At this time the complainant was lying on the bed, the appellant on top of her. The appellant slapped the complainant across the face and told her to calm down. The panic attack came to an end and the appellant continued to ask for sex, which the complainant continued to refuse. The appellant slapped the complainant across the face, “pretty hard”, more than 10 times. Slapping the complainant during the panic attack was the foundation for count 1 on the indictment, common assault, of which the appellant was convicted. No separate charge was brought with respect to the subsequent, repeated, slapping of which the complainant gave evidence.

7. [21]

   According to the complainant, during the course of these events the appellant put his hand around her throat and squeezed. The complainant was very afraid because the appellant was strong and she feared for her life. The appellant did this “on and off for a few minutes at a time”. This gave rise to count 2 on the indictment, (the choking charge), of which the appellant was acquitted. The complainant continued to refuse to engage in penile-vaginal intercourse with the appellant. The complainant’s account of what happened then is recorded in the transcript as follows:

8. [22]

   The complainant said that she then said “anything else”, and the appellant responded by saying “anal”. The complainant said that she made no reply to that:

9. [23]

   The complainant’s account of what next happened was:

10. [24]

    The complainant said that eventually the appellant withdrew his penis from her anus and said that he wanted to cuddle again. She said that she did so but was “really uncomfortable”. She wanted to put her clothes on but the appellant told her that he liked feeling her skin. She put her clothes on; the appellant removed them; she put her clothes back on.

11. [25]

    The complainant said that she felt “really grossed out”, was still drunk and very tired. It was about 4.00 am. She noticed that her phone was missing and asked the appellant to look for it, initially in the apartment with her, and then in his car, which he did. He retrieved the phone from his car and gave it to the complainant. The complainant told the appellant that she needed to work the next (ie later that) day and the appellant needed to leave, which he eventually did.

12. [26]

    The complainant then sent text messages to some friends. As the text messages are an important part of the appellant’s argument that the verdicts of guilty were unreasonable, the content of much of the messaging can be set out here. I will avoid identifying the recipients. I will reproduce the messages as they appear in printouts in the evidence.

13. [27]

    At 4.15 am the complainant texted her friend (her former partner, to whom I will refer only as “IE”), saying:

14. [28]

    At 4.16 am the complainant texted a (male) friend, AW, saying:

15. [29]

    At 8.11 am IE replied to the 4.15 am message from the complainant, asking what happened, to which the complainant replied (at 8.22 am):

16. [30]

    The communications with IE continued. The complainant said that she was scared. IE offered to come and go to the chemist to get “the stuff” [by which she meant “a morning after pill” – also referred to in the evidence as “Plan B”] and to come and help clean the house. There were then some exchanges it is not necessary to record, and the complainant said:

17. [31]

    IE suggested “take him to court For at least physical assault” but the complainant said she did not want to do that because she did not want to tell her family.

18. [32]

    Later in the morning IE and her then current partner VR came to the complainant’s house and took her to a pharmacy where they obtained a “morning after pill”. The complainant said that she was unable to speak to the pharmacist because she would have had to explain why she needed it. The three then went to a McDonalds to “talk about it a bit more”. The complainant said that she was then “really emotional”. She said that she told IE and VR of the events of the previous evening and early morning.

19. [33]

    The text messaging with AW continued later in the day. At 4.30 pm the complainant asked if she could text to AW an account of what had happened instead of talking because:

20. [34]

    The complainant then sent this account:

21. [35]

    At what appears to have been 2.00 am on 11 September 2019 the complainant texted another friend, OC, with whom she had not had contact for 9 months, due to a fight they had had. After some preliminaries the complainant gave a lengthy account of what she said had occurred early on 8 September. This was:

22. [36]

    The complainant did not then go to the police.

23. [37]

    The complainant said that, for about a month after 8 September, she kept seeing somebody outside the window and that OC suggested that it was a hallucination due to post-traumatic stress disorder. She said that on 1 October, while watching a show on her laptop, and looking up at her window, she saw the appellant “with a cap on looking down at me”. She called OC, who in turn called police. Police attended and the complainant told them of the events of 78 September.

24. [38]

    It is convenient at this point to interrupt the narrative of the complainant’s evidence to observe what the police officer, Senior Constable Michelle Bennett, recorded in her notebook. It was as follows:

25. [39]

    The complainant then returned to live with her parents in Queensland. On 14 September 2020 she attended a police station in Queensland. She twice unsuccessfully attempted to call the number the appellant had given her at the casino and sent a text message. On 15 September 2020 the complainant made a call to the appellant, which he returned at 12.24 am the following morning. The call has been referred to as the “pretext call”. The conversation was recorded and a transcript, which was not in issue, was made. The conversation, and therefore the transcript, are lengthy. It is necessary to set out significant parts of the conversation, as recorded.

26. [40]

    The complainant began by telling the appellant that she needed to talk “like, you low key like changed the course of my whole life …”. She went on to say:

27. [41]

    It is fair to observe that at this point the appellant appears somewhat mystified; however he noted that they had exchanged phone numbers earlier on, and said that he thought that they:

28. [42]

    The complainant then referred to the circumstances of her being at Darling Harbour and said:

29. [43]

    The following is taken from the transcript of the conversation:

30. [44]

    Later, the appellant said that he felt that they had had a great time and that he was “still a little bit upset” that he had never heard from the complainant again after she had asked for his number. He said again that he thought they had “really had a good connection and everything and I thought that we would hang out again. I was looking forward to it.”

31. [45]

    The complainant referred to the appellant’s slapping her, to which the appellant replied:

32. [46]

    The following then ensued:

33. [47]

    There was then some conversation about the person the complainant had seen (or believed she had seen) outside her window on October 1. The conversation then returned to the events of 8 September. The appellant maintained that the complainant had agreed to the sexual intercourse; the complainant maintained that she had not. The following is recorded:

34. [48]

    The conversation concluded with the complainant telling the appellant that he was “a fucking rapist” and “you fucking raped me” and the appellant maintaining that they had not even really had sex, “even though you gave permission”.

35. [49]

    Evidence was given in the Crown case by IE, AW, OC and VR.

36. [50]

    IE confirmed that the complainant had rung her on the morning of 8 September. She said that the complainant sounded “very distressed and upset and was speaking shakily, like she was about to cry”. She said:

37. [51]

    IE said that she and VR drove to the complainant’s home, where she (but not VR) went inside. She said that the complainant looked “distressed and disgruntled”. IE said that she wanted to get the complainant a “Plan B pill” and some food and comfort. They went to a pharmacy and afterwards to McDonalds where the complainant gave her an account of the events and said that what had happened was “forced upon her”. She said that at times the complainant’s voice was “very stern” and at others it was “very shaky”. In cross-examination IE agreed that the complainant appeared to be hungover.

38. [52]

    VR gave evidence that IE received a phone call from the complainant in which she [the complainant] “was really emotionally distraught”, so IE and VR travelled to the complainant’s home, and then to a pharmacy. VR said that at the pharmacy, the complainant “had a bit of a, like a break down, she was getting extremely upset and was speaking with [IE] and then [IE] went onto purchase it for her, because she was so distraught.”

39. [53]

    VR said that they went to McDonalds where the complainant “seemed really emotional and frantic, and she sort of dove into this story of events that happened, I think it was the night before.” VR said that, in giving an account of the events of the evening before, the complainant:

40. [54]

    VR gave an account of what she recalled the complainant had said (which she acknowledged was “from the best of my memory”), as follows:

41. [55]

    OC said that, after a lengthy period when she and the complainant had been out of touch, the complainant contacted her, she thought at about 11 pm on 7 September. She did not reply until later, and on 11 September had a quite lengthy conversation via Facebook Messenger. She also took phone calls from the complainant. She said that not long after 11 September she received a telephone call from the complainant in which she was “quite distressed” and “mentioned something about thinking there was potentially someone outside her house.”

42. [56]

    She said that the complainant in subsequent telephone calls was “quite distressed and upset” and mentioned one in particular where the complainant “couldn’t leave the hallway in her house”. OC said that, in late September, there were calls from the complainant when the complainant believed that someone was at her house. She said that she had a clear recollection of a telephone call of 1 October 2019 as a result of which OC telephoned police and urged the complainant to remain on the phone with her while she did so.

43. [57]

    OC said that, in that telephone call, the complainant told her that she thought somebody was outside her window, but added “it could just be a brain cocktail”. Senior Constable Bennett gave evidence that, at about 3.30 am on 1 October

44. [58]

    2019, she attended at the complainant’s address (presumably in response to OC’s call) and spoke to the complainant. She made notes of the conversation, which was a general description of what the complainant said were the events of 7 September and the early hours of 8 September.

45. [59]

    In cross-examination Senior Constable Bennett said that the complainant told her that she had seen a face looking in the lounge room window. Senior Constable Bennett formed the view, with the assistance of another police officer, that it would have been extremely difficult for anybody outside to look into the unit. Senior Constable Bennett said that the complainant told her that her perception might have been the result of hallucination.

46. [60]

    The officer in charge of the investigation, Detective Littlepage, gave evidence but it adds nothing worthy of note, other than confirmation that the appellant had no prior convictions in Australia. The evidence of AW was also of limited importance, other than confirmation of the content of the text message exchanges between AW and the complainant on 7 and 8 September 2019, and some details concerning AW’s view on the complainant’s previous relationship with IE.

47. [61]

    The appellant did not give evidence in the trial. He called a character witness who gave favourable evidence of his character. Otherwise the appellant’s response to the allegations was put to the jury via cross-examination of the complainant and the record of the telephone conversation of 15 September 2020, on which he placed considerable reliance (reliance he maintained on appeal). That response was, in essence, that such sexual activity as took place was consensual, but was less extensive than described by the complainant.

48. [62]

    Implicit in the cross-examination of the complainant was that, while the appellant accepted that some attempt at penile-vaginal intercourse had taken place, his contention was that he had been unable to sustain an erection and that, in any event, the complainant had (ultimately) willingly participated. The contention that he had been unable to sustain an erection was, no doubt, some attempt to question whether the Crown had proved the first element of a s 61I offence: ie that sexual intercourse had taken place. Bearing in mind that “sexual intercourse” was defined in s 61HA to mean “sexual correction occasioned by the penetration to any extent of the genitalia … of a female person …”, that would have been a difficult position to take, and it was not pursued with any vigour. The complainant did not accept either of the propositions put to her. She agreed that she had asked the appellant to “teach [her] how to do oral sex”. It was then put to the complainant that there had been a discussion about having penile-vaginal intercourse, to which she replied that the extent of the discussion was the appellant telling her that he wanted penilevaginal intercourse.

49. [63]

    Counsel cross-examining appeared to accept that the complainant had initially refused to participate in penile-vaginal sexual intercourse because the appellant did not have a condom, but went on to put to her that, ultimately, she said “ok, let’s try it”. The complainant denied that proposition.

50. [64]

    Counsel put to the complainant that the anal rape she alleged had never happened, and that there was no rape, anal or vaginal. The complainant disagreed with each of those propositions. It is not clear whether the proposition concerning “anal rape” was intended as a challenge to the complainant’s evidence that anal intercourse had taken place, or the evidence that it was non-consensual. The question was seemingly carefully framed to avoid specifying what part of the allegation was challenged.

51. [65]

    With respect to the common assault count, it was put to the complainant that, during her panic attack, the appellant “lightly slapped you once and once only”, and that that was the only time he slapped her. The complainant agreed that the appellant had slapped her once during the panic attack (for present purposes, it may be inferred that she accepted that that slap was “light”); she rejected the proposition that that was the only time the appellant had slapped her.

52. [66]

    With respect to the choking allegation, it was put to the complainant that “there was no choking at all like you have described”, to which she replied “there was choking”.

53. [67]

    The cross-examination of the complainant was substantially in accordance with the appellant’s responses to the complainant in the telephone call of 16 September 2020, much of which has been set out above.

54. [68]

    The appellant’s case was clearly put to the jury in counsel’s final address. With respect to the assault count, counsel focused only on what the complainant agreed was a slap by the appellant while she was having a panic attack. That was consistent with written directions given to the jury by the trial judge, in which the actus reus of that count was identified as:

55. [69]

    The appellant’s case with respect to the assault count, as put to the jury, was that, because (as the appellant claimed in the telephone call) he slapped the complainant “to protect her from her own distress”, the Crown had failed to prove that he acted without lawful excuse.

56. [70]

    The more significant aspect of counsel’s address concerns the appellant’s response to the first allegation of sexual intercourse without consent, penilevaginal intercourse. Reflecting what the appellant said in the telephone conversation, counsel put to the jury:

57. [71]

    The appellant’s case was therefore something of a hybrid: on the one hand, he sought to question (fairly unconvincingly) whether sexual intercourse (as defined in s 61HA) had occurred, but maintained that, if it had, it was consensual. The appellant’s case has always been that the complainant did in fact consent. No issue as to the appellant’s knowledge of the absence of consent ever arose. No proposition has ever been put that, for example, the appellant honestly, but mistakenly, on reasonable grounds, believed that the complainant consented to the sexual intercourse. The appellant’s case was plainly that whatever sexual intercourse had taken place was intercourse to which the complainant had consented.

The appeal

1. [72]

   As indicated above, only one ground of appeal is presently pressed. By that ground the appellant asserts that the verdicts of guilty are unreasonable and cannot be supported having regard to the evidence (Criminal Appeal Act, s 6(1)).

2. [73]

   The task of this Court in engaging with such a ground of appeal was stated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (“M”), in which Mason CJ, Deane, Dawson and Toohey JJ said (at p 493):

3. [74]

   Their Honours went on to say (at p 494):

4. [75]

   For an example of a case in which, notwithstanding the apparent credibility of the principal (and only substantial) witness for the Crown, the court set aside a verdict of guilty on the basis of discrepancies, inadequacies, or lack of probative force, see Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.

5. [76]

   In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (“BadenClay”) the High Court (constituted by French CJ, Kiefel, Bell, Keane and Gordon JJ in a joint judgment) emphasised the importance of the role of the jury in the determination of criminal charges and restated the importance of adherence to the principle that jury verdicts are not lightly to be disturbed. Their Honours said:

6. [77]

   The paragraphs extracted above from M have been repeatedly adopted by the High Court: MFA v The Queen (2002 ) 213 CLR 606; [2002] HCA 53 at [25] (“MFA”); SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11] (“SKA”); Baden-Clay at [65]. As a result of observations made by Kirby J in Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21 at pp 147-150, adopted by all five members of the Court in Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [10]-[12], the “unsafe and unsatisfactory” test applied in M is now more accurately formulated in the language of s 6(1) of the Criminal Appeal Act as “unreasonable or [unable to] be supported having regard to the evidence”: MFA at [58]; SKA at [12].

7. [78]

   In opening his argument in this Court senior counsel who appeared for the appellant contended that, emerging from the decision in M, two questions, and two questions only, arise. The questions so formulated by senior counsel were:

8. [79]

   In answering the first question, senior counsel contended, this Court cannot rely in any way adverse to the appellant on the evidence relating to the two counts on which the appellant was acquitted. For my part, I accept that proposition. Senior counsel did accept a proposition from the bench that the acquittals may have the result that, if the Court proceeds to the second question, less deference may be accorded to the jury’s advantage. That is (as I understand it) because the acquittals must be taken to evidence some doubt in the jury’s mind about the credibility of the complainant.

9. [80]

   Written submissions filed on behalf of the appellant contained a series of criticisms of the Crown case. Predominantly, these criticisms relate to the evidence given by the complainant, on which the Crown case depended. Put simply, the argument was that the evidence of the complainant was so unreliable as to be not worthy of acceptance to the requisite standard, and not capable of proof, to the requisite standard, of the appellant’s guilt.

10. [81]

    The convenient course is to outline each of the criticisms in turn, following the sequence in which they appeared in the written submissions, together with my response to each. However, although the appellant’s argument has been segmented in this way, to do justice to the appellant it will be necessary to consider the cumulative effect of such the criticisms of the Crown case as can be sustained, even if those criticisms alone would not be sufficient to engender a reasonable doubt.

11. [82]

    To permit an overview of the appellant’s case I will catalogue the headings in the appellant’s written submissions, before returning to deal with the details of the criticisms. The headings under which the criticisms appear are:

12. [83]

    The appellant relied on the complainant’s intoxication, and her acceptance that there were parts of the evening that she could not remember. These included the content of the conversations between the appellant and the complainant at Darling Harbour and at the casino, and later in her bedroom, and events in her bedroom, and the sequence of those events.

13. [84]

    For my part, I find it unsurprising that the complainant did not have a clear recollection of the conversations referred to; in the first place she was, as has been emphasised, highly intoxicated; in the second place, she was giving evidence three years after the events.

14. [85]

    It is not accurate to say that the complainant’s evidence was that she could not remember what happened in her bedroom. The submission cited a question and answer in the complainant’s cross-examination, that being:

15. [86]

    However, the following question and answer are also pertinent. They are:

16. [87]

    Seven separate aspects of the complainant’s evidence said to be “unsatisfactory” were identified.

17. [88]

    First, it was contended that the complainant’s evidence that the sole reason she permitted the appellant to enter her apartment was so that he could use the toilet was inconsistent with her “stated attraction” to him. The asserted “stated attraction” to the appellant was said to emerge from, inter alia, the text message to OC at 2.00 am on 11 September 2019 in which, after saying that the appellant kissed her “(horribly)” the complainant said:

18. [89]

    Reliance was also placed on the text message to AW, at 4.30 pm on 8 September, in which the complainant said:

19. [90]

    I accept that there was some indication that the complainant experienced some attraction to the appellant, and indeed the complainant agreed in crossexamination that she was feeling “affectionate” towards him and that she felt a “mild” attraction to him. There was, however, nothing in her evidence that suggested that she harboured any desire for sexual engagement with the appellant and nothing that was inconsistent with her stating that she did not want him to come into her apartment because it was “too messy”, and certainly nothing that contradicted her evidence that she would not participate in penilevaginal intercourse without a condom.

20. [91]

    In the same context, reliance was then placed on the absence of any evidence that the complainant had asked the appellant to go home after he emerged from the bathroom. The complainant did say, however, that she had suggested oral sex so that the appellant would go home.

21. [92]

    I do not accept the contention, made by the appellant, that the content of certain of the text messages between the complainant and her friends supported the proposition that the complainant was sexually attracted to the appellant. Those upon which reliance was placed were:

22. [93]

    It was then contended that the complainant’s account of what happened before, during and after the panic attack was inconsistent with her evidence that, afterwards, the appellant repeatedly slapped and choked her. The contention, put simply, was that, as the evidence did not suggest that the appellant had behaved in this way before the panic attack, it was unlikely that he would have done so after.

23. [94]

    I do not agree that any such conclusion or inference should be drawn. The complainant’s account was of some persistence by the appellant in requesting penile-vaginal intercourse, and her steadfast refusal to participate in that form of intercourse without the use of condom. Her account of the appellant slapping her repeatedly is entirely consistent with mounting frustration by the appellant (who also, on the evidence, had consumed alcohol, although the evidence does not establish to what extent).

24. [95]

    The next proposition on behalf of the appellant concerned evidence given by the complainant that she had yelled at the appellant “get off me and just stop”. It was put that, in circumstances where the walls of the apartment were thin and provided little sound insulation, that evidence would not be accorded credibility. The (unstated) premise appears to be that the complainant’s evidence in this respect could not be accepted because, if she had “yelled”, the neighbours could be expected to have rendered assistance. It was said that the complainant “discounted” that proposition on the basis that the neighbours did not like her very much because she was (previously) in a same-sex relationship. There are other reasons for discounting the proposition. There was no evidence that any neighbours were at home. There is no reason to believe that any of the neighbours who heard “yelling” would have intervened. Indeed, it is well known that onlookers or passers-by may, understandably, be reluctant to intervene in the domestic affairs of individuals. I place no weight on this argument.

25. [96]

    The next proposition was that if the complainant’s account of the slapping and choking were correct it was unlikely that the appellant would (as the complainant said) have wanted to cuddle her. Again, I disagree. It is entirely consistent with human behaviour that the appellant, having achieved his goal of penile-vaginal intercourse, would want to display some affection to the complainant.

26. [97]

    The sixth and seventh propositions under this head depended on the evidence that, before the appellant left, he assisted the complainant to look for her mobile phone, which he eventually located in his car and which he brought to her. This, also, was said to be unlikely if the allegations of sexual assault, choking and slapping were true. Moreover, it was pointed out, the appellant knew that the complainant had recorded his mobile phone number in her phone. Returning it to her would enable her to establish his identity, and also to make a complaint to police.

27. [98]

    To the first of these criticisms, I would repeat that there was every reason why the appellant, having achieved his goal, would assist the complainant in the way alleged. There is a little more substance to the second argument, that, if the appellant were guilty of the offences, returning the mobile phone was against his interests. Whether that (alone or in combination with other factors) is sufficient to engender a reasonable doubt remains to be seen.

28. [99]

    The next point made on behalf of the appellant concerned what was said to be inconsistency in the complaints made by the complainant. This was a reference to the text messages sent by the complainant to IE and AW in the early hours of 8 September, immediately after the appellant left the apartment (see [25][33] above). In neither of those messages did the complainant make any allegation of non-consensual sexual intercourse, choking, or repeated slapping.

29. [100]

    Examination of those text messages firmly contradicts that proposition. The complainant told IE that she had refused penile-vaginal intercourse without a condom; that the appellant “kept pushing it”; that he knew where she lived and she was scared.

30. [101]

    The message to AW is also telling. The complainant told him that the oral sex “wasn’t enough” for the appellant, and he kept “begging and begging” and that she continued to refuse to participate without a condom. She concluded by saying that the appellant “restrained me and raped me”. That is not a description of a disappointing sexual experience.

31. [102]

    Nor are the descriptions by IE and VR of the complainant’s conduct and behaviour later in the morning of 8 September consistent with disappointment in an unenjoyable sexual experience; they are, however, consistent with reaction to a traumatic experience.

32. [103]

    Detailed reference was then made to the subsequent messages, which, it was contended, continued to omit any reference to choking or penile-anal penetration.

33. [104]

    In the message to OC the complainant said:

34. [105]

    Although the complainant did not explicitly use the language of non-consent, there is ample in these messages to support her claim, in evidence, that the act of penile-vaginal intercourse was non-consensual. There was no inconsistency in the messages. Rather, a fair reading of the messages shows a consistent description of a non-consensual sexual encounter. That every message did not contain precisely the same information does not tell against the accuracy of the accounts given.

35. [106]

    The appellant’s criticism under this head appears to be:

36. [107]

    It was not correct to say that no reference was made to choking. In the same lengthy message to OC the complainant said:

37. [108]

    The argument was that the complainant’s omission of these asserted events renders her evidence unreliable. When regard is had to the circumstances in which the text messages were sent are taken into account, the criticisms, and the inference that the complainant’s evidence was unreliable, can be seen to be unsustainable. The initial messages were sent immediately after what the complainant asserted to have been an initially congenial, but ultimately unwelcome and violent, encounter with the appellant, at a time when she was intoxicated. The complainant explained that she had not mentioned the anal intercourse to IE, AW, OC or to Senior Constable Bennett because she was embarrassed. It is inapposite to approach the text messages in the way the appellant does. The complainant did not purport to be giving a detailed account in the sense that she might if preparing a statement for a legal case. It is quite apparent that, in the earlier messages, she was in a state of considerable anxiety and seeking contact with two close friends. I do not consider that the absence of any reference to choking or anal intercourse in the initial messages diminishes her credibility, or her reliability (although, as will be seen below, I am of the view that those omissions are important in understanding the acquittals).

38. [109]

    The fourth head of criticism concerns the absence of evidence of injury to the complainant. This criticism was directed only to the evidence given by IE and VR concerning their meeting with the complainant later on the morning of 8 September. Neither gave any evidence of observing any injuries to the complainant’s face or neck. I do not regard this circumstance as bearing on the reliability of the complainant’s accounts. There was no evidence of what the complainant was wearing – that is, whether her clothing might have obscured any injuries or marks on her neck. A slap with an open hand does not necessarily leave any lasting mark. The meeting with IE and VR took place some hours after the events in question. As mentioned above, both IE and VR gave graphic evidence of the complainant’s distress. I am not persuaded that the absence of evidence of injury casts doubt on the complainant’s account of the events.

39. [110]

    The next criticism concerned the delay on the part of the complainant in reporting the events to police, which had the consequence that there was no forensic examination. The point made in this respect was that, as the first time the complainant made any report to police was on 1 October 2019 (when the police contact was because of her concern that the appellant was lurking outside her window, and which she did decline to pursue at that time) there was no opportunity for the police or the appellant to conduct any physical examination of the complainant. It is well understood that delay in reporting an alleged offence can be the cause of disadvantage or even prejudice to an accused person: Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60. I do not discount the significance of this argument. However, the effect of the delay has to be seen in the context of the appellant’s response to the allegations: he did not deny that there was sexual contact, at least penilevaginal. He however, argued that, having regard to the account given by the complainant, immediate medical examination might have revealed that there was (or was not) physical injury. Not mentioned by the appellant, but relevant, is the possibility of DNA evidence to support or contradict her allegation of anal intercourse. (DNA evidence of penile-vaginal intercourse would not be inconsistent with the appellant’s case, as discerned from the telephone call, cross-examination of the complainant and counsel’s final address). As I have said, I accept that delay in reporting is material consideration in acceptance of the complainant’s evidence.

40. [111]

    A further complaint made under this heading was that the delay in complaint meant that there was no opportunity for investigating police to locate CCTV footage of the appellant and the complainant when they were together at Darling Harbour and the casino. In this respect reliance was placed on the complainant’s evidence that, after they had had drinks in the casino, she and the appellant went to an outside area where the appellant kissed her “really aggressively”.

41. [112]

    There was evidence that investigating police had sought CCTV footage from the two locations, but that, given the time that had elapsed, no such footage remained in existence. While I accept that this is a circumstance relevant to be taken into account, I regard it as very minor point. It is highly unlikely that any CCTV footage would to any significant extent support, or cast doubt on, the complainant’s description of the event she described.

42. [113]

    The next criticism was made under the heading “Police Involvement”. This concerns evidence given by the complainant that she believed that the appellant was “stalking her”, an allegation she first made to OC on 14 September 2019 and that eventually resulted, at 3.30 am on 1 October 2019, in the attendance of Senior Constable Bennett at the complainant’s address. In her conversation with OC, the complainant acknowledged that “it could be just a brain cocktail”. The complainant told Senior Constable Bennett that her observation may have been “hallucination from a trauma”, which the complainant attributed to the events of 7 and 8 September.

43. [114]

    It is not quite clear what the appellant seeks to make of this evidence. It post dates the events giving rise to the charges against the appellant. There was no evidence that the complainant suffered hallucinations or “brain cocktail” prior to that date. The evidence is quite consistent with a response by a traumatised victim of sexual offences. Nevertheless, I accept that the evidence is suggestive of some emotional disturbance in the complainant, giving rise, potentially, to distorted perception.

44. [115]

    The next point made on behalf of the appellant arises from the telephone conversation between the complainant and the appellant just after midnight on 16 September 2020. Senior counsel for the appellant closed his oral argument in this Court by submitting that it “is not possible to reject this as a reasonably possible version of what actually happened, and that’s our case”.

45. [116]

    The submission as to the case of the appellant as disclosed in the telephone call was limited. The submission was:

46. [117]

    The appellant on more than one occasion asserted that the complainant had agreed to the sexual activity. The complainant, equally forcefully, if not more so, disputed each such assertion.

47. [118]

    As discussed below, I am not persuaded that the appellant’s assertions in the conversation give rise to a reasonable doubt about the complainant’s evidence.

48. [119]

    The appellant’s final argument rested on the acquittal of the appellant on counts 2 and 4, which, it was argued, could be taken into account when considering the reasonableness (or otherwise) of the verdicts of guilty on counts 1 and 3. The appellant expressly disclaimed reliance on the acquittals as an indication that the jury found that the complainant lacked credibility generally, but, at the same time, submitted that:

49. [120]

    The impact, in a multi-count trial, of acquittals on some counts and verdicts of guilty on others was comprehensively considered in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. The relevant authorities are surveyed in Cullen v R [2022] NSWCCA 63. Particular reference should be made to the reasoning of the joint judgment of Gleeson CJ, Hayne and Callinan JJ in MFA (in which the court rejected a ground of appeal that contended that Markuleski was wrongly decided). It is worth setting out, again, the salient paragraphs of MFA:

50. [121]

    I accept that, in some cases, a verdict or verdicts of not guilty on one or more counts in a multi-count trial may be relevant to the assessment of the credibility of a complainant on other counts which have resulted in conviction. It is necessary closely to examine all of the circumstances, including the circumstances that may be seen to have been the basis of the acquittals: see R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, to which reference was made on behalf of the appellant. In this case, I am satisfied that the jury were persuaded, by trial counsel’s argument, to be cautious in accepting allegations that had not been included in the complainant’s accounts of the events to her friends and to Senior Constable Bennett. That is in accord with the joint judgment in MFA. Although the choking allegation was included in passing in the 11 September message to OC, that mention in a lengthy message appears to have been largely (and unsurprisingly) overlooked.

51. [122]

    In their written submissions counsel provided a summary of the reasons for which they contended the verdicts of guilty are unreasonable and unsupportable on the evidence. These are:

Consideration

1. [123]

   I have carefully considered all of these arguments and the whole of the evidence. As can be seen from the commentary that accompanies the outline of the appellant’s criticism of the Crown case, I am not persuaded that any, other than a very limited number of criticisms, have any substance. Those that have some (limited) substance are the complaints that the appellant was hampered in his defence by the delay in reporting, and the evidence that the appellant returned her phone to the complainant, knowing that it contained his contact details, was not indicative of a guilty mind.

2. [124]

   Neither of these is sufficient to cast any doubt on the Crown case. The complainant’s evidence was cogent. She answered questions apparently frankly, making concessions that could have diminished the Crown case (acknowledging for example, her role in fellating the appellant and her intoxication).

3. [125]

   Contrary to the appellant’s submissions, the messages sent by the complainant in the immediate aftermath of the events are significantly consistent with her evidence, and cogent.

4. [126]

   I am unpersuaded that the verdicts of guilty were not open to the jury. I am, on the contrary, having made my own independent assessment of the evidence, satisfied beyond reasonable doubt that the Crown established that the appellant was guilty of the offences of which he was convicted.

5. [127]

   The significant basis for that conclusion lies in my assessment (obviously, without the advantage of the jury in seeing and hearing the evidence) of the complainant’s evidence. She clearly acknowledged, not only that she engaged in oral sexual intercourse with the appellant, but also that she asked him to “teach her how to do it”. She acknowledged that she was “mildly” attracted to him, and looking for affection. Most importantly, she was, on her evidence, steadfast in maintaining that she would not engage in penile-vaginal intercourse without a condom, expressly because of her concern about potential pregnancy. That that was her concern is supported by her conduct later that morning, in obtaining a “morning after pill”. It was also acknowledged by the appellant to have been her initial position, although he claimed that she later was a willing participant.

6. [128]

   I would therefore grant leave to appeal but dismiss the appeal.

7. [129]

   The orders I propose are:

   1. (1)

      leave granted to appeal;

   2. (2)

      appeal dismissed.

8. [130]

   BUTTON J: My own analysis of the evidence accords very largely with that of Simpson AJA. I consider that it was open to the jury to return verdicts of guilty on the two counts under appeal.

9. [131]

   WEINSTEIN J: I have had the considerable advantage of reading the judgment of Simpson AJA in draft form. Like her Honour, I am satisfied that in this case the jury acquitted the appellant of counts 2 and 4 because of inconsistencies between the complainant’s version of events and her accounts of those events to her friends and to Senior Constable Bennett.

10. [132]

    As to the verdicts of guilty to counts 1 and 3, the function of this Court when determining a ground of appeal that a verdict is unreasonable and cannot be supported by the evidence is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of the offence for which he has been convicted: Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 (Dansie) at [7] applying M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M). Referring to M the High Court in Dansie observed at [8]:

11. [133]

    In answering this question, an appellate court must not disregard or discount that the jury is the body entrusted with determining guilt or that the jury also had the advantage of having seen and heard the evidence: see M; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell). This advantage includes (but is not limited to) being able to assess whether or not a witness has given reliable and credible evidence, and as explained by the High Court in Pell at [39], the role of an appellate court:

12. [134]

    Further, the Court should give weight to the ability of the trier of fact to make assessments in the context of a trial where evidence is adduced orally, as opposed to merely reading the record: see Jaghbir v R [2023] NSWCCA 175 at [136] per Button J citing The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65].

13. [135]

    In this case, the Crown case relied principally on the evidence of the complainant. Simpson AJA has set out that evidence at length in her judgment. The complainant’s credibility and reliability were very much in issue at trial. In my opinion, her evidence was troubling in some respects, all of which were pointed out to the jury in trial counsel’s closing address. Further, the jury had the benefit of the pretext call in which the appellant set out his version of events, and they were given a direction in accordance with Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, about which there is no complaint.

14. [136]

    In my opinion, the complainant’s evidence, if accepted by the jury in material respects was capable of proving the appellant’s guilt beyond a reasonable doubt. There are no matters amounting to “inconsistencies, discrepancies or other inadequacy” which would satisfy this Court that “the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt”: see Pell at [39].

15. [137]

    Having conducted a thorough assessment of the evidence and the trial record, I would grant leave to appeal and dismiss the appeal.