Arizabaleta v R

1. [1]

   LEEMING JA: In the District Court of New South Wales, Mr Alvaro Arizabaleta pleaded guilty to the first, and not guilty to the second and third, of three counts of sexual intercourse without consent knowing that the other person does not consent, contrary to s 61I of the Crimes Act 1900 (NSW). “Sexual intercourse” is defined to include digital penetration of a person’s vagina and the application of the mouth or tongue to female genitalia: s 61HA(1)(a)(i) and (c). The first count was digital penetration of the complainant’s vagina. The second count was cunnilingus. The third count was penile vaginal intercourse.

2. [2]

   Following a judge-alone trial pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the primary judge made findings of guilt on the second and third counts. By reason of s 133(1) of that Act, each finding of guilt has the same effect as a jury’s guilty verdict for all purposes, including the right of appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The single ground of this appeal is that the findings of guilt on the second and third counts are unreasonable and cannot be supported by the evidence. The appeal lies only with leave but the ground is, to say the least, reasonably arguable. There should be a grant of leave and in what follows I shall refer to the appellant.

3. [3]

   I have concluded that the appeal should be allowed, the findings of guilt on the second and third counts should be quashed, and the appellant resentenced for the single offence to which he pleaded guilty.

Overview of factual background

1. [4]

   The charged matters all arose from a single encounter in the early hours of the morning, between 3am and 4am, of Sunday 21 June 2020 following a party at a house in Surry Hills, inner Sydney. There was a single complainant. She was not previously known to the appellant. She cannot be named, by reason of s 578A of the Crimes Act.

2. [5]

   On the day of the offending, the complainant was aged 24 and had lived in Australia for around 18 months. Her native language was Korean. She gave some evidence in English but most of her evidence in cross-examination was given through an interpreter. The appellant is a citizen of Colombia who lived in Canberra and was visiting Sydney that weekend to see his young daughter who was living with his wife from whom he was separated. He was then aged 28. He was a permanent resident of Australia who had been living in Australia for some eight and a half years.

3. [6]

   An assessment of the appellant’s English fluency may be drawn from his recorded interview. His English is quite fluent, although far from flawless. It is difficult to form a view of the complainant’s English fluency, because there is only a relatively brief sound recording of her evidence. The doctor who examined her for some two hours in the immediate aftermath of the assault recorded:

4. [7]

   On the other hand, when giving evidence at trial by means of a closed-circuit television facilities in accordance with s 294B(3) of the Criminal Procedure Act, as was her right, the complainant answered questions both using an interpreter and speaking English directly. As will be seen below, the transcript records many questions as being answered twice, once by the interpreter and once by the complainant herself. The transcript suggests, at least to me, that the doctor’s opinion may have been a little generous. If the complainant’s evidence was recorded, no copy was provided to the Court, and so the assessment of the record is confined to the transcript.

5. [8]

   The trial, which occupied parts or all of four days, was about a small number of disputed facts. The appellant accepted that he had digitally penetrated a sleeping stranger, over a period of 5-10 minutes, constituting a serious sexual assault. There was no issue of identification, or consent, or belief in consent. The only issues were whether the appellant had also committed acts of cunnilingus and penile vaginal penetration upon the complainant.

6. [9]

   The trial took place some 18 months after the event. Memory is malleable, and so the starting point is the contemporaneous documentary evidence, which was richer than is often the case in matters such as this. It will assist in evaluating that evidence to bear in mind the following chronology of Sunday 21 June 2020, largely based on that evidence.

   1. (1)

      For some hours prior to assault – complainant asleep on a couch in the living room of the Surry Hills premises.

   2. (2)

      Between 3am and about 4am – for around 5-10 minutes, complainant assaulted digitally.

   3. (3)

      Before about 4am – complainant takes photograph of appellant asleep on a different couch in the same living room.

   4. (4)

      Before about 4am – complainant records conversation with appellant.

   5. (5)

      About 4am – complainant photographs appellant’s ID and Facebook page.

   6. (6)

      4.28am – appellant orders Uber to take him home.

   7. (7)

      4.28am – complainant messages friend saying she was assaulted.

   8. (8)

      Between 4.30am and 5.40am – complainant driven by Khalel to her boyfriend’s home in Bondi Junction, then travels to police station with her boyfriend.

   9. (9)

      5.42am – complainant attends Paddington police station and gives history.

   10. (10)

       6.33-7.10am – complainant taken by ambulance to Royal Prince Alfred Hospital, gives history to paramedic.

   11. (11)

       7.10am – complainant arrives at hospital.

   12. (12)

       9.00-11.05am – complainant examined and gives history at Royal Prince Alfred Hospital Sexual Assault Centre.

   13. (13)

       About 2.00pm – appellant attends Surry Hills police station.

   14. (14)

       4.10-4.57pm – appellant participates in electronically recorded interview.

7. [10]

   Some aspects of the events giving rise to the prosecution were tediously familiar. The appellant readily acknowledged in an electronically recorded interview he participated in some 12 hours after the events that he had drunk “a lot” of alcohol and had smoked cannabis. The complainant had also drunk alcohol, so much that she had vomited. The agreed facts recorded that she drank five cocktails and a further six drinks that evening, although when giving evidence she said she had consumed less. MDMA was found in her urine, although she denied knowingly having consumed it. She also said that she had consumed two puffs of cannabis.

8. [11]

   There were also numerous roughly contemporaneous social media records which bear upon what had occurred, which enable the assault to be placed at between 3am and 4am on the morning of Sunday 21 June 2020. The complainant had been sleeping for a number of hours prior to the offending on a couch in one of the living rooms in the terrace house where the party took place.

9. [12]

   However, most of the events giving rise to the prosecution were unusual. One is that the appellant was a person of otherwise good character who, on his own account, committed a serious sexual assault upon a sleeping woman he had not hitherto met. Two witnesses, including his wife from whom he was separated, attested to his honesty and generosity, knowing of the offence to which he had pleaded guilty. A second is that only minutes after the assault, and with the intention of obtaining evidence of what he had done, the complainant covertly recorded a conversation with the appellant in which she accused him of digital penetration, which he admitted. A third is that the appellant gave the complainant his name, and permitted her to take photographs of his ID and Facebook page. A fourth is that the appellant voluntarily attended the police station and participated in an electronically recorded interview later that day. A fifth is that many aspects of the appellant’s electronically recorded interview are highly unusual and are consistent with a man who was conscious of having committed a serious crime but also who was telling the truth. Finally, and consistently with the appellant’s case that the prosecution had failed to establish the counts of cunnilingus and penile vaginal intercourse, is the fact that the complainant made no mention of the former and only a qualified mention of the latter, despite giving clear and unequivocal accounts of digital penetration in a series of interviews and examinations in which she participated in the immediate aftermath of the offending.

Documentary evidence

1. [13]

   It is convenient first to address the contemporaneous documentary evidence made by independent witnesses of the events.

2. [14]

   First, the handwritten notes of the police officer dated 5.42am when the complainant and her boyfriend arrived at the police station record a complaint that “TOI: before 4am and after 3am … POI rubbed hands on VIC’s backside, fingers inside vagina, VIC believes possibly penis”.

3. [15]

   The record of the police officer continues:

4. [16]

   It was at this stage that the complainant advised that she had spoken to the appellant, who had apologised for what he had done, and that she had recorded this interaction and obtained his ID.

5. [17]

   The officer’s notes state that the photograph of the ID was timestamped “at about 4am”. The metadata of the photograph was not in evidence. The notes also record that at about 6am, two other police officers spoke with the complainant. Those officers did not give evidence, and if they made notes of anything which was said, they were not tendered.

6. [18]

   An ambulance was called to take the complainant from the police station to hospital. An experienced paramedic accompanied her and made a note of the case description at some stage between 6.30 and 7.30 that morning after she arrived at the hospital. The notes include the following:

7. [19]

   The note states that the complainant was “alert, well perfused, orientated, pearl, OBS within normal limits, NOAD”.

8. [20]

   At the Sexual Assault Centre within Royal Prince Alfred Hospital, a (male) medical practitioner examined the complainant in the presence of a (female) registered nurse. He also took her history, this time in the presence of a (female) sexual assault counsellor. The examination and taking of the history took place, according to the report, between 9am and 11.05am.

9. [21]

   The report recounts the following history:

10. [22]

    There was uncontroversial evidence that the appellant left the party in an Uber which had been booked at 4.28am. The evidence did not disclose when precisely the journey commenced, although it did say that the pickup point was the address of the Surry Hills house where the party had taken place.

11. [23]

    There were also contemporaneous electronic records which were made after the covert recording and her report to police and while she was awaiting the ambulance to take her to hospital.

12. [24]

    Between 4.28am and 4.29am, the complainant sent the following messages to a close friend, Elena, on a platform which appears to be, or to be similar to, “WhatsApp”. The messages below are reproduced verbatim, including the spelling errors and abbreviations which commonly occur. Elena had also attended the party.

13. [25]

    The text messages stop at that point. There were competing submissions about the last message. The Crown suggested that “be” was a mistyping of “he”. The defence suggested that the sense was “maybe”. The complainant gave evidence at trial that she had intended to type “he”.

14. [26]

    Then the handset records “Missed voice call”, twice, at 5.33am and 5.34am. These represented unsuccessful attempts by the complainant to call her friend (who gave evidence that when she woke the next morning, at around 9am, she saw that she had messages).

15. [27]

    Then, between 5.56am and 5.57am, there are the following messages:

16. [28]

    The “brizilan guy” was identified by the complainant at trial as an acquaintance of the appellant who lived in the Surry Hills house. His name was Khalel.

17. [29]

    The messages continue over the next few days, with the friend being supportive. Some of the messages suggest the complainant was distressed. I mean no criticism of her; she had just been seriously assaulted by a stranger while she was asleep, and was having to spend hours of her life speaking to the police. For example, she wrote on the Wednesday afternoon “Yesterday i got investigation for over 4hrs its horrible”. One message to her friend, sent on the Sunday evening at 8.35pm, was deleted. It preceded a message, also sent at 8.35pm, “Police said he arrested today and I will go to police office tmr again”. The complainant was not asked about the deleted message.

18. [30]

    Save for the very first messages reproduced above, none of the messages expressly or impliedly recorded any details of the complainant’s account of the offending.

19. [31]

    A sound recording of the conversation was covertly recorded by the complainant, which, together with the transcript, were tendered without objection at trial. I have listened to the entirety of the sound recording. It lasts some seven minutes. Some of the appellant’s responses are difficult to make out, while the complainant’s voice is much clearer, consistently with her concealing the mobile handset. It is clear from the fact that the complainant did not at that stage know the appellant’s identity that it preceded the appellant’s providing her with copies of his ID. Based on the statement in the police officer’s notebook concerning the timestamp on the photograph of the appellant’s ID being “about 4am”, it follows that the conversation took place sometime before 4am.

20. [32]

    The recorded conversation proceeds as follows (it followed some unrecorded conversation as to which the complainant and Khalel gave evidence):

21. [33]

    After asking for and obtaining the appellant’s details and saying she was going to speak to a friend and determine whether she would report to police, the conversation proceeded:

22. [34]

    The appellant attended Surry Hills police station at about 2pm that Sunday afternoon. The timing of the attendance and the content of the interview suggest that he did so voluntarily. He was arrested, and confronted with the allegation that between 4 and 4.15am that morning, being 21 June 2020, he had digitally penetrated the complainant’s vagina with his fingers while she was asleep on the couch in the living room of the Surry Hills premises.

23. [35]

    Early in the interview the appellant volunteered “Oh, look, I don’t know if I’m putting my, the rope on my neck or whatever, but, uh, the allegations are true”. He explained that he did not have any interaction with the complainant at the party prior to the assault. He said “just maybe looking at each other a bit”, but agreed that there was “no talking, no flirtation, [he] didn’t go over to her”. He volunteered that he had smoked some marijuana as well as drinking. The appellant then said that he saw the complainant lying on a couch, sleeping and “I start just touching her a bit”. He drew a picture of two couches facing each other, and said that he and a male friend were seated on one couch with the complainant lying on the other. He then moved to the other couch and sat at its end by her feet. He said that she was sleeping sideways and he was rubbing her back and leg underneath the blanket, although not under her clothes at that time. He then said that he placed two fingers of his left hand inside her underwear and into her vagina. At first he said it was around 10 minutes and he was then asked whether he understood what 10 minutes was because it was a long time. The officer then timed a minute in order to give an indication of how long a minute is, following which the appellant said the following:

24. [36]

    The appellant then stated that he had his fingers in the complainant’s vagina for five minutes and volunteered that he was “wanking myself as well”. He then gave this evidence:

25. [37]

    He gave clear admissions that it did not look as if the complainant was consenting and that he had never received a verbal consent. He then explained the following:

26. [38]

    The underwear were provided to the police for forensic examination, and a photograph was tendered at trial. The police also took a patch from the semen-stained doona.

27. [39]

    The appellant then described the confrontation by the appellant in the presence of Khalel:

28. [40]

    The officer returned to what had been said during the confrontation between the appellant, the complainant and Khalel:

29. [41]

    Shortly thereafter, the officers played the recording made by the complainant. The first things the appellant said were that he remembered the conversation and that he didn’t know that she was recording. He identified himself and the complainant. He was then asked these questions:

30. [42]

    Towards the end of the interview he was squarely confronted, once again, with the allegation that he had not only used his finger but also had put his penis in the complainant’s vagina, which he denied.

31. [43]

    At no stage was he confronted with any allegation of cunnilingus. The complainant had not told anyone of that at that stage.

32. [44]

    During oral address before this Court, counsel for the appellant drew attention to the following exchange at the conclusion of the interview:

33. [45]

    There were also numerous statements made by people who attended the party or its aftermath. Six of those statements were tendered. Only one contains any evidence of what the complainant said. It is the statement of the paramedic. It was made on 7 October 2020, and her recollection was based upon the ambulance electronic record. She said that the complainant had told her that “She got woken up by a male person fingering her but she wasn’t 100percent sure if he penetrated her with his penis as well”. The statement also included “The patient when I spoke to her would get intermittently emotional and cry. The patient seemed to be aware of the situation and understood everything I said.”

34. [46]

    The foregoing almost exhausts the documentary evidence which was brought into existence in the immediate aftermath of the incident. The exception is that the complainant made a statement on 23 June 2020 and Khalel made a statement on 21 June 2020. Both were cross-examined about some paragraphs in those statements. Neither statement was tendered. Neither of those witnesses sought to distance themselves from the statement. Both agreed that their memory in the immediate aftermath of the incident was better than their memory when giving evidence some 18 months later.

35. [47]

    Khalel said that his statement was made at around 12pm or 1pm on 21 June 2020. The statement recorded that when the complainant confronted the appellant after the assault, she said “You touched my pussy. You had your dick out”, and that she said to Khalel “He touched me. This never happened in my life. I don’t know anyone with the same situation.”

36. [48]

    I shall address the aspects of the complainant’s contemporaneous statement which emerged in cross-examination when dealing with her evidence below.

Complainant’s evidence

1. [49]

   The complainant said that she was awake but did not open her eyes, and did not move her body. She was lying on her right hand side, face to the couch.

2. [50]

   It is clear that the complainant was visibly distressed at times while giving evidence. Early in her examination in chief, just before being asked what happened after the blanket was removed from her body:

3. [51]

   She described the appellant putting first one then two or three fingers into her vagina, and moving them in and out. She felt pain. Her shorts and underwear remained on.

4. [52]

   She then described being rolled so that she was facing the couch, and “Then he moved my shorts to the other side, like before. And then he licked my vagina.” She said she could “feel the wetness”. The interpreter said that “I could feel him breathing down on me”. She said this continued for a couple of seconds. Again her eyes were closed.

5. [53]

   She said that she was wearing denim shorts at the time. She gave this evidence:

6. [54]

   The photograph which was tendered is consistent with the complainant’s description.

7. [55]

   In answer to what happened next, there was the following evidence:

8. [56]

   She explained that, as before, she was lying on her side facing the couch, with her shorts still on, but opened to one side.

9. [57]

   When asked what happened then, there was this evidence:

10. [58]

    She identified that the appellant and Khalel were asleep on the couch opposite her.

11. [59]

    The complainant then woke up Khalel, told him “about what happened briefly” and asked if he knew the appellant, and was told “I don’t know him very well, but is my friend’s cousin”. She said (through the interpreter) that “Then I told Khalel the accused had raped me”.

12. [60]

    She gave this evidence:

13. [61]

    She said she had a short conversation with the appellant just before she started the recording:

14. [62]

    She was asked, in chief, why she made the recording:

15. [63]

    She thereafter took photographs of the appellant’s ID and his Facebook page, tried to speak to her friend, and her boyfriend, but neither picked up. She was taken by Khalel in his car to her boyfriend’s house in Bondi Junction. She and her boyfriend then went to Paddington police station, and from there to the hospital.

16. [64]

    She was asked about the messages to her friend Elena:

17. [65]

    She said that when she saw Elena a few days later, face to face, she said to her “Okay, then this guy he put his fingers, he was licking and he was put his dick to my vagina”. This occurred first in a phone conversation, and then at dinner.

18. [66]

    The complainant confirmed, by reference to a statement made to the police, that she was still feeling drunk when she lay on the couch.

19. [67]

    She agreed that she did not mention that the appellant had licked her vagina to the people at the house, her boyfriend, the police officer, the ambulance officer and the doctor at the hospital. She asked whether she could say why and was told that she would be entitled to do so in re-examination.

20. [68]

    She was asked by reference, apparently, to a statement made by her friend Elena, that she had told her, “He put his fingers inside my pussy and he tried to put his dick in as well; that moment I moved and then the guy lick my pussy as well”. In response, she said “Okay I can’t recall exactly what I said to her”.

21. [69]

    The complainant was then reminded of her evidence in chief given the previous day, which was that the cunnilingus preceded the penile penetration, and then taken to paragraph 18 of her police statement of 23 June, that she could not remember the timing of the cunnilingus, except that it was “after he put his fingers in my vagina”. She said:

22. [70]

    There followed this evidence:

23. [71]

    The complainant was asked, and agreed, that in her police statement there was no mention of the appellant trying to insert his penis into her vagina two or three times.

24. [72]

    She said that she told Khalel that he had inserted his penis, but not its entire length.

25. [73]

    She was asked about her conversation with the appellant before she started recording:

26. [74]

    The cross-examination confirmed what the complainant meant when she used the word “rape” when she confronted the appellant in the recording:

27. [75]

    The complainant accepted that she wasn’t really sure if she told her boyfriend that the appellant had used his fingers or penis. She said she could not recall the exact words she had told the police, or the paramedic or the doctor.

28. [76]

    In re-examination, the complainant was asked why she did not tell the doctor of the cunnilingus:

Testimonial evidence of other witnesses

1. [77]

   Khalel gave evidence in chief that he lived at the Surry Hills house, that he saw the complainant asleep on the couch, that one of his friends put a blanket on her, that a small family with a young child had attended the party, and that he offered his bedroom to them, and that he and the appellant thereafter fell asleep on the other couch in the same room as the complainant, at around 2am or 3am. He was woken by the complainant, who told him that the appellant had tried to rape her. In evidence in chief, he gave this evidence of what the complainant said:

2. [78]

   He was aware that the complainant was recording the conversation she then had with the appellant. He then drove her to her boyfriend’s house. When asked if she said anything else about what had happened to her, the transcript records that he said:

3. [79]

   In cross-examination, as noted above, he agreed that he told police in the immediate aftermath of the incident that she had told the appellant, “You touched my pussy. You had your dick out”, and that he had a better memory of what was said then than he did 18 months later.

4. [80]

   The complainant’s boyfriend gave evidence that he had been at another party that evening and returned home to Bondi Junction. He received phone calls from the complainant in the early hours of that morning, and that when they spoke she said “One guy tried to have sex with me without my permission”. When she met him a little later, he described her as being in shock, and crying a lot. He said that she said, “This guy tried to – he tried to rape me. He tried to have sex with me without my permission”, and he advised her to go to the police. He also said that she said “He tried to take off my short. [He] tried to put his finger on me.” When asked to repeat what she had said, he said:

5. [81]

   The solicitor advocate for the Crown asked a further question of that in chief:

6. [82]

   A female friend who met the complainant at a language course had invited her to a party to celebrate her birthday at a different house in Surry Hills. The complainant attended from around 8pm. She said that more than 20 people arrived, that she was concerned about COVID restrictions, and she didn’t want trouble with her flatmates, so the group of people moved to Khalel’s house, which was five minutes’ walk away. She accepted that her own recollection was affected by alcohol. She said that she saw the complainant lying on the couch, and that it did not surprise her because the complainant “sometimes when she gets a little bit drunk gets a little bit sleepy”. She left the house and went home at around 1am. She described the conversation she had with the complainant:

7. [83]

   Nothing else was said by that witness about any complaint by the complainant.

8. [84]

   The appellant’s wife, from whom he was separated, gave evidence and was cross-examined as to his character. She said that he was held in high regard by his friends and colleagues and family, and that “He would give you your last dollar and – his last dollar and go hungry if he had to”. She said he had always been “very open and honest with his feelings with his communication” and that he had been “transparent with me, about this situation from the start”. She accepted in cross-examination that his conduct in digitally penetrating the complainant was out of character and not consistent with an honourable and caring person.

Other evidence

1. [85]

   The results of the forensic tests undertaken may be summarised as follows. Semen was not detected in a high vaginal swab, a high vaginal smear, a low vaginal smear, a vulval smear, a perianal smear and on the complainant’s underpants. The appellant’s semen was detected on a cutting taken from the doona.

2. [86]

   A mixture of DNA was recovered from the inside crotch of the complainant’s underpants. The major contributor was the complainant. The profile of one of the minor contributors was the same as that of the appellant, and that profile was also expected to occur in 1 in 750 unrelated males in the general population.

3. [87]

   The complainant’s denim pants were also tested, and the mixture included DNA which was highly likely the appellant’s. A photograph of the appellant’s underpants was tendered, and is visibly stained with semen. A tapelift from the front inside crotch of his underpants contained a mixture which exceedingly likely was a combination of the appellant’s and the complainant’s DNA. The expert accepted in cross-examination that this was consistent with the appellant having penetrated the complainant with his fingers and then touched either his underpants or his penis with his fingers, and in re-examination she accepted that it was also consistent with penile penetration of the complainant’s vagina.

4. [88]

   In short, the DNA evidence is consistent with the digital penetration to which the appellant pleaded guilty. It is also consistent with the brief cunnilingus and penile penetration alleged by the Crown.

5. [89]

   The analysis of the doona corroborates one unusual aspect of the appellant’s account, namely, that he masturbated to ejaculation. Plainly that occurred. It is not something mentioned in any of the complainant’s accounts. If she had been aware of it, it is difficult to explain why she did not tell anyone of it, and argument proceeded in this Court on the basis that the complainant was unaware of that fact.

6. [90]

   In the complainant’s testimonial evidence, she said that after she rolled over, to demonstrate that she was waking up, the appellant stepped away from the couch she was lying on. It is difficult to reconcile her account with the fact of ejaculation. There was no exploration of how the appellant moved his body so as to permit contact by first his fingers, then (on the complainant’s account) his tongue and his penis.

7. [91]

   There is no reason to doubt the accuracy of the account given by the appellant in his recorded interview that while he was digitally penetrating the complainant with his left hand, he was masturbating himself with his right hand. There is also no reason to doubt his statement that he used his left hand to masturbate himself as well.

8. [92]

   The was no exploration by the Crown of how the doona had been arranged on the complainant, such that the appellant’s ejaculate was found upon it. Nor was any theory advanced for how the appellant had positioned himself when masturbating to ejaculation (was he sitting on the couch at the complainant’s feet, or was he kneeling on the floor next to her, or standing over her, or in some other position). It is plausible that the appellant’s breathing was heard or even perhaps felt by the complainant as she lay on the couch with her eyes closed.

The unreliability of human memory

1. [93]

   The starting point is that the complainant presented in court as giving a credible, truthful and reliable account of the assault she had endured. Otherwise, there could not have been findings of guilt on the second and third counts of the indictment. However, contrary to the gravamen of the Crown’s submission in this Court, that is merely the starting point of determining whether the verdicts are unreasonable.

2. [94]

   The Crown relied heavily on the force of the complainant’s oral evidence, and the clarity with which it was given. Thus it was said:

3. [95]

   All that may be accepted (although I shall return to the statement that the complainant was “extremely conscious of what [was] going on”). But that is not an answer to the difficulties presented by the evidence. The assessment of whether the Crown has proven the elements of counts two and three beyond reasonable doubt requires regard to be had to the whole of the evidence, not merely the powerful testimonial evidence of the complainant given 18 months afterwards. A striking feature of the evidence in this case is that the clarity and unequivocality of the testimonial evidence 18 months after the event diverged from the evidence at the immediate aftermath of the assault.

4. [96]

   The appellant emphasised the consistently unequivocal complaints of digital penetration, and the consistently equivocal complaints of penile penetration, in the earliest accounts to professional third parties.

5. [97]

   The clarification made in the transcript extracted above was properly made and properly acknowledged. However, the trial expressly proceeded on the basis, first raised by the primary judge, and adopted by the accused and the Crown, that although the appellant was not confronted in his interview with the allegation of cunnilingus, he had implicitly denied it.

6. [98]

   How did the case advanced by the Crown accommodate the consistently qualified initial reports made by the complainant of the penile penetration, in contrast with the confident complaint of digital penetration? One possibility, flagged by the Crown in oral submissions in this Court including the submission reproduced above when reference was made to “language difficulties”, is that the police officer, the paramedic and the medical doctor each misunderstood what the complainant was saying.

7. [99]

   That is, to my mind, extremely improbable. True it is that the complainant’s English was far less than perfect, and true it is that she had just been the victim of a serious sexual assault. Nonetheless, all three accounts, taken by professionals with no reason to do other than to record her account, distinguished between the certainty of the digital penetration with the possibility of penile penetration. If “language difficulties” is the explanation, the same difficulties affected three independent, well-qualified history-takers.

8. [100]

   Another possibility (and, so far as I can see, in circumstances where the complainant’s honesty is common ground, it is the only other possibility) is that the complainant was at the time unsure as to the penile penetration, and only became clear about it in her own mind subsequently. That is overwhelmingly more likely than something having been lost in translation.

9. [101]

   A change in memory from being unsure to being certain can come about in at least two ways. One is that in the immediate aftermath of a traumatic assault, a person is still trying to piece together a coherent account of events. The fact that the complainant may have been affected by licit and illicit drugs bears upon this. It is certainly possible that, upon reflection in the period after an assault, a person may have a better understanding of what took place.

10. [102]

    However, it is also possible that a person’s memory may have become distorted over time. It is not difficult for a belief in a possibility to become a belief in a probability. Nor is it difficult for a belief in a probability to become a belief in the fact. This merely reflects the plasticity of human memory and what happens when the witness is asked, repeatedly, to give his or her best account of what occurred. Every day courts encounter witnesses who genuinely believe their recollections of past events, and find that those beliefs are mistaken.

11. [103]

    There is nothing novel in those observations. By way of recent example, Katzmann, Charlesworth and O’Sullivan JJ observed in Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148 at [129] that:

12. [104]

    In Prouten v Chapman [2021] NSWCA 207 at [12], Meagher JA and I made the same point, and emphasised that it was far from novel:

13. [105]

    There is also a collection of decisions and writings reproduced in The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 at [165] by Davies J, including by Lord Pearce, Leggatt J (as he then was), Sackar J, McLelland CJ in Eq, Keane JA, Hallen J, to which may be added Bell CJ’s comments in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77]. Both Bell CJ and Davies J referred to Leggatt J’s judgment in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm). His Lordship said at [15]-[17]:

14. [106]

    Those observations accord with my own understanding of memory and my own experience in litigation.

15. [107]

    The occasion for the statements summarised above was civil litigation. However, they are also in large measure applicable to many criminal trials. In particular, I agree with his Lord Leggatt’s identification of the two common (and related) errors in [16], to suppose that the stronger or more vivid a recollection is the more likely it is to be accurate, and to equate the confidence of a witness in giving evidence of his or her recollection with the probability that it is accurate. A witness who acknowledges that he or she did not see or hear everything that occurred, or cannot be certain of order, or of the words that were spoken, and recognises the fallibility or his or her memory, may very possibly be giving more accurate evidence of his or her recollection than one who claims to have a clear and distinct memory.

16. [108]

    Acknowledging the fallibility and malleability of human memory is a matter of fact, which involves no question of law. But in any event the matters mentioned above have been endorsed at the highest level in this country, in Fennell v The Queen [2019] HCA 37; 93 ALJR 1219 at [81], upon which the appellant relied:

17. [109]

    Did the evidence when viewed as a whole exclude the possibility that the complainant’s equivocal recollection immediately after the assault actually reflected the possibility that she was mistaken? The Crown’s emphasis in submissions about the clarity of the testimonial evidence at trial, 18 months later, does not address the issue, and explicitly makes both of the mistakes identified by Leggatt J reproduced above. This is not a case where doubts may be resolved merely by reason of the powerful testimonial evidence of the complainant, in circumstances where it is accepted that she was honest and trying to do the best she could to describe what occurred.

Doubts emerging from the evidence at trial

1. [110]

   First, it is clear that the complainant did not fully appreciate all that was happening around her while she was being assaulted. Not only were the complainant’s eyes closed, but she did not appreciate that the appellant was masturbating himself, nor did she appreciate that his semen was left on the doona. The fact of the matter is that all the witnesses who mattered had consumed alcohol to excess and illicit drugs. The complainant said in the sound recording she made that “I can feel it even though I was drunk”. There is no reason to doubt that the complainant was accurately describing that she was intoxicated at least to some extent when she was assaulted, minutes before.

2. [111]

   Secondly, there is the absence of any complaint of cunnilingus until (a) the complainant’s telephone conversation with Elena on 22 June 2020 and (b) her police statement on 23 June 2020. In particular, she said nothing about cunnilingus:

   1. (1)

      in the conversation she was covertly recording with a view to obtaining evidence of the appellant’s offending;

   2. (2)

      in the initial report to the police who would form a view about laying charges;

   3. (3)

      in the history she gave to the female paramedic who was treating her, or

   4. (4)

      in the history she gave to a doctor and sexual assault counsellor.

3. [112]

   The primary judge was well placed to observe that speaking about the cunnilingus was the most distressing aspect of the complainant’s evidence. Her Honour was of that view, and this Court should respect it, although it is clear that the complainant was also distressed when giving evidence about other topics (see for example the transcript reproduced at [50] above). Aside from the sound recording, this Court has only the incomplete and imperfect record of the transcript.

4. [113]

   There may be at least two reasons for the complainant’s distress. One is that favoured by the Crown, in that it explains why the complainant did not mention cunnilingus to anyone in the immediate aftermath, namely, because she found it extremely shameful. The other is that the complainant was acutely conscious that she had not mentioned cunnilingus in her first complaints, making that aspect of her evidence weaker than the other aspects of her evidence. Those two considerations are not mutually exclusive. Both are inherently plausible. Indeed, I am certain that the complainant, whose evidence gives the impression of an intelligent young woman, appreciated that she had not mentioned the act of cunnilingus at the time, and that when she was being cross-examined, that would be a point on which she would be pressed. Early in her cross-examination, in a passage to which [67] refers, the complainant sought to volunteer why she had not mentioned it, which suggests she had anticipated what was, after all, an obvious line of questioning.

5. [114]

   To be clear about this, it is quite possible that the complainant had at all times a clear and distinct recollection of the appellant licking her vagina, and that she deliberately refrained from telling any of the people that aspect of the assault she had suffered, because of the shame it caused her. But that is not the issue. The issue is whether the Crown has negatived as a realistic possibility that her genuine and sincere evidence 18 months later when giving evidence was in fact incorrect, and in truth the most reliable evidence was her initial accounts.

6. [115]

   Thirdly, if the single act of cunnilingus described by the complainant occurred, then it occurred either before or after the penile penetration. The statement of Elena made at the time recorded the complainant’s recollection as, “He put his fingers inside my pussy and he tried to put his dick as well; that moment I moved and then the guy lick my pussy as well” (for what it is worth, that order of events accorded with Elena’s testimonial evidence, too). The statement the complainant made to the police on 23 June 2020 expressly acknowledged, referring to the licking of her vagina for a couple of seconds, that “I cannot remember the timing when that happened but it was after he put his fingers into my vagina”. The complainant’s testimonial evidence in chief, 18 months after the event, unequivocally had the cunnilingus preceding the penile penetration as the complainant said “And then he licked my vagina” in response to a question asking what happened next after the accused put his fingers in her vagina.

7. [116]

   When evaluating the evidence as a whole, it is necessary to have regard to those inconsistencies. That is not to overstate their importance. The appellant’s submission based on this aspect of the complainant’s evidence was an appropriately modest one:

8. [117]

   Fourthly, it is necessary to address the cogency of the appellant’s electronically recorded interview. He acknowledged being drunk and having consumed cannabis (although it would not have been difficult for that to have been established). He acknowledged digital penetration from the outset, before knowing that his admission had been recorded (although he knew that he had admitted as much to the complainant in the presence of Khalel). He volunteered exposing his erect penis. He volunteered masturbating himself to ejaculation, something of which the police and the complainant were unaware and which was discreditable, but which was undeniably true.

9. [118]

   It is possible that the appellant believed he was giving a true and candid account of what had occurred, but because of his intoxication had forgotten the acts of cunnilingus and penile penetration, which on the complainant’s account were brief compared to the digital penetration. It is also possible that in every other respect of his evidence he was telling the truth, but in his denial of penile penetration he was lying. The only other possibility is that the entirety of his recorded interview was truthful, including his denials of penile penetration.

10. [119]

    This Court has the same advantage as the primary judge in relation to the impressions formed from the recording of the interview. I have seen the interview. It is possible that the appellant was lying when he denied penile vaginal intercourse, but it is difficult to reconcile that possibility with the sustained emotional response which is presented. There is force in the submissions made on his behalf in this Court:

11. [120]

    There is one other aspect in which the recorded interview aligns with the complainant’s original recounting of events. Khalel (the man whom she woke immediately after the assault), made a statement to police on 21 June 2020 (the very day of the assault) in which he recalled that she had told him “You touched my pussy. You had your dick out”. It is not improbable that Khalel recalled the very words which the complainant spoke to him when she woke him, very distressed, earlier that morning, and that his recollection was accurate. That account wholly coincides with what the appellant himself told the police he had done on the same day.

12. [121]

    The appellant pointed to the combination of the equivocal aspects of the complainant’s account with his immediate unqualified admissions:

13. [122]

    To reiterate, on the Crown case, the complainant was mistaken three times when she gave an account to a police officer, to the paramedic and to the sexual assault service in the hospital. On the Crown case, she correctly gave unequivocal accounts that she had been subject to digital penetration, but she mistakenly gave equivocal accounts on three successive occasions that she had been subject to penile penetration.

14. [123]

    One possibility is that she was suffering the trauma of a serious sexual assault, and for that reason gave an equivocal account of the penile penetration. But the issue is whether there is a reasonable possibility that the accounts she gave in the immediate aftermath of the assault were more reliable, such that she was correct merely to have a belief that she might also have been subject to penile penetration, and in fact she was correct to have formed an equivocal opinion because that had not occurred.

15. [124]

    If the Crown had not excluded as a reasonable possibility the proposition that the most reliable evidence of what occurred was the complainant’s qualified accounts in the immediate aftermath of the assault, there was a variety of reasons why the appellant might be unsure of the appellant’s conduct when assaulting her. It was said that:

16. [125]

    There is force in that submission. In the circumstances of this trial, findings of guilt could not properly be based on a complainant’s equivocal belief that she had been subjected to acts of cunnilingus and penile penetration.

Conclusion

1. [126]

   Counsel for the appellant was conscious of the temptation in this case to resort to the advantage enjoyed by the primary judge who saw the complainant give evidence under cross-examination, and permit that advantage to resolve any doubt which might be felt. I think counsel for the appellant was correct in that respect. I have no doubt that the complainant, by the time she gave evidence 18 months later, genuinely and sincerely believed that she had been subjected to acts of cunnilingus and penile penetration. But I do not accept that her evidence permits this Court, tasked with evaluating the evidence as a whole, to conclude that the Crown had discharged its onus to the criminal standard.

2. [127]

   It is necessary to draw these threads together. By way of summary, after reading the transcript of the complainant’s evidence, and after hearing the conversation she recorded, it is clear that her English while not perfect is amply adequate to distinguish certainty from possibility. It would be a far-fetched or fanciful coincidence if three independent, professional history-takers made the same mistake as to whether they had in fact heard unequivocal accounts of penile penetration but had recorded different variations of that unequivocal account (“believes possibly”, “believes offender might have penetrated her with his penis”, “she thought it might have been his penis”).

3. [128]

   The alternative is that the complainant was honestly and transparently reporting that she was not certain that what she had felt was penile penetration, but that she had come, as the immediacy of the assault receded, to believe that there had been penile penetration as she recounted, again and again and again and again and again to both friends and strangers what had occurred.

4. [129]

   One possibility for the altered certainty in the complainant’s evidence is the plasticity of memory, especially as time passes and the events are rehearsed in processes familiar to all involved in the litigation process. It should be clear from the foregoing that I intend to convey no criticism of the complainant by contemplating the possibility that she came sincerely to believe that something which she regarded as a possibility was something which had definitely occurred. Everyday experience is to precisely that effect. It is far from implausible that, as the complainant reviewed what she recalled from the minutes around 3am on that Sunday morning in the ensuing days, she became more and more certain that there had been penile penetration as well as digital penetration. That possibility is enhanced by the fact that in the immediate aftermath of her assault, she had had little sleep and quite possibly continued to be affected by alcohol. She had MDMA in her system some 6-8 hours later and may have been affected by that drug too.

5. [130]

   To that must be added that she had been subjected to an appalling sexual assault, by a stranger, as she lay seemingly asleep on a couch at the conclusion of a house party. Different people respond to trauma in different ways, and it is quite possible that the fact that her accounts relegated penile penetration to a possibility reflected as much, together with the fact that the digital penetration took place for far longer.

6. [131]

   To those permutations must be added the remarkable facts that the very large majority of the appellant’s recorded interview was accurate, including events of which the police were not aware and which were against his interest and events which demonstrate that the complainant’s recollection was imperfect.

7. [132]

   I am unpersuaded that the only rational inference available on the whole of the evidence is that the appellant committed acts of cunnilingus and penile vaginal intercourse, and in a case where there was no challenge to the honesty of the complainant, I am unable to attribute the satisfaction arrived at by the primary judge to the advantage she enjoyed in presiding over the trial: cf Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [38].

8. [133]

   Since writing the above, I have read in draft the reasons prepared by McNaughton J favouring dismissing the appeal. I add the following, in order to explain why notwithstanding having enjoyed the benefit of reading her Honour’s reasons, I remain of the view that this appeal should be allowed.

9. [134]

   The essence of my reasoning is simple. I have reviewed all the evidence at trial, I am unpersuaded that the Crown has established beyond reasonable doubt that the appellant committed acts of penile vaginal penetration and cunnilingus upon the complainant, and I consider that s 6 of the Criminal Appeal Act requires the convictions to be quashed. No part of that reasoning involves discrediting any of the complainant’s evidence. The main source of my doubt is the consistently divergent accounts by the complainant of the charged acts themselves.

10. [135]

    There is no dispute that within 7 hours of being assaulted, the complainant told a series of independent witnesses consistently unequivocal accounts of digital penetration and consistently equivocal accounts that the appellant might also have penetrated her with his penis. The most probable explanation for the notes recorded by the police officer, the ambulance paramedic and the medical practitioner is that at the times she told them that she was certain of the former and less certain about the latter. It is true that the complainant was speaking in English, which was not her native language. But I do not accept that the difference between unequivocal certainty and something less than unequivocal certainty was “lost in translation” in three separate histories recorded by three professional history-takers.

11. [136]

    There were two other contemporaneous records of statements made by the complainant. One is the sound recording. The other is an incomplete text message with an error in it. Both might be read so as to suggest the complainant is conveying that she was penetrated by the appellant’s penis. I am of the view that neither is unequivocal. I am also of the view that this Court is in no worse position than the primary judge to evaluate those pieces of evidence.

12. [137]

    In the sound recording, the complainant is certain that she was digitally penetrated, and is making the point to a man who had committed an appalling act upon her that what he had done was rape. That is the ordinary meaning of her words, after confronting him “Why you put your hands to my pussy?” with the statement “Anyway, you raped me, you know what is rape? Without agree you put something hands or something your dick” (to be clear, the word “something” was actually spoken by the complainant, twice, in English). The natural meaning of the words is that complainant was correctly stating that the offence of sexual intercourse without consent extended to digital as well as penile penetration.

13. [138]

    I accept that the words which follow, “I was scared because I don’t know who you are and I don’t know whose dick, I don’t know whose hands and I don’t know who’s there” are in a different category. The main point is that the complainant was, understandably, saying that she was scared because she was being touched by an unknown person who thought she was sleeping. The words are suggestive of an accusation of penile penetration. But they are of a different character from the words she had said, seconds earlier, “Why you put your hands to my pussy?”. They lack the unequivocality of the statement made a few seconds earlier that she had been digitally penetrated. The words amount to the same pattern seen in the histories taken by the police, the paramedic and the medical doctor: the complainant was certain she had been digitally penetrated, but less certain about penile penetration.

14. [139]

    The last of the series of WhatsApp messages sent to Elena at 4.28 and 4.29am contains an error. The messages end abruptly with “And be [sic] put his dick”. The most likely candidates for what the complainant intended to write are “And he put his dick” or “And mbe put his dick”. Both competing hypotheses involve a single mistype.

15. [140]

    I do not agree that the last message is an unequivocal accusation of penile vaginal intercourse. Read in isolation it is equivocal because there is no way of determining what the complainant intended to type. Other things being equal, “he” is more likely than “mbe”, because “h” and “b” are neighbours on an image of a qwerty keyboard, and it strikes me as being easier to make that mistake than to omit an “m”.

16. [141]

    Other considerations bear upon the probative value of the message. Seconds before writing “And be put his dick”, the complainant had written “He rapped me” followed by “Raped me”. Why the series of messages ended abruptly, and why no correction was made to the last message when the complainant had corrected the earlier message, is unresolved by the evidence adduced at trial. But “rapped” shows that at the time the complainant was mistyping by erroneously repeating a letter.

17. [142]

    It is also necessary to bear in mind that the complainant only a few hours later told the police unequivocally that she had been digitally penetrated but only believed she might have been penetrated with his penis, and gave similar accounts later that morning to a paramedic and a medical doctor. Sometime after 5.42am a police officer wrote “VIC believes possibly penis”, sometime after 6.30am a paramedic wrote “patient believes offender might have penetrated her with his penis” and sometime after 9am a medical doctor wrote “she thought it might have been his penis”. It is not implausible that at 4.29am the complainant might also have been telling her friend of the possibility that the appellant had inserted his penis.

18. [143]

    In all the circumstances, I do not think that the possibility that the complainant intended to write “And mbe put his dick” can be excluded.

19. [144]

    Although there was no jury, the jury’s function remained relevant to this trial, for two reasons. One is this Court’s jurisdiction. The primary judge found the appellant guilty of counts 2 and 3. Those findings have the same effect, for all purposes including ss 5 and 6 of the Criminal Appeal Act, as a jury’s verdicts. The second is the meaning of s 6(1). It is settled that the provision is to be applied in its own terms. It is necessary to adhere to the statutory language, rather than to phrases ultimately derived from statutes in other jurisdictions (such as “unsafe and unsatisfactory”): Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [12]. When doing so, the words “unreasonable” and “[un]supported having regard to the evidence” in s 6(1) are construed in a context where the verdict is that of a jury, which particularly in a serious criminal case such as the present is accepted as “attracting to decisions concerning the liberty and reputation of accused persons a special authority and legitimacy and hence finality” (MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [48]). The result is that they have “a strictness of meaning that, in isolation or in other contexts, those words might not enjoy” (MFA at [49]). That understanding of s 6(1), originally enacted in a context confined to review of jury verdicts, applies to the deemed jury verdicts in the present case.

20. [145]

    I shall proceed on the basis (unfavourable to the appellant, but sufficient on the view I take to resolve his appeal) that the deemed verdicts from a judge’s findings of guilt attract the same deference as would a jury’s guilty verdicts. I should add for transparency that I am far from persuaded of the correctness of that as a universal proposition, but that is not a matter that was argued or requires resolution in this appeal.

21. [146]

    In the present case, the primary judge’s reasons may be put to one side. It was not suggested they were reviewable for some patent error of law. The only issue is whether the findings of guilt are “unreasonable”. That turns on the evidence.

22. [147]

    Further, it was not suggested that the complainant was doing anything other than honestly giving her recollection of being sexually assaulted 18 months earlier. The findings of guilt are to be assessed no differently from many cases of unreasonable jury verdicts on the basis that the complainant was regarded as credible and reliable.

23. [148]

    I respectfully disagree that ss 293A and 294 of the Criminal Procedure Act play any material role in this appeal. There was no complaint about any misdirection. And this is not a case where there had been the sort of delay or inconsistency to which those sections are primarily directed. This is a case where in the immediate aftermath of the assault, there was consistent and immediate unequivocal complaints of digital vaginal penetration, consistently equivocal complaints as to penile vaginal penetration, and a consistent absence of any complaint of cunnilingus. The appellant pleaded guilty to the first, denied the second when it was put to him, and was never confronted with the third when he participated in an interview because no such complaint had been made. What is required to be scrutinised in the present case is the significance attributed to the different qualities of the immediately contemporaneous complaints made by the complainant. If ss 293A or 294 are relevant to that, their relevance is at best peripheral.

24. [149]

    The high point of the Crown case was the complainant’s unequivocal and unshaken evidence of the penile vaginal penetration and cunnilingus when testifying in Court. I reiterate that I believe that she genuinely and sincerely believed the truthfulness of her account when she gave it. That evidence considered in isolation was amply capable of sustaining the findings of guilt. But this Court’s task is to review all of the evidence, including the evidence which tends to detract from the complainant’s unequivocal testimonial evidence at trial.

25. [150]

    I respectfully agree with the comment in McHugh J’s dissenting judgment in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 concerning the inevitability of inconsistencies and variations in an account which McNaughton J has reproduced. I do so notwithstanding that his Honour was in dissent and his dissent extended to this point (for the appeal was allowed by a majority which placed some weight upon the range of inconsistencies in the evidence of the complainant daughter), because the proposition is one of fact, not law. And I respectfully agree with the further point made in Hossain v R [2023] NSWCCA 18 at [261] concerning the relative irrelevance of divergent accounts of the order of acts or sensations. I have sought to indicate above that only minor weight was placed by the appellant upon the inconsistent accounts by the complainant of the order of the conduct giving rise to counts 2 and 3.

26. [151]

    Were the deemed verdicts “unreasonable” or unable to be “supported having regard to the evidence”? That is to be determined by reference to the approach of the majority in M v The Queen, and not to the more stringent test applied by McHugh J’s dissenting judgment, which he subsequently disavowed in adherence to precedent (see MFA at [55]-[57]). The question is not whether the tribunal of fact must have entertained a doubt, although that was the view favoured by Brennan J (at 501-505) and McHugh J (at 489). The rejection of those views by the majority in M v The Queen is arguably difficult to reconcile with a statement made in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], but it is unnecessary to do so, because subsequently the High Court has confirmed, in terms, that “Libke did not depart from M”: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [45]; see also Dansie at [13]. The question is whether it was reasonably open for the trial judge to be satisfied beyond reasonable doubt of the commission of the offences: Pell at [45]; Dansie at [8]. It is necessary for this Court to make an independent assessment of the evidence adduced at the trial: M v The Queen at 494-495. No differently from Pell at [39], the task of the appellate court proceeds on the basis that the evidence of the complainant was assessed by the tribunal of fact to be credible and reliable. But that is the starting point, not the end point. The question is then as stated by the joint judgment in M v The Queen at 494:

27. [152]

    That passage was endorsed in Dansie at [9]-[10]. To the same effect, the unanimous High Court said in Pell at [39]:

28. [153]

    For the reasons I have sought earlier to explain, this is a highly unusual case. The combination of unforced admissions and denials by an appellant who was a man of otherwise good character, at a time before he knew of the sound recording, is strikingly unusual. Even so, I am conscious of the possibility that the appellant committed all of the offences with which he was charged, and has conveniently or genuinely forgotten the acts of penile vaginal intercourse and cunnilingus, which on the Crown case were relatively momentary. But the question is not whether it was “open” to the primary judge to accept the complainant’s evidence as elicited in chief and confirmed in cross-examination. The question is whether her Honour ought to have entertained a reasonable doubt because this was a case where there was a significant possibility that despite the complainant’s genuinely held certainty, she had only reached that certainty through the familiar frailty of memory when a traumatic event is recounted again and again, and in fact her consistently equivocal complaints in the hours after being assaulted were more reliable than her unequivocal evidence 18 months later.

29. [154]

    The position is somewhat starker when it comes to the allegation of cunnilingus. There are two possibilities. One is that the complainant at all times believed that the appellant had also committed that act, but did not tell her friend or the police or the paramedic or the medical doctor immediately before she was to be examined for the purpose of obtaining evidence for the allegations she had made, because she was found it shameful. That is quite possible, and it was her evidence at trial, but it involves an adult complainant who said she had definitely been digitally penetrated hours earlier, and who also said she believed she had been penetrated by his penis hours earlier, consciously not divulging his further act on three occasions when giving accounts of what occurred. Another is that she repeatedly made no mention of it, when giving her accounts in the immediate aftermath of the assault, because she did not at the time believe that it had occurred, but later came to believe that he had performed that act too. The latter is consistent with the effect of reconstructing malleable memories that are seen every day in courts.

30. [155]

    I would readily acknowledge that the complainant’s testimonial evidence may well have been reliable. But that is not sufficient. The issue was not whether having regard to all the evidence the elements of the charged acts probably occurred. The criminal standard of proof matters.

31. [156]

    I think there is a significant possibility that the appellant has been convicted of two offences he did not commit. And I think that the primary judge ought to have had the same doubt.

32. [157]

    I have not hitherto addressed the reasons of the primary judge. Both sides agreed that, in accordance with what was said in Dansie at [16], it would suffice to put to one side her Honour’s reasons and approach the appeal as if there were opaque verdicts of a jury. The question for this Court on the only ground of appeal is not whether there are errors in the reasons of the primary judge. However, by way of cross-check, so as to explain why the view I have reached diverges from that reached by the primary judge, two things may be noted.

33. [158]

    The first is that absent from the reasons is any explicit analysis of the inconsistencies and improbabilities of the evidence which I have sought to provide above. The primary judge stated that her Honour had regard to the inconsistencies, but did not address why she had excluded the process of reasoning indicated above.

34. [159]

    The second is that the primary judge placed weight upon a passage in the sound recording made by the complainant which is reproduced above. Her Honour was of the view that it amounted to a contemporaneous statement by the complainant of penile penetration:

35. [160]

    This Court is in no inferior position that the primary judge to determine the effect of what was said. I have set out my reasoning above. The usages of “dick” are quite different. The first is not to the point. While it is true that the second may be understood as implying an allegation of penile vaginal penetration, it lacks the unequivocality of the accusation of digital vaginal penetration a few seconds earlier, and thus is consistent with the accounts given by the complainant to the police, the paramedic and the medical doctor.

36. [161]

    I have also had the benefit of reading the reasons for judgment of Rothman J. In addition to what I have said above, I would add that I agree with his Honour that setting aside a jury’s verdict, or a finding of guilt by a judge sitting without a jury which is taken to have the same effect as a jury’s verdict, requires more than merely the appellate court experiencing a doubt. As his Honour observes, it is also necessary for the doubt to be one which the tribunal of fact ought to have experienced, and in addressing that question, it is essential for the appellate court to pay full regard to the fact that primary responsibility for determining guilt or innocence is entrusted to the tribunal of fact at the criminal trial, which has the benefit of having seen and heard the witnesses: M v The Queen at 493. Where we part company is that I am unpersuaded that the advantages of the primary judge were sufficient to resolve those doubts. Nothing in the record I have seen (including the brief dispositive reasons of the primary judge, which occupy less than four double-spaced pages) persuades me that the reasoning I have sought to develop above was taken into account, let alone resolved, in the District Court.

Orders

1. [162]

   I propose that there be a grant of leave, that the appeal be allowed, that the findings of guilt made on 15 December 2021 and the order of the same date that the accused is found guilty of counts 2 and 3 be quashed and in lieu thereof it be found that the appellant was not guilty of the second and third counts on the indictment. Those findings will, by dint of s 133 of the Criminal Procedure Act, have the force of a jury’s verdict.

2. [163]

   The sentence imposed by her Honour on 11 February 2022 was an aggregate sentence of four years imprisonment with a non-parole period of two years and eight months, taken to commence from 10 February 2022 (reflecting one day’s pre-sentence custody). The indicative sentences stated for each of the three counts, in accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), were, in each case, three years imprisonment with a non-parole period of two years and one month. In the case of count 1, that indicative sentence incorporated a discount of 25% reflecting the guilty plea. Her Honour made a finding of special circumstances, and varied the ratio of the non-parole period to the term of the sentence in accordance with s 44(2) of that Act.

3. [164]

   It is appropriate to follow the course proposed by the appellant, and not opposed by the Crown, of resentencing in accordance with the indicative sentence. Accordingly, the aggregate sentence should be quashed, and the appellant resentenced to a term of imprisonment of three years, with a non-parole period of two years and one month, commencing 10 February 2022.

4. [165]

   I propose the following orders:

5. [166]

   ROTHMAN J: I have had the distinct advantage of having read, in draft, the reasons for judgment of each of Leeming JA and McNaughton J. I am grateful for their analyses of the evidence adduced at trial, the submissions on appeal, and with the general principles applicable to the determination of this appeal.

Principles on Appeal on Unreasonable Verdict

1. [167]

   It is necessary to reiterate some general principles associated with determining a ground of appeal that relies upon an unreasonable verdict in the context of the role of an intermediate appellate court. The trial from which this appeal arises was a judge-alone trial. As a consequence, the Court has available to it the reasons for judgment of the trial judge and, therefore, the basis upon which the trial judge reached her verdict.

2. [168]

   As explained by Leeming JA, the verdict of the trial judge has the same effect as if it were a verdict by a jury. Nevertheless, the Court does not need to assume that the jury followed directions given by a presiding judge, because the directions and the reasoning process is exposed by the reasons for verdict.

3. [169]

   For the purposes of these reasons only, and without finally determining the issue on a general basis, I accept that a greater degree of deference is afforded the verdict of a jury than the reasons for judgment of a single judge. Nevertheless, the test on appeal is the same, when determining whether a verdict is unreasonable.

4. [170]

   In a different context, Gleeson CJ said:

5. [171]

   A criminal trial requires the Crown to prove guilt beyond reasonable doubt. The requirement to prove beyond reasonable doubt arises because of the importance of the liberty of the individual, and the individual’s entitlement not to be sanctioned by the criminal law unless the conduct is assured.

6. [172]

   Underpinning the principles exercised by an intermediate court of appeal, in an appeal on a ground alleging unreasonable verdict, is the balancing of the finality of an outcome at first instance that depends upon an assessment of evidence, and the importance of ensuring that persons convicted of a serious criminal offence have been convicted both in accordance with law and beyond reasonable doubt. As has been stated by the High Court, the verdict of a jury in serious criminal cases is accepted “symbolically, as attracting to decisions concerning the liberty and reputations of accused persons, a special authority and legitimacy and hence finality.” [2]

7. [173]

   The finality to which the foregoing quote from the joint judgment refers is, necessarily, qualified by the existence of s 6(1) of the Criminal Appeal Act 1912 (NSW). This qualification, as earlier stated, is made because the prospect that an unreasonable conviction would stand is one that is intolerable in a democratic environment and would be inconsistent with the legitimate exercise of lawful power. [3]

8. [174]

   My learned colleagues have discussed at some length the principles associated with the determination of whether a verdict is unreasonable. Even though repetitive, it is necessary to restate some of those principles. In MFA, supra, the High Court cited with authority its judgment in M v The Queen [4] in which the High Court said:

9. [175]

   In the foregoing quotation from M v The Queen, the High Court used the term “unsafe or unsatisfactory”, which is a term no longer utilised following the judgment in MFA. In MFA, the High Court emphasised the wording of s 6(1) of the Criminal Appeal Act, its use of the term “unreasonable” and the breadth of the test described in such terms, restricted by the context in which the intermediate appellate court is taking a “serious step” in overturning a verdict at first instance.

10. [176]

    Nevertheless, the High Court made clear that one should not concentrate on whether the jury “must” or were “bound to” have a reasonable doubt about the guilt of the accused. Rather, the question is whether it was “open to the jury to be satisfied…beyond reasonable doubt, acting as a reasonable jury and reaching their verdict ‘upon the whole of the evidence’.” [6]

11. [177]

    The test on appeal on the ground of an unreasonable verdict has been expressed in a number of ways. Nevertheless, the effect of the various expressions is that the appeal court is required to determine for itself whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the accused was guilty of the offences with which the accused had been charged. [7] This is a question of fact; it is not the same issue as to whether there is evidence that is capable of convicting.

12. [178]

    As has been pointed out, an intermediate appeal court assesses the whole of the evidence to determine whether the first instance decision maker “ought” to have had a doubt. As cited with approval from M v The Queen, supra, in MFA, “in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced”. [8]

13. [179]

    Notwithstanding the foregoing, because a conviction has been reached in a case such as this, the Court is required to proceed “upon the assumption that the evidence of the complainant was assessed…to be credible and reliable.” [9] As the Full High Court said in Pell, supra,:

14. [180]

    In Pell, the Full Court of the High Court also said:

15. [181]

    Earlier in these reasons I expressed a view, more definitely than has been expressed by Leeming JA in his reasons for judgment, as to the deference to the verdict of a jury, both by reason of its role in the criminal justice system and as a feature of both history and the understanding of the community. Notwithstanding the greater deference given to a jury, accepted by me for the purposes of these reasons, the test on appeal under s 6(1) of the Criminal Appeal Act is identical.

16. [182]

    The term “unreasonable” or “cannot be supported having regard to the evidence” is the same test whether the verdict is reached by a judge or by a jury. The meaning of those terms ought not differ depending upon the first instance decision maker, although as a matter of practicality it may differ as to result.

17. [183]

    The difference in result may occur because the Court has the capacity, in the case of a judge’s verdict, to determine how and why a particular verdict has been reached. As a consequence, the Court, on appeal, is not undertaking the task of “going behind” the possible reasoning that gave rise to the verdict. The Court, is, or should be, fully aware of the reasoning.

18. [184]

    Where, in the expression of the test to be used on appeal, the Court is required to determine whether the decision maker “ought” to have had a doubt, as earlier stated, the test is broader than “must” or “was required to have a doubt”. Nevertheless, the test requires that the Court conclude that the first instance decision maker should have had a doubt.

19. [185]

    The initial decision maker has the distinct advantage of observing the evidence as it is given. Such an advantage is not enjoyed by this Court.

20. [186]

    The fact, if it were the fact, that this Court may have considered that a reasonable doubt existed in relation to one or more of the charges is insufficient, unless the Court also considers that any person (including a jury), acting reasonably, examining and analysing the evidence as a whole should have had the same or similar doubt. It is insufficient that one or more judges of the Court would have come to a different view than the initial decision maker, if the conclusion of the initial decision maker were reasonably open and not inconsistent with otherwise independent or accepted evidence.

21. [187]

    As has been explained earlier, “in most cases” a doubt experienced in this Court will be a doubt which a jury ought to have experienced. But a doubt experienced in this Court is not, in all cases, a doubt which a jury ought to have experienced.

22. [188]

    Where, as here, the conclusion that the complainant’s version of events has been proved beyond reasonable doubt is based upon an assessment of the evidence adduced at trial, the original decision maker is having regard to the observations made of the evidence, and the Court must not disregard or discount the consideration that the decision maker is entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the decision maker has had the benefit of having seen and heard the witnesses. [12] The Court must have full regard to those considerations.

The Frailty of Human Memory

1. [189]

   In his reasons for judgment, Leeming JA summarises the well-known unreliability of human memory. These issues, while not necessarily the subject of comment in judgments, are well-known aspects to any trial judge and should be well known to most trial lawyers. It is the underlying reason that courts have stressed that demeanour is not necessarily the best guide to truth or reliability.

2. [190]

   As Leeming JA notes, if the memory of a witness is faulty and the witness believes the accuracy and truthfulness of the memory, the testimony of the witness may be confident and truthful, even though it may be inaccurate.

3. [191]

   Demeanour is also unreliable as a guide in a number of cases such as circumstances where cultural differences may affect the manner in which people answer questions or respond to authority. Again, trial judges are familiar with these difficulties and, in some respects, they are the subject of comment in the Bench books available to judicial officers.

4. [192]

   Leaving aside for present purposes the witnesses who are deliberately lying and are good at it, witnesses will often elide events and, in relation to conversations, remember words said that were not said because the witness gives the gained “impression” of the conversation and its effect. Not all witnesses are in that category.

5. [193]

   As Leeming JA points out, comments in verdicts or reasons for judgment in relation to the unreliability of memory are not “normal”. They are an aspect of the daily functions of a trial judge and do not generally require exposure on a theoretical level.

6. [194]

   Because of the known unreliability of memory, decision makers are either directed to look for independent evidence or, in the case of judges, rely more heavily on independent evidence than on oral testimony. Thus, in Pell, the dissenting judgment of Weinberg JA in the Victorian Court of Appeal and the judgment of the High Court relied on independent evidence showing the difficulty and/or improbability of the events recounted in the oral testimony adduced by the prosecution in relation to the named accused.

7. [195]

   In this case, there is no such independent evidence. On the contrary, the independent evidence that does exist corroborates the existence of a sexual assault, and it is the details of that sexual assault, to which Leeming JA refers.

8. [196]

   The trial judge in this matter is an experienced criminal trial judge and, before being appointed, was an experienced criminal lawyer. While Leeming JA does not suggest that the trial judge would be unaware of these issues, given the trial judge’s experience, it would be impossible for her not to be aware of these issues.

9. [197]

   There is a difference between a memory that a conversation occurred in particular terms and the occurrence of a traumatic event such as this. There is also a difference between a direct inconsistency in the account given and inconsistencies that arise from alleged omissions, particularly when referring to traumatic events.

10. [198]

    Often, in recounting events, when there have been, for example, a number of meetings or conversations, witnesses will recall the terms of all the conversations as if it were one conversation. The present case is not a situation such as that.

11. [199]

    Similarly, if the complainant had been sexually assaulted by the applicant on a number of occasions, as is the case in many such assaults, it would not be unusual for a complainant to elide the occurrences on one occasion with the occurrences on another. Yet, in this case, elision of that kind is impossible or unavailable.

12. [200]

    In this case, the issues raised relating to the unreliability of memory relate to two factual details. First, whether penile penetration occurred; and, secondly, whether cunnilingus occurred.

13. [201]

    Ultimately, the complainant testified as to that which she said occurred. The testimony in relation to digital penetration was consistent with her early and express complaint. Her testimony as to penile penetration is consistent with her initial complaint and reference to the applicant’s “dick”. The early complaint did not mention cunnilingus.

14. [202]

    The “inconsistency” to which Leeming JA points in his reasons is that the early complaint was not as detailed as the testimony given in court and later descriptions of all that occurred. An omission, particularly in sexual offence cases, of details of all that occurred is not necessarily inconsistent with a later version that details, in evidence, all that was said to occur.

15. [203]

    Any alleged inconsistency arises because, impliedly, by omitting important detail, the witness is stating that such detail did not occur. But there are good reasons why that implicit inconsistency does not arise in sexual offence cases, in particular.

16. [204]

    All criminal offences are, to the victim, traumatic. The trauma has different effects on different people. In sexual offence cases, in particular, where there is a misplaced sense of guilt from quite innocent victims, failure to detail all of the occurrences is common and a well-known aspect of the effect of sexual assault. There is also an embarrassment factor.

17. [205]

    Over and above the foregoing, the evidence of the complainant was not only clear, it was rational and well-based. Thus, the complainant differentiated the digital penetration on account of it being painful and uncomfortable. Further, the complainant differentiated that feeling from that which she described as the penile penetration.

18. [206]

    The reasonable possibility of an alternative to this occurring, raised by Leeming JA in his reasons, does not, with great respect to Leeming JA, withstand scrutiny. It is accurate that the complainant did not see all that was occurring. Apart from the relative positions of the complainant and the applicant, the complainant accepts that for most, if not all, of the events her eyes were closed. Nevertheless, she was able to differentiate the feeling of the applicant’s penis from the different feeling associated with the digital penetration. Further, the complainant was able to differentiate the moistness of the applicant’s mouth and tongue from the other events.

19. [207]

    While it is accepted that there was a reasonable possibility that the applicant was, as he stated, masturbating with his other hand at the time some of these events occurred, such conduct does not account either for the feeling of the penis or the feeling of moistness. If the moistness was caused as a result of the masturbation, then semen would have been detected in the lower vaginal swab. It was not.

20. [208]

    Historically, earlier complaint in criminal cases, with the exception of sexual offences, could never be the subject of admissible evidence. In sexual assault cases, the fact of complaint, if it were provided as soon as immediately practicable, could be the subject of evidence, in order to overturn the now abandoned presumption of consent. However, the terms of the complaint could never be adduced in evidence.

21. [209]

    When the legislature promulgated the Evidence Act 1995 (NSW), and its Commonwealth and State counterparts, the terms of the complaint became admissible, because the complainant was a witness who was to give evidence and the hearsay exception to relevant evidence was excluded, for that reason.

22. [210]

    Nevertheless, leaving aside a direct inconsistency such as would arise if further conduct was denied or described differently, a determination that an inconsistency arises from the circumstance of an omission of detail, particularly of sexual assault, for the reasons already given, needs to be dealt with in a manner that understands recent learning on the behaviour of victims and their capacity to recount events in detail, either immediately or for some period. In this case, the inconsistency upon which Leeming JA relies is an implied inconsistency arising from the failure to give the details of the performance of cunnilingus in the earliest complaints, even though the detail was given in testimony in court. In my view, the implied inconsistency associated with that issue does not overcome the benefit enjoyed by the trial judge in observing the evidence adduced in court and, therefore, does not give rise to a doubt that would warrant interference with the fact-finding exercise.

Conclusion

1. [211]

   As should be clear from the foregoing, the circumstance that Leeming JA may have come to a different view on Counts 2 and 3 does not, by itself, result in a conclusion that the trial judge “ought” to have had a reasonable doubt. The trial judge observed the evidence. The complainant was cross-examined appropriately and skilfully. The trial judge concluded the complainant was not only truthful but reliable. The trial judge’s conclusion arises from the advantage enjoyed by the trial judge; an advantage of which this Court does not have the benefit.

2. [212]

   Notwithstanding the view I have expressed as to the role of this Court in the circumstances of this appeal, I have independently come to the view that I do not have a reasonable doubt as to the guilt of the applicant on Counts 2 and 3. In circumstances where there are two versions of events, there is always a theoretical possibility that the version accepted by the decision maker at trial is inaccurate or wrong and the version not accepted by the decision maker at trial is correct.

3. [213]

   In criminal proceedings, it is necessary, as was noted by the trial judge, for the trial judge to be satisfied beyond reasonable doubt of the version of events provided by the complainant. [13] Where there are different versions of events as to a charge before a court, it is necessary to ensure, in the case of a jury by suitable direction, and in the case of a judge-alone trial in the approach to be taken, that the question is not answered simply by concluding which of two versions should be preferred, unless, of course, the preferred version is that of the accused.

4. [214]

   Even where a complainant’s version of events is the preferred version, the court is not able to convict an accused unless it is satisfied, beyond reasonable doubt, of the truth of that evidence. The truth of the evidence in the foregoing context includes its accuracy. It is necessary for the decision maker to be satisfied positively, that the version of events given, which inculpate the accused (the applicant in these proceedings) does not give rise to a reasonable doubt.

5. [215]

   In De Silva [14] the High Court dealt with the Liberato direction in the following terms:

6. [216]

   In the absence of independent evidence which may cast doubt on one version or another, the mere fact that there are two versions given, which are opposed in whole or in part, will not, in and of itself, give rise to a reasonable doubt, assuming, for present purposes that the correct test is applied. Theoretically, it is always possible that a person is lying or mistaken. Alternatively, it is always possible that a person thought to be lying may be reliable and telling the truth. In the absence of independent evidence, the determination of truthfulness and reliability derives from just the kind of advantage that a decision maker has in seeing and hearing evidence.

7. [217]

   There is no error in the approach of the trial judge. Otherwise, I accept the analysis of the evidence of McNaughton J.

8. [218]

   As a consequence of the foregoing, I agree with the orders proposed by McNaughton J. The Court should grant leave to appeal and dismiss the appeal.

9. [219]

   MCNAUGHTON J: I have had the advantage of reading the draft judgment of Leeming JA. Regretfully, I am unable to agree. Unlike Leeming JA, I am of the view that the verdicts of guilty on Counts 2 and 3 are not unreasonable and can be supported having regard to the evidence.

10. [220]

    At trial, as well as giving evidence about the uncontested digital penetration, the complainant gave clear and unequivocal evidence that the appellant briefly performed cunnilingus upon her, and also briefly penetrated her with part of his penis. The arguments that the verdicts are unreasonable are essentially based on a lack of consistency in complaint in relation to the penile penetration (Count 3), and the delay in complaint in relation to the cunnilingus (Count 2).

11. [221]

    Before considering the arguments, it is convenient to set out the relevant principles which relate to the unreasonableness of a verdict.

General principles

1. [222]

   The principles have been conveniently summarised in AS v R [2022] NSWCCA 291 (“AS”) at [100]-[108] (Adamson J). Although these principles refer to a trial by jury, they are relevant to a trial by judge alone:

2. [223]

   I also refer to the following passage of Hamill J in AS at [147]:

3. [224]

   It is also important to bear in mind the observations of McHugh J in M v The Queen (1994) 181 CLR 487 at 534; [1994] HCA 63:

4. [225]

   Further, as I stated in Hossain v R [2023] NSWCCA 18 at [261]:

Consideration

1. [226]

   First, a number of matters can be noted about the complainant’s evidence at trial.

2. [227]

   It is clear that the digital penetration exceeded the other two sexual assaults in both duration and painfulness. Although the complainant was not sure how long the digital penetration lasted, from her account it can be gleaned that it went on for some time. She stated in evidence:

3. [228]

   In answer to a question as to whether she felt any pain while this was happening, the complainant stated:

4. [229]

   After explaining that the appellant then attempted to unbutton her shorts two or three times and failed, but then successfully pushed her legs apart, the complainant gave evidence of further pain resulting from continued digital penetration:

5. [230]

   The complainant was “not sure how long” the appellant had his fingers inside of her when she was in that position with her legs open on the couch. Her concern was that he might “push ahead” and rape her (meaning penile penetration) at that moment. On any view therefore, the digital penetration must have occurred over several minutes.

6. [231]

   The complainant then gave evidence about the cunnilingus, which, in comparison to the digital penetration, took place over a very short time – “A couple of seconds”.

7. [232]

   The complainant stated, after the appellant had moved her back over to the couch so she was facing the couch, “he moved my shorts to the other side, like before. And then he licked my vagina.” She was asked what she could feel when this happened. She stated:

8. [233]

   She confirmed that her eyes were closed.

9. [234]

   She was then asked what happened next. She stated:

10. [235]

    She further stated, “I could feel that his penis was erect”. Via the interpreter, the complainant stated she was scared that he might put his “entire penis” into her vagina, and that she thought she should alert him that she was awake, “so to do that I turn my upper body aside”. The complainant then stated herself, “I wanted to like let him know that I’m awake for not doing more.” She then heard footsteps going to the opposite couch, and then she looked for her mobile phone. She then turned her camera onto a night photography setting and proceeded, as set out by Leeming JA, to obtain a photograph and then conduct a conversation.

11. [236]

    It is important to remember that it was uncontested that the complainant had her eyes closed for the entire period of the assault. In other words, she could not see whether or not the appellant had his penis exposed or not. All of her evidence came about from what she felt.

12. [237]

    Given this, it is significant and powerful that the very first objectively recorded complaints, within minutes of the assault, support the complainant’s account at trial in relation to Count 3.

13. [238]

    The recorded conversation between the complainant and the appellant includes the following:

14. [239]

    The two mentions of “dick” in this recording (particularly the second mention) could only have come about if the complainant had indeed felt the appellant’s penis. She did not see it. She must have felt it. There is no qualification to this account. There was no denial of either allegation by the appellant at this time.

15. [240]

    The next objectively recorded complaint, again within only minutes of the assault, is also clearly powerful support for the complainant’s account at trial. In text messages to her friend, Elena, after stating that she had been “raped”, she texted at 4:29am: “But he put his finger in my pussy” and “And be put his dick”. Again, the mention of the appellant’s penis, within minutes of the assault, could only be because she had felt it. The complainant confirmed at trial that “be” should be read as “he”. Again, it can be observed that there is no qualification to this account.

16. [241]

    The fact that there were two objectively proved complaints within minutes of the assault mentioning the appellant’s penis (which she could not have seen) powerfully supports the account the complainant gave at trial.

17. [242]

    The trial judge observed in her verdict judgment at [82]-[83]:

18. [243]

    In my view, these are cogent observations which accord with my own assessment of the evidence.

19. [244]

    The other complaints made by the complainant were either recounted by others whose first language is not English, or were strangers to the complainant, and in circumstances where the complainant’s first language was not English.

20. [245]

    It can also be noted that at each point where the complainant was giving evidence at trial about the partial penetration of the appellant’s penis, she used the services of the interpreter. Through the interpreter it was conveyed that only part of the appellant’s penis penetrated her vagina. Such an account clearly aligns with the evidence of the position in which she was lying on the couch, and that she still had her loose shorts on.

21. [246]

    In cross-examination, it was suggested that the complainant was mistaken about the appellant penetrating her with his penis. She rejected that. Just before those questions and answers, she stated that, “when an erect penis is inserted into my vagina I was concerned that it may have made me pregnant”, and further, “I knew that he had inserted part of his penis into me.” Again, those portions of the complainant’s evidence were provided using the interpreter.

22. [247]

    Further, the evidence at trial of the police officer who took the complainant’s first complaint at the police station was that “she also said that he inserted his penis into her vagina as well.” This was not suggested in cross-examination to be a mistaken account. He agreed in cross-examination that his first handwritten note which (relevantly) stated “VIC believes possibly penis” was taken “literally as I’m talking with her I’m just trying to get as much as I can in”, but that his handwritten note taken five or ten minutes after, when “I’ve gone back into my notebook and taken more extensive notes” included the following, “[t]he VIC also believes that the [person of interest] inserted his penis inside her vagina.” The police officer referred to that latter note as having been prepared “when I’m able to sit down and take proper notes”.

23. [248]

    In addition, the formal statement the complainant made to police two days after the assaults was also made with the assistance of an interpreter, and the complainant in that statement clearly said she “felt a hard dick being pushed into my vagina from behind […] he thrusted his penis once inside my vagina and I couldn’t stand it anymore”.

24. [249]

    In my view, the comments of the trial judge at [86] of the verdict judgment were cogent and align with my own views. Her Honour stated:

25. [250]

    The accounts the complainant made to strangers which contained equivocation in relation to the penile penetration are reasonably explicable by shock, distress, and embarrassment, combined with the complainant’s limited acuity in English. So far as some of the complaints were made to people whose first language was not English, this is also a factor.

26. [251]

    Further, in my view, the findings of the trial judge at [90] entirely accord with my independent assessment of the evidence at trial:

27. [252]

    The findings of the trial judge at [92] also entirely accord with my own assessment:

28. [253]

    As to Count 2, and the delay in the complainant complaining about the act of cunnilingus, it can be observed that not only was the act of very short duration, she also said that she was particularly ashamed of this act. The credibility of this claim is supported by the observations of the trial judge where her Honour noted the “observable distress on each occasion she addressed this act in her evidence”. Further, the sensations she referred to in her evidence, being that she could feel the wetness and the appellant’s breath, are clearly not able to be confused with digital penetration. As stated by the Crown in its closing address, this “visceral description of physical sensation is precisely in accordance with the alleged act. This act [did] not continue for very long. The complainant stated it only lasted for a couple of seconds. The complainant did not embellish or overstate this. It was short-lived.” The trial judge accepted the complainant’s explanation for her failure to make an early complaint about this act. In my view, the brevity of this act, combined with her shame, readily explains her late complaint.

29. [254]

    It is also apparent that the trial judge properly directed herself in accordance with ss 293A and 294 of the Criminal Procedure Act 1986 (NSW). Those sections read as follows:

30. [255]

    Section 293A was inserted into the Criminal Procedure Act in 2018 by Sch 4[10] of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW). The first iteration of s 293A is mostly similar to the version used today however, it originally did not contain subs 2A.

31. [256]

    Section 293A was introduced in light of the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

32. [257]

    The following statement was made by the then Attorney General, Mark Speakman, during the second reading speech for the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW):

33. [258]

    In any event, it is not the position that the complainant’s account of penile/vaginal assault commenced with equivocation and firmed up over time, as suggested on the appeal. Rather, the complainant’s account commenced with two objectively proved and unequivocal mentions of the appellant’s penis in the complainant’s own words, in circumstances in which she could only have felt it. That is, both digital and penile penetration of the vagina were mentioned almost immediately after the assaults. This aligned entirely with the complainant’s unshaken evidence at trial. It also aligned with the complaint given to the police officer at the police station when she first attended, as recorded in the officer’s “proper notes”.

34. [259]

    The subsequent equivocal accounts to others can properly and reasonably be accounted for because the complainant was a young woman whose first language was not English, trying to convey (without an interpreter) the concept of partial penetration rather than full penetration of a penis, in a foreign country, whilst distressed and embarrassed, and in some instances, making complaints to people whose first language was not English.

35. [260]

    Further, as noted above, the delay in complaint in relation to the cunnilingus can readily be explained by the particular shame felt by the complainant, as well as the brevity of that act. In addition, to the extent that one of the complaints by the complainant to her friend was that the cunnilingus occurred after the penile penetration (rather than before), that is an example of what McCallum JA observed in RA v R [2020] NSWCCA 356 at [45] (as set out above) that “[i]t is not uncommon for witnesses to be certain as to acts or sensations they recall but less certain as to the order in which they occurred.”

36. [261]

    As to the level of inebriation of the complainant, the trial judge observed that on the recording made just after the assaults, the complainant presented as “speaking clearly and with no obvious signs of intoxication”. She had vomited by this stage and had also slept for a number of hours. It can also be noted that blood and urine tests conducted on the complainant only a couple of hours after the assaults were negative for alcohol.

37. [262]

    As to the appellant’s level of inebriation at the time of the assaults, the appellant in his interview admitted that in addition to two or three beers earlier in the afternoon, he had “maybe eight beers” and “a quarter of a bottle of rum” and was “pretty drunk” that night. He had also consumed cannabis. At another point in the interview, the appellant admitted that he was “absolutely pissed” and “passed out sort of thing or fell asleep” when he returned home after the party. Such a high level of inebriation is entirely consistent with disinhibited conduct including brief acts of cunnilingus and penile vaginal penetration from a sexually aroused man of otherwise good character. That the appellant denied the penile vaginal penetration but admitted the digital penetration is consistent with an attempt to downplay his criminality in circumstances where he may well have been of the view that penile penetration was significantly more serious than digital penetration and where the contested acts were relatively quick. Whilst acknowledging that the onus of proof always remains on the prosecution, it can be noted that the appellant’s account was neither under oath nor subject to cross-examination and is thus capable of being regarded as less weighty than evidence of a witness given under oath: Mule v The Queen [2005] HCA 49 at [21]; (2005) 79 ALJR 1573.

38. [263]

    It can also be noted that the trial judge observed the complainant give evidence over a substantial period of time. Her Honour stated at [94]:

39. [264]

    Her Honour found the complainant to be a truthful and accurate witness on both counts. Her Honour stated that in determining the reliability of the complainant, she had regard to a number of criticisms. In finding the offences proven beyond reasonable doubt, her Honour also accepted beyond reasonable doubt that the appellant had actual knowledge of the lack of consent.

40. [265]

    Having independently assessed the evidence for myself, as well as taking into account the advantages of the trial judge in seeing and hearing the witnesses give evidence, I am of the view that the verdicts of the trial judge are not unreasonable and can be supported having regard to the evidence. I would dismiss the appeal.