Maughan v R

1. [1]

   R A HULME J: I have read the judgments of Adamson and Ierace JJ in draft and substantially agree with their analyses. Their conclusions accord with those I have reached upon my assessment of the evidence.

2. [2]

   I particularly endorse what their Honours have said about what I would describe as the futility of assessing the behaviour of sexual assault complainants by reference to stereotypical expectations. The criminal law has moved past the era in which this was often prominent in a defence to a sexual assault allegation. Jurors applying a sensible and mature understanding of human behaviour are far less likely now to be persuaded by such propositions.

3. [3]

   One matter that Ierace J describes as "more concerning" is the complainant's description of her behaviour during the course of the assaults. The concern is that she "awoke" to find the applicant kissing her and that after that incident concluded she again fell "asleep". She then became aware of the applicant touching her.

4. [4]

   Having regard to her description of "drifting in and out" and her evidence of being intoxicated, I do not perceive her account as describing a state of being completely awake and then completely asleep. More likely, she was describing an intoxicated haze in which she slowly came to realise the first activity, lapsed in consciousness when it concluded, and then was roused to greater consciousness by the applicant's further interference with her.

5. [5]

   I agree that the jury's verdicts were not unreasonable or unsupported by the evidence.

6. [6]

   I agree with the reasons of Ierace J that leave pursuant to r 4 of the Criminal Appeal Rules should be refused in respect of Ground 2.

7. [7]

   I agree that although leave to appeal in respect of Ground 1 should be granted, the appeal against conviction must be dismissed.

8. [8]

   ADAMSON J: I have had the benefit of reading the reasons of Ierace J in draft. I agree with the orders which his Honour proposes and, substantially, with the reasons. I wish to add the following further reasons of my own.

9. [9]

   As to ground 2, I am not satisfied that the Crown’s closing address to the jury occasioned any miscarriage of justice. It is of significance that nothing was raised at the time about the closing address and no exception was taken to the trial judge’s summary of the submissions in the summing up.

10. [10]

    Having regard to my responsibility in respect of the unreasonable verdict ground (ground 1), it is appropriate that I confirm that I have read the transcript of the evidence and reviewed the exhibits. There is nothing about the complainant’s account that causes me to have a doubt about the applicant’s guilt, much less one that might not have been removed by the advantage the jury had in seeing and hearing the evidence of the witnesses. As Ierace J has observed, it is neither useful nor instructive to speculate about how a person in the complainant’s position might have reacted in the circumstances of the case as presented by the Crown.

11. [11]

    The jury had the opportunity of seeing and hearing the complainant give evidence about what she experienced and how she reacted. It is plain from the jury’s verdicts that they accepted the complainant as a materially credible and reliable witness. While there are discrepancies in the evidence which have been referred to by the applicant in his submissions, this is not an unexpected consequence of difficulties in recollection over time. The first version given by the complainant to the police shortly after the offending conduct was consistent with the Crown case at trial. It was also consistent with the objective evidence. Further, the complainant gave an explanation, which the jury can be taken to have accepted, as to why she refrained from giving the same detail to her mother: namely, that she was hoping that her mother would be able to guess from her distress what had happened to her.

12. [12]

    There is, in my view, nothing inherently implausible about the complainant having apologised in the morning for what had occurred. It is not uncommon for those who bear no, or little, responsibility to apologise, either because it is an instinctive reaction, the product of insecurity or for some other reason. The jury had an undoubted advantage in assessing the evidence concerning the apology and forming a view about what it meant in all the circumstances. The jury plainly rejected the contention that the complainant was apologising because she was actually responsible for the sexual contact with the applicant and had, as the applicant contended, initiated the contact.

13. [13]

    Nor do I consider the circumstance that the complainant fell asleep again after having been kissed to cast any doubt on the veracity of her evidence. She was affected by alcohol and in shock. She may well also have been in denial about what had occurred and reluctant to believe that it had actually happened. There is no such thing as an “objective” or even typical response to that kind of event since individuals respond differently to such events. The jury can be taken to have understood and appreciated that the complainant responded in a particular way which they must have regarded as consistent with the applicant’s guilt of the offences charged.

14. [14]

    For these reasons, I am not persuaded that ground 1 has been made out.

15. [15]

    IERACE J: On 30 January 2019, the applicant, Kennith Maughan, was indicted at trial before a jury at Newcastle District Court of one count of indecent assault and one count of sexual intercourse without consent, pursuant to ss 61L (since repealed) and 61I respectively of the Crimes Act 1900 (NSW). On 11 February 2019, the applicant was convicted of both counts. On 1 May 2019, on the first count, which had a maximum penalty of 5 years imprisonment, he was convicted without any further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). On the second count, which had a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years, he was sentenced to 4 years’ imprisonment commencing on 1 May 2019, with a non-parole period of 2 years, expiring on 30 April 2021. The total term will expire on 30 April 2023.

16. [16]

    The applicant filed a notice of appeal against his conviction, advancing two grounds, which are best understood against an overview of the factual background and issues in the trial.

The factual background

1. [17]

   On the Easter long weekend of 2016, a party of 15, comprising a mixture of adults, teenagers and children, gathered at a remote rural location known as the Barrington Country Retreat in the Hunter region of New South Wales. They stayed in two houses on the property, one bigger than the other and having a communal kitchen and lounge area where they would all gather at night. Its furnishings included a number of lounge chairs and a pool table. Five bedrooms radiated from this communal area, three with double beds and two each with two single beds. The weekend away was organised by two women who were close friends, VD and Tracey Woelms, and those in attendance were members of each of their extended families.

2. [18]

   The applicant, who was then aged 60, was the husband of Helen Ritter, who was one of two of Tracey Woelms’ sisters who were present, the other being Linda Allen. Also present was Linda Allen’s daughter Kate Allen, Kate’s partner and their young daughter. The complainant, who was aged 19 at the time, was a daughter of VD. Others in that family group included the complainant’s younger sister, AD, who was then aged 17, VD’s partner RH, and his four children, the oldest being a daughter SH, aged 15 at the time. The applicant and the complainant had not met before that weekend.

3. [19]

   On the Friday night, being Good Friday, they all gathered in the larger house for dinner, after which they played various games and pool. The adults, including the applicant and the complainant, had alcoholic drinks. The complainant’s evidence as to her alcohol consumption over the night was that she had two vodka and watermelon “cruisers”, one before and the other during dinner, and thereafter she drank between three and seven vodka and sodas, pouring the vodkas herself from a 750ml bottle that she brought with her and that only she accessed. She noted the next day that she had drunk “almost half” of that bottle.

4. [20]

   They went off to bed at various times over the course of the night until, at around 1:30am, only two remained: the applicant and the complainant. By then, each of the five adjacent bedrooms was occupied by at least one person.

5. [21]

   The complainant’s evidence from that point was to the effect that they played one or two games of pool and then left the lounge area for an adjoining veranda, explaining: “I think [the applicant] was having a cigarette or something, so we went on the verandah”.

6. [22]

   They sat on the verandah for about ten minutes, talking. At one point, the complainant complimented the applicant’s wife, Ms Ritter. In evidence, the complainant said:

7. [23]

   The complainant said that she found that “quite weird” and went back inside. She was feeling “pretty drunk” and needed to sleep. She was supposed to have set up a bed earlier in the evening in a room with two single beds occupied by her sister AD and stepsister SH, but had forgotten to do so. The only spare single bed was in a bedroom occupied by Linda Allen, but the complainant did not know her and preferred to not share a bedroom with her. There was a rug on the lounge room floor, and she decided to sleep on that. She lay down and fell asleep, with the light still on.

8. [24]

   The complainant awoke to the applicant kissing her on the mouth. She was on her back and the applicant was lying to her right side. The light was off, but there was some light from a pilot-type light on a television. The complainant said she was half asleep, confused and in shock. She lay still and felt that she could not move. After she had been awake for about five seconds, she turned her head to the left, and the kissing stopped. This incident was the basis of the count of indecent assault.

9. [25]

   The complainant again fell asleep; she was “drifting in and out”, because she was intoxicated. She then became aware of the applicant touching her. She was wearing a loose long-sleeve shirt, high-waisted shorts and hip-length briefs. He was still on her right, leaning on his left arm and rubbing his right hand over her shirt, over her stomach and chest. He then moved his hand into her shorts, under her briefs, shuffling in closer as he did so, and inserted two fingers into her vagina. She grabbed his wrist and pushed it away. The insertion by the applicant of his fingers in the complainant’s vagina was the basis of the second count. In relation to both counts, the Crown case was that there was an absence of consent since the complainant was asleep.

10. [26]

    The complainant got up and stood facing and leaning against a lounge, which was at least a two-seater lounge in length. She felt the applicant touching the back of her thighs. She sat cross-legged on the other end of the lounge and thought she again fell asleep.

11. [27]

    She was next aware of the voice of Ms Ritter, yelling: “Ken, what are you doing?” (with Ken being a reference to the applicant). She could not see Ms Ritter, and realised that the applicant was in front of her, blocking her view of Ms Ritter. She thought she said “sorry”, as an instinctive reaction. The applicant and Ms Ritter went into their bedroom. The complainant moved to another lounge in the room and fell asleep.

12. [28]

    Early the next morning, the complainant was woken by Linda Allen, who moved the complainant into her bedroom so that she could continue to sleep undisturbed. The complainant still felt intoxicated and fell back asleep, until she was woken by Ms Ritter. The complainant’s evidence was that:

13. [29]

    The complainant agreed that in her statement to police she had said to Ms Ritter, “I’m so sorry for what I’ve done”. She said that when Ms Ritter first started talking to her, she did not realise that the behaviour that Ms Ritter was referring to involved the applicant. The complainant said: “She didn’t mention Ken till the last sentence before she kissed my forehead and that’s when she said ‘Me and Ken are going to let it go.’” She described what happened when she arrived at the other house, where her mother VD, her mother’s partner RH and his four children were staying:

14. [30]

    VD’s evidence of what she recollected the complainant telling her at that point was a more amplified version. VD said:

15. [31]

    Ms Woelms said that she was called across to the other house and spoke to the complainant:

16. [32]

    The applicant gave evidence that he had one or two light beers before dinner and two glasses of wine with dinner. After dinner, he had “a few Sailor Jerrys … and dry”, which he described as “a dark rum”, which he had with dry ginger ale.

17. [33]

    The applicant said that he and the complainant were alone from about 2:00am. He had a few more “Sailor Jerrys” after the others had gone to bed. He did not pay attention to whether or what the complainant was drinking, other than at one point they “cheers-ed” each other, but he did not know what was in her glass. They played pool for about half an hour. After the last game, he was tired and wanted to go to bed. At no point did they go onto the verandah. He was not a smoker. He turned off the light over the pool table, got a glass of water to take with him and asked her if she wanted one, which she did.

18. [34]

    The applicant said that:

19. [35]

    The applicant said that Ms Ritter told him to go to bed, which he did. There was a conversation between her and the complainant, but he could not hear what was said. The next morning, Ms Ritter asked him what was going on the night before. The applicant said:

20. [36]

    Ms Ritter’s evidence was that she woke up, realised that the applicant was not in the bedroom, and got up. She opened the door and heard whispers. She noticed movement from the other side of the lounge room and saw the applicant sitting on a lounge and a woman kneeling before him. There was moonlight from a “full moon” coming in through glass doors and there was a light on in the kitchen area. She could not make out what was being said. The woman lifted her torso upright and Ms Ritter recognised the complainant. She pretended she had just walked in on the scene by asking, “Who’s that?” The applicant put his hand on the complainant’s shoulder and said, “Up you get”. Ms Ritter walked over to them. The applicant stood up. Ms Ritter gestured to him and said, “What the fuck?” He said nothing and she said: “Get to bed”. He then went to their bedroom. The complainant immediately said: “It wasn’t him. It wasn't him. It was me. It was me. I’m sorry. Please don’t be angry at me”. The complainant put her head in her hands and Ms Ritter said to her, “It’s all right. I’m not angry at you but I think you should get up and I think you should go to bed”. The complainant was huddled over with her hands in the area of her waist, out of view. She then stood up, threw her arms around Ms Ritter and again said, “It wasn’t him. It wasn’t him. It was me. It was me. I’m so sorry. Please don’t be angry at me”. Ms Ritter pulled the complainant’s arms off her, made the complainant look at her, and said, “I am not angry at you but I think you need to go to bed … let’s go and find you a bed”.

21. [37]

    Ms Ritter took the complainant by the hand and led her towards the bedroom where Linda Allen was sleeping. The complainant said, “I don’t want to sleep in there”, and Ms Ritter said, “Okay. I will make you a bed up in this room”, and she turned around to go into the room where her sister AD and SH were and opened that door. The complainant also refused to sleep in that room, so Ms Ritter led the complainant to a lounge that was immediately outside the bedroom used by her and the applicant, got her a pillow and a blanket and the complainant lay down there.

22. [38]

    Ms Ritter attributed to the complainant a degree of contrivance in her response to Ms Ritter’s intervention. Ms Ritter said:

23. [39]

    And later, Ms Ritter said of the complainant:

24. [40]

    Ms Ritter said that during the night she got up to check on the complainant, because she was concerned for her mental health, in light of her sister, Ms Woelms, having told her on the Thursday night that the complainant had mental health issues. She saw that the complainant was watching “a video clip or a movie” on an electronic device. The complainant in evidence denied that she was awake.

25. [41]

    Ms Ritter gave evidence that the following morning she asked the applicant what he had been doing. The applicant replied to her that the complainant:

26. [42]

    Ms Ritter confirmed she woke the complainant the next morning, again wanting to give her reassurance because she was concerned about the complainant’s mental health. She said to the complainant:

27. [43]

    According to Ms Ritter, the complainant reacted as follows:

28. [44]

    In response, Ms Ritter said to the complainant:

29. [45]

    Later that morning, following the complainant’s complaint to her mother, there was a heated confrontation in the bigger house (“the meeting”). Present were VD, Ms Woelms, Ms Ritter and the applicant. VD had left the complainant behind in the other house. VD’s evidence was that Ms Ritter said that she had heard something and came out. She saw the applicant and the complainant sitting on separate lounges and said to the applicant, “What are you doing”, and told them to go to bed. Ms Woelms also gave evidence that Ms Ritter had said she saw them sitting on separate lounges. Ms Woelms asked the applicant what he had done, and he replied, “I’ve done nothing. Nothing happened”. VD then said, “What the hell have you done to my daughter? I’ve got a distraught daughter. You must've done something”, to which he replied, “Okay, I kissed her”. Ms Woelms then demanded that he leave. The applicant and his wife packed up immediately and left the property.

30. [46]

    The applicant’s evidence as to what he said at the meeting was, “Well, I kissed her. I did not sexually assault her”. This version was supported by Ms Ritter, but had not been put to either VD or Ms Woelms. In her evidence, Ms Ritter denied that she had said that she saw the applicant and complainant sitting on separate lounges. Her evidence as to what she said was as follows:

31. [47]

    As well, counsel for the applicant brought out that Ms Ritter had included a version in her statement to police to the effect that she told VD and Ms Woelms that on the previous night, the complainant had said “sorry” to her. Neither of these versions was put to VD or Ms Woelms, and they were not corroborated by the applicant’s evidence.

32. [48]

    The complainant’s evidence was that over the Saturday morning, her memory of what had happened the night before returned. She recalled more detail while her mother was at the meeting, including the sexual intercourse. She said that when her mother returned:

33. [49]

    VD gave evidence that the following day, being Easter Sunday, the complainant told her that she was “remembering everything” and then told her mother everything she remembered to that point. VD said that, a month later, she made notes of that conversation and gave them to police, who incorporated the contents into a statement by her dated 25 June 2016. Parts of the content of that conversation were led from VD, by consent. VD’s account of what the complainant said included that the applicant made her a drink before they went onto the verandah, that when she woke on the rug the applicant was on top of her trying to kiss her and that she moved her head from side to side to stop him. In response to VD telling her that Ms Ritter had said she came into the room and saw them sitting on different lounges, the complainant responded: “That didn’t happen I don’t remember Helen coming into the room I just remember Helen coming into me in the morning”.

34. [50]

    The earliest record of what the complainant told police, which was also the first contemporaneously-made record, came from the evidence of Sergeant Karina Nixon, who said that on Easter Monday, in response to a phone call, she and a colleague attended the complainant and her mother and made a notebook record of her complaint. The notebook entry was read in its entirety in the trial. It was as follows:

35. [51]

    Two statements of agreed facts, pursuant to s 191 of the Evidence Act 1995 (NSW), were tendered. One of the statements included the following sentence:

36. [52]

    The statement noted that other unknown contributors’ DNA were also located on the two garments and that it was possible that the contributions by the accused and others were as a result of secondary transfer.

37. [53]

    The applicant was a retired dentist with no prior criminal convictions.

38. [54]

    The applicant’s sister gave evidence of his good character. She worked as a teacher and was married with five children. She described the applicant as truthful and “a kind, generous, loving brother”. She had been to many parties with the applicant and had not seen him acting inappropriately with women of any age. In her experience, he acted respectfully towards women and the allegations were very inconsistent with his character as she knew it.

39. [55]

    The Crown attacked Ms Ritter’s credibility, suggesting that her evidence of what she saw in the lounge room was deliberately untruthful, in order to assist the applicant. The version by VD and Ms Woelms of Ms Ritter telling everyone at the meeting that the applicant and the complainant were on “separate lounges” when she entered, was exculpatory of the applicant and inconsistent with her evidence of what she saw.

40. [56]

    Ms Ritter said that the following day, being Easter Sunday, the applicant told her that he had touched the complainant’s top and:

41. [57]

    Ms Ritter agreed that, when police took her statement in September 2016, she had not included this conversation, nor had she included it in a handwritten account that she made around 30 March 2016 and sent to the applicant’s solicitors.

The grounds of appeal

1. [58]

   The applicant relied upon the following grounds of appeal:

2. [59]

   It is convenient to consider ground 2 before ground 1.

3. [60]

   The four aspects of this ground are founded on alleged shortcomings in the Crown’s address, to which objection was not taken at the time. Accordingly on this ground, pursuant to r 4 of the Criminal Appeal Rules (NSW), leave is required to appeal.

4. [61]

   The submissions in support of this ground do not identify the relevant passages in the transcript to which exception is taken. Although there is a reference in the ground to the word “shy” in quotation marks, the Crown appears not to have used that word in his address at all. Otherwise, the first three aspects of the ground, being 2(a)–(c), appear to relate to the following passages from the transcript of the Crown’s address:

5. [62]

   And later:

6. [63]

   In written submissions, the applicant contended that the Crown was effectively inviting the jury to ponder “Why would such a nice girl do this?”, in relation to the applicant’s account of the complainant revealing her personal problems and acting in a sexually provocative manner towards him, and that to do so reversed the onus of proof.

7. [64]

   In my opinion, neither of the above passages extracted from the Crown address could be accurately paraphrased, in part or as a whole, in those terms. Rather, the Crown specified aspects of the complainant’s presentation as a witness and of the descriptions and evidence of her behaviour by those who knew or had observed her, that were at odds with the behaviour attributed to her, in terms of what she said and did, by the applicant when they were alone. That was an exercise in plausibility that the jury were entitled to do, in determining whether the applicant’s account, either by itself or in conjunction with other evidence, left them with a reasonable doubt as to his guilt on either count. Such an exercise does not constitute a reversal of the onus of proof in relation to the counts on the indictment. Indeed, it would have been artificial for the jury to ignore any significant conflicts in the evidence between the complainant’s behaviour as described by the applicant, and their independent assessment of her, having regard to the evidence.

8. [65]

   The relevant parts of s 293 of the Criminal Procedure Act 1986 (NSW) are as follows:

9. [66]

   The term “prescribed sexual offence” is defined in s 3 of the Criminal Procedure Act 1986 to include offences pursuant to ss 61I and 61L of the Crimes Act.

10. [67]

    It is not apparent how the applicant submits that s 293(3)(a) was relevant, since he has not explained what precise application would have been made, had he known in advance what the Crown intended to submit to the jury. Assuming that the Crown had alerted the defence at the outset of the trial of the nature of its intended ultimate submission to the jury in the extracted passages, the applicant would first have had to establish that, using the words of ground 2(c), those passages:

11. [68]

    Such an application would not have been likely to succeed. The term “shy” was not used. The submission assumes that a person who is “quiet”, “reserved” and/or “timid” is necessarily sexually inexperienced, which does not follow. The term “girl”, as defined in the Australian Oxford Dictionary and the Macquarie Dictionary, includes the meaning “a young woman”. While I would not endorse the term “girl” rather than “woman” to describe a 19-year-old female, it has accepted currency in the community as meaning a young woman, which the complainant was. Further, in the excerpted four paragraphs, the Crown twice referred to the complainant’s age at the relevant time, being 19 years old.

12. [69]

    It was open to the Crown to submit to the jury that, applying their life experience, it would be surprising for the complainant, aged 19, to be sexually attracted to the applicant, aged 60, particularly to the point of proactively tongue-kissing him and inviting penile-vaginal sexual intercourse.

13. [70]

    Ground 2(d) relates to an aspect of the cross-examination of the applicant, as to why he did not tell the complainant’s mother and others at the meeting that the complainant had initiated the sexual contact between them. The effect of his response was that firstly, it was inappropriate in view of the hostility being levelled at him at the meeting, particularly from Ms Woelms. Secondly, because Ms Woelms was yelling at him, there was no opportunity to do so. It was not in dispute that Ms Woelms was very hostile to the applicant at and after the meeting, and that once he admitted kissing the complainant, she told him to immediately leave the premises.

14. [71]

    In his address, the Crown said:

15. [72]

    In her address, counsel for the applicant dealt with the issue succinctly:

16. [73]

    In my opinion, the cross-examination of the applicant on that issue, and the manner in which the Crown addressed the jury on it, was not particularly probative of the factual issues in dispute and was of little assistance to the Crown case. Although tactically questionable, it was open to the Crown to test his assertion that, as a person of good character, his account was to be preferred, including his relevant behaviour at the meeting. A submitted inconsistency between his behaviour and what the jury might expect from the applicant as a person of prior good character did not imply that the applicant was in fact a person of bad character.

17. [74]

    In his address, the Crown fairly conceded the relevance of good character to the jury’s task, which was reinforced by a direction by the trial judge early in the course of his summing up.

18. [75]

    In written submissions, ground 2 was developed to contend that in the same passages the Crown also misrepresented the evidence as to the complainant’s sobriety. The applicant submitted that there was no evidence to the effect that she was sober at the relevant time, and therefore, her manner and behaviour when she is sober was irrelevant.

19. [76]

    The witnesses agreed that all the adults were drinking alcohol during the night, and were affected to varying degrees. There were various descriptions of the complainant’s state of sobriety during the evening. Her mother, who retired to the other house at around 11:30pm, described the complainant as “tipsy” at that point. Ms Woelms went to bed shortly after VD left and described the complainant before she left:

20. [77]

    Linda Allen thought the complainant was “intoxicated”, before her mother left the house. Following the departure of VD, and Ms Ritter retiring to her bedroom, the applicant and complainant played pool with Linda Allen and her daughter Kate Allen. The complainant’s evidence was that she continued to drink vodka during these games. Kate Allen thought she was drinking water, other than dark-coloured drinks that she saw the complainant and applicant “cheers-ed” each other with. She said that she retired after her mother, but had a cigarette on the verandah first.

21. [78]

    Linda Allen said that she did not notice the complainant drinking alcohol during these pool games, but assumed that she did. She went to bed about two hours after VD left the house, thus suggesting a time of around 1:30am, and described the complainant as “fine” at that time.

22. [79]

    Three witnesses gave evidence as to the complainant’s apparent state of sobriety at the time of the alleged assaults: the complainant herself, the applicant and, immediately after the assaults, Ms Ritter. As noted earlier, the complainant’s evidence was that she was “drunk”.

23. [80]

    The applicant was asked how the complainant appeared, in terms of her sobriety, at about midnight. He said: “She was, you know, merry, tipsy, I don’t know”. He was asked how she appeared around 2:00am, and he replied: “Oh she seemed fine. She was having a good time. She was playing [pool] better than me”. He was then asked how she was at the time he got the glasses of water, which on his account was immediately before the conversation that led to the sexual contact:

24. [81]

    Ms Ritter’s evidence was that over the evening she saw the complainant have three to four alcoholic drinks. She said that when she (being Ms Ritter) went to bed, which was as VD was leaving to retire to the other house, being about 11:30pm by VD’s evidence, Ms Ritter “didn’t think of [the complainant] as being intoxicated”. As to the time she observed and had a conversation with the complainant in the lounge room immediately following the sexual contact with the applicant, she again gave the same answer. She was asked:

25. [82]

    Although neither the applicant nor Ms Ritter described the complainant as “sober”, their evidence, contrary to that of the complainant, was to the effect that at that time, her functioning was not apparently affected by alcohol. It was open to the Crown to invite the jury to contemplate whether, based on their assessment of the complainant, there was a reasonable possibility that she may have acted in the manner they described, if she was had been in that state of sobriety.

26. [83]

    The Crown’s submissions were intended to address the defence scenario that the complainant spoke candidly to the applicant about her personal problems, instigated tongue-kissing and proactively sought sexual intercourse with the applicant at a time when her capacity to make such decisions was unaffected by alcohol, as implied by the evidence of the applicant and Ms Ritter. Indeed, the defence case as advanced by counsel for the applicant, Ms Evers, was that the complainant was either sober or approaching sobriety at the time of the sexual contact. In her opening address to the jury, she said:

27. [84]

    Counsel for the applicant put to the complainant in cross-examination that after her mother went to bed, she drank only water and “started sobering up”, having had only one alcoholic drink subsequently, and at the time she and the applicant were playing pool, she was winning because she was “sobering up”. In an exchange with the trial judge before addresses, counsel for the applicant said:

28. [85]

    Following the Crown’s address, counsel for the applicant did not make a submission objecting to the aspect of the Crown’s address now complained of and, contrary to what she had said to the trial judge before addresses, submitted to the jury:

29. [86]

    The trial judge, in summing up to the jury, concisely summarised the submissions of both parties on the point, to which no exception was taken by them. The jury deliberated from 1:13pm on Tuesday 5 February 2019 until the following Monday morning and had the trial transcript. In my opinion, this aspect of ground 2 does not give rise to a concern that the jury would have misunderstood the evidence as to the complainant’s state of sobriety or the submission that the Crown sought to make.

Conclusion in relation to ground 2

1. [87]

   The applicant was represented by a very experienced junior counsel, in a trial that involved less than five days of evidence. At the conclusion of the Crown’s address, none of the matters in ground 2, including the fifth matter raised in submissions, was raised with the trial judge. Two were dealt with in the applicant’s address to the jury. Ground 2 in each of its aspects is without substance and in my opinion, leave to appeal should not be granted.

Ground 1: The convictions cannot be supported having regard to the evidence

1. [88]

   This ground does not involve “a question of law alone” and therefore the applicant requires leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The principles that apply to an unreasonable verdict ground of appeal are well known. In Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 Bathurst CJ said (Johnson and Fullerton JJ agreeing) at [84]-[85]:

2. [89]

   The applicant advanced a theory at trial that the complainant had deliberately fabricated her allegations of him sexually assaulting her, motivated by her embarrassment at her sexual involvement with the much older applicant, who was present with his partner Ms Ritter, and fear that she would tell her mother. In written submissions in respect of this ground, the applicant submitted that aspects of the complainant’s evidence were implausible, contradictory or contrary to other evidence in the trial that was reasonably reliable, and that when considered in combination, it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty of the offences.

3. [90]

   The complainant said that she and the applicant went onto the verandah after playing pool, while the applicant said they did not. The applicant sought to discredit the complainant’s explanation that they had gone onto the verandah so that the applicant could have a cigarette, by eliciting convincing evidence from Ms Ritter and her family that he was not a smoker. However, the complainant’s evidence that the reason they went onto the verandah was so that the applicant could have a cigarette was only in absolute terms when it was put to her in leading form. In her evidence in chief, she was uncertain, saying: “I think [the applicant] was having a cigarette or something, so we went on the verandah”. When it was put to her that the applicant was not a smoker, she said: “Okay, well we were on the verandah. I’m not a hundred per cent sure if he was having a cigarette or not, I guess. I thought he was”.

4. [91]

   Accordingly, I do not regard the complainant’s evidence as to why they went on the verandah as being contradicted by other evidence.

5. [92]

   The applicant’s version did not involve the complainant either sleeping or lying on the floor at any stage. The applicant suggested in written submissions that it was implausible that the complainant would have lain on the rug to sleep, since there was a spare bed in Linda Allen’s room, and that the complainant’s explanation in evidence as to why she did not was not credible. That explanation was that she “barely knew Linda”, since she had met Ms Allen for the first time that day, and she “didn’t want to hog her room when she was in there”. I also note there was likely a significant age discrepancy, as Ms Allen was there with her daughter and grandchild.

6. [93]

   It was suggested that the complainant could have slept in the bedroom occupied by AD and SH. As I noted earlier, the complainant’s evidence was she had intended on sleeping in there and had meant to make up a bed on the floor in that room, but had not done so. AD was not asked in cross-examination if there was a spare bed available in that room. In any event, Ms Ritter’s evidence was that following her intervention in the lounge room, the following happened:

7. [94]

   Therefore, there was no evidence contradicting the complainant’s account that there was no bed made up for her in that room.

8. [95]

   The applicant accepted the evidence of Ms Ritter that after her intervention in the lounge room, she tried to encourage the complainant to sleep in either Linda Allen’s room or that of AD and SH, but the complainant declined both options, instead preferring a chair in the lounge room. That evidence is strikingly consistent with the complainant’s account that shortly before, when she came into the lounge room from the verandah, she preferred sleeping in the lounge room to either of the two proposed alternatives.

9. [96]

   As to the plausibility of the complainant choosing a rug to a lounge chair, the complainant explained that she was drunk, urgently needed to sleep, usually slept without a pillow and preferred a hard surface. That evidence was not challenged in cross-examination of her sister AD or mother VD, as to their knowledge of the complainant’s sleeping habits.

10. [97]

    The applicant submits that, on the complainant’s version of what occurred, it was physically possible for her to call out for assistance from her family and others who were sleeping metres away and her failure to do so was inconsistent with her having been sexually assaulted. On her version, it is also implausible that she did not tell the applicant to stop, given that it took five seconds for her to turn her head to stop the kissing and some minutes before she pushed away the applicant’s hand.

11. [98]

    In the same vein, the applicant submitted that if the complainant had been sexually assaulted, then following the intervention of Ms Ritter, she would not have volunteered to spend the balance of the night alone, immediately outside the applicant’s bedroom and in the same room where the assault had occurred, particularly when she had other, safer, options. However, in order to test the hypothesis, if the jury accepted the complainant’s evidence that she was very intoxicated and moments before had been drifting in and out of sleep, that had to be factored in on her decision-making capacity at that time.

12. [99]

    Caution must be exercised in gauging the parameters of the likely behaviour of a sexual assault victim vis-à-vis the perpetrator, during and following the assault. Behaviours that may not seem sensible, logical or otherwise plausible to those who have not endured that experience may not necessarily be indicative of implausibility or inconsistency with an allegation of sexual assault: see Rao v R [2019] NSWCCA 290 at [98]. In this case, the complainant explained that when she realised what was being done to her by the applicant, she experienced shock which rendered her unable to speak or move. The movements she eventually made were minimal, and even so, she had no recollection of how she made her way from the rug to the lounge chair. In the experience of criminal courts, those who work with sexual assault victims and as increasingly understood by the broader community, such a reaction is a common feature of the reaction of a victim to sexual assault, and therefore a claim of shock, immobility and silence by a sexual assault complainant is not necessarily indicative of implausibility.

13. [100]

    The applicant submitted that the evidence of others as to how much alcohol was consumed by the complainant, and her apparent state of sobriety, was inconsistent with her claimed state of drunkenness at the time of the sexual contact with the applicant. Multiple witnesses gave evidence that the complainant had alcoholic drinks that evening, including corroborative evidence of her having cruisers and other mixed vodka drinks. However, she was not described by any witness as being “drunk”, or otherwise heavily inebriated.

14. [101]

    I have already reviewed the evidence relating to the extent to which the complainant consumed alcohol that evening, and her state of sobriety at the time of the sexual contact. Of particular significance is the complainant’s evidence that she continued to drink vodka while she and the applicant played pool and while they were on the verandah, which was not contradicted by the applicant. That period of time is not quantified in the evidence, but on the applicant’s version, it was long enough for one game of pool and on the complainant’s version, one or two games and the period on the verandah. As well, there was the drink with which they “cheers-ed” each other.

15. [102]

    Ms Woelms’ evidence supported the complainant’s account that only she drank from her 750ml bottle of vodka. The complainant’s evidence was that her bottle had been full at the beginning of that night and the next morning, she noticed it was almost half empty. Accordingly, the complainant’s evidence that she was drunk when she lay on the rug, and indeed was still drunk when she awoke the next morning in the bedroom in which Linda Allen had slept, is consistent with her evidence of what she drank the night before. To the extent that Ms Ritter’s evidence strongly implied that the complainant was not drunk, either when Ms Ritter intervened in the lounge room or when they had a conversation the next morning, the jury were entitled to entertain reservations as to the reliability of Ms Ritter’s evidence.

16. [103]

    The applicant submits that the complainant would not have apologised to Ms Ritter, both immediately following the sexual activity and the next morning, if she did not believe that she was at least jointly responsible for that activity.

17. [104]

    The apology made by the complainant when Ms Ritter intervened in the lounge room, according to Ms Ritter, was: “It wasn’t him. It wasn’t him. It was me. It was me. I’m sorry. Please don't be angry at me”. The terms of that apology involved an exoneration of the applicant as well as an acceptance of responsibility. According to the complainant, the words she used were: “Sorry”, or “I’m sorry for what I’ve done”, said by her to have been uttered in a state of intoxication and tiredness, and from habit. This is supported by the complainant saying: “When I know I haven't done something right, I just always think it’s best to say sorry”. Her evidence was that her apology repeated the next morning was one word: “Sorry”.

18. [105]

    Equally, however, it might be said that if the complainant had fabricated the sexual assaults, it was hardly in her interest to concede an apology to Ms Ritter, but her first complaint to her mother, made minutes after that conversation with Ms Ritter, included the apology she had just made to her, even though she had no memory of what she was apologising for. Her explanation on her version that she presumed she must have said something inappropriate is not implausible, in my view, given what she recalled Ms Ritter saying to her and that she claimed at that point to have no memory of the night’s events, but was aware that she had been drunk.

19. [106]

    The jury were entitled to reject the evidence of what Ms Ritter claimed in her statement to police that the complainant had said to her that morning, particularly as the complainant had not been given the opportunity to comment on it.

20. [107]

    There are two aspects of the evidence that are more concerning, in my opinion. The first concerns the complainant’s evidence of her response to the assaults. The complainant’s evidence was that, when she awoke on the rug to the applicant kissing her on the mouth, she was in shock and could not move or speak, although after some seconds she managed to turn her head, which had the desired effect of causing the applicant to stop kissing her. It is entirely plausible that in that situation, waking to the realisation that she was being kissed on the mouth would evince a mental and physical response of shock and immobility. However, one normally associates the experience of shock as an adrenaline response. The complainant’s evidence was that having turned her head, she again fell asleep which, on its face, might be thought to be an unlikely transition in a matter of seconds from the experience of shock. She did not know how long she was asleep for, describing the experience as “drifting in and out”. Similarly, after the sexual intercourse which prompted her to stand up, at which point the applicant felt the back of her thighs, the complainant sat on the other end of the lounge chair and again fell asleep.

21. [108]

    To the extent that the proposition of transitioning from shock to sleep in a matter of seconds appears contradictory, it is reconciled by her evidence as to the degree of her inebriation and tiredness. The complainant’s account that on re-entering the lounge she realised she had to sleep immediately, to the extent that she effectively dropped down on the lounge floor and fell asleep, is consistent with her evidence of experiencing a significant level of inebriation as well as tiredness, as was her behaviour the following day. She said that when she was woken the next morning by Ms Ritter, she was still “drunk”. Her mother gave evidence that when she returned from the meeting and spoke with the complainant, the complainant said she had been vomiting. The complainant said that she slept much of that day, being Easter Saturday. Accordingly, the complainant’s evidence of inebriation and tiredness when she fell asleep on the rug, if accepted, resolves any concern arising from her evidence that twice during the incident, she moved from shock into sleep.

22. [109]

    The other evidentiary issue was the reliability of the complainant’s evidence as to what occurred on the Friday night after everyone except she and the applicant had retired, given that she awoke on Easter Saturday morning with no memory of those events, and that her memory of it was restored subsequently. This issue was not a feature of the defence case at trial; to the contrary, the applicant submitted to the jury that from the time she was woken by Ms Ritter, the complainant well-remembered what had transpired the night before and chose to concoct a story to mask her role as the instigator of the sexual activity between her and the applicant. However, as part of this Court’s independent assessment, if there is evidence that on its face raises an issue of reliability, this Court must be independently satisfied that the complainant’s account was reliable, at least with respect to the facts in issue in respect of each count.

23. [110]

    The complainant’s evidence was that she recalled the kissing and the sexual intercourse “probably an hour” after she first spoke to her mother on Easter Saturday morning, which was by the time that her mother returned from the meeting. However, her mother’s note of what the complainant told her on Easter Sunday, although not made contemporaneously with the conversation and not the subject of cross-examination of the complainant, was to the effect that by then the complainant still had not recalled Ms Ritter’s intervention. By the next day, Easter Monday, that was part of the account the complainant gave to police.

24. [111]

    Prior to speaking to the police on the Easter Monday, the complainant’s only awareness of the applicant’s account was the feedback from her mother in respect of what was said at the meeting, being that he kissed her, and on the applicant’s version of the meeting, had not sexually assaulted her. For reasons earlier expressed, the jury were entitled to place little weight on what Ms Ritter told police that she had said at the meeting.

25. [112]

    The complainant’s account, given as early as on the Easter Monday to police, was partly corroborated by the agreed statement of facts as to the results of the testing of DNA swabs taken from her clothing, as well as the evidence of the applicant as to the sexual contact between them, which in itself is indicative of the reliability of the complainant’s independent recollection. The applicant’s evidence confirmed that he had placed his hand inside her shorts and touched her in the area towards her crotch, thus corroborating the complainant’s recollection to that limited extent.

26. [113]

    In her evidence, the complainant purported to exercise a degree of care about what she recalled, and what she did not. She explained there remained a gap in her memory from when she was lying on her back on the rug following the sexual intercourse, to when she was standing and leaning against the lounge.

27. [114]

    The crucial aspect of the complainant’s evidence as to what occurred was her recollection of the acts that founded each count and whether she had consented to them. Her evidence was that she first had an image or “flashback” of her and the applicant on the lounge shortly after Ms Ritter mentioned “Ken”, in Linda Allen’s bedroom, and immediately knew she had not consented, and the precise acts of both counts came to her within the first hour. Her evidence of an immediate recollection of there being an absence of consent was corroborated by the terms of complaint that she made to her mother when she first spoke to her, on Easter Saturday morning. She gave a credible explanation as to why she did not tell her mother precisely what had occurred, when she first recalled it shortly afterwards, which was essentially because she was embarrassed. The defence had available to it the notes made by her mother concerning the account given by the complainant on Easter Sunday. There was no suggestion in cross-examination that it did not include the kissing and the sexual intercourse. In any event, they were part of the account she gave to the police on Easter Monday.

28. [115]

    In his summing up, the trial judge repeatedly referred to the necessity for the jury to be satisfied not only as to the truthfulness of the complainant’s evidence on the facts in issue, but also its reliability, on one occasion referring to it as central to their task:

Conclusion in relation to ground 1

1. [116]

   The jury, properly instructed, clearly found the complainant’s evidence to be reliable. Having read the trial transcript and had regard to the other evidence in the trial, I am left in no doubt as to the reliability of the complainant’s evidence on the facts in issue and the reasonableness of the verdicts in respect of both counts. In respect of ground 1, I would grant leave to appeal and dismiss the appeal against conviction.

2. [117]

   I propose the following orders: