Poveda v R

1. [1]

   STERN JA: On 20 June 2024, after a trial which began on 22 May 2024, the applicant, Jonnathan Santiago Amaya Poveda, was convicted by a jury of 12 on two counts of sexual intercourse without consent, knowing the other person does not consent, contrary to s 61I, and two counts of intentional sexual touching without consent, knowing the other person does not consent, contrary to s 61KC(a), of the Crimes Act 1900 (NSW). He was also acquitted on one count of sexual offending. On 13 September 2024 the applicant was sentenced to an aggregate term of 5 years’ imprisonment with a non-parole period of 3 years and 5 months. He will be eligible for release on parole on 18 November 2027.

2. [2]

   This was the applicant’s second trial. At the first trial, which commenced on 3 May 2023, the jury were discharged on 31 May 2023 during the complainant’s cross-examination. This meant that the complainant was cross-examined on her account of events on two separate occasions, a little over 12 months apart.

3. [3]

   The applicant is the partner of, and at all material times lived with, one of the complainant’s sisters. The counts related to events which occurred shortly after 9 am on 1 January 2020, after a New Year’s Eve party which continued into the morning, at the applicant’s home. The complainant’s account was that the offending occurred that morning, while she was lying on a L-shaped lounge suite in the lounge room at the applicant’s house. Her account is of offending involving the applicant touching her on the vagina with his fingers, penetrating her vagina with his fingers, rubbing his penis against the cheeks of her bottom, and penile-vaginal intercourse. She says that she did not consent to any of this sexual activity, during which she froze, was unable to move, and said nothing. She says she was facing down during the offending.

4. [4]

   On 1 January 2020 the complainant told members of her family and a friend that she had been sexually assaulted by the applicant. She attended her GP and had a forensic examination known as a Sexual Assault Investigation Kit (SAI Kit) at Nepean Hospital on the same day. DNA testing which was carried out subsequently confirmed the presence of the applicant’s semen on a swab taken from the complainant’s upper thigh and a low vaginal swab confirmed the presence of the applicant’s DNA. The complainant attended the Blacktown Police Station on 2 January 2020 and reported the sexual offending. She was, however, initially reluctant to proceed to the step of having a formal statement taken, which she explained in cross-examination was because she was at that time going through a custody battle with her ex-partner. The police spoke with her again in April 2020 at which time the complainant remained hesitant about making a statement because of matters to do with her separation and family court proceedings. She made a formal statement to police on 15 December 2020, following which the police investigation was reopened.

5. [5]

   The applicant initially denied that any sexual activity between him and the complainant had taken place but subsequently said that consensual penile-vaginal intercourse had taken place. He gave evidence and was cross-examined at the trial.

6. [6]

   The applicant now seeks leave to appeal, and to appeal against each of his convictions on the grounds that:

   1. (1)

      the guilty verdicts are unreasonable (ground one);

   2. (2)

      a miscarriage of justice was occasioned by the trial judge’s comment to the jury in the summing up that the complainant was “confused or misled” by questioning in her cross-examination (which related to what was shown on CCTV footage at between 9 and 9:07 am on the morning of 1 January 2020) (ground two); and

   3. (3)

      a miscarriage of justice was occasioned by her Honour’s direction to the jury to decide the element of knowledge by considering what the applicant’s state of mind would have been if he had not been intoxicated (ground three).

7. [7]

   The applicant accepts that leave to appeal is required for all three grounds under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The applicant also accepts that he requires leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) as regards ground three as no complaint was made at trial about the trial judge’s direction to the jury in this regard.

8. [8]

   For the reasons set out below, leave to appeal should be granted on grounds one and two, but leave should be refused under r 4.15 of the Criminal Appeal Rules to raise ground three, and the appeal should be dismissed.

Relevant background

1. [9]

   Given what is raised in grounds one and two, the CCTV footage from the morning of 1 January 2020 is of considerable significance in this appeal. This footage shows what occurred that morning looking from the door of the applicant’s house into the yard. As this sets the timing parameters for the offending, it is convenient to address this before turning to the Crown case more generally.

2. [10]

   Before being shown any CCTV footage, the complainant was asked questions by the Crown about the timing of events on the morning of the offending. She said that by 7 am she was not tipsy as she had not wanted to drink much because she was seeing her children that day. She was drinking water and Powerade. The people still up in the period leading up to the offending were her, Bradley McGuigan (who is the brother of the husband of another of the complainant’s sisters), and the applicant. Mr McGuigan and the applicant were outside, still drinking, and she went to lay on the couch to sleep. This was some time after 7 am. She could not sleep so she got up and went outside with her Powerade to the yard. She had a cigarette. She sat down next to Mr McGuigan and the applicant mentioned that he had a sore shoulder and asked her to give him a massage. She massaged the applicant’s shoulder for a bit while she finished her cigarette and then said, “[g]ood night, good morning, I’m going to go lay down”. She went back inside and laid down on the lounge and tried to go to sleep, covering herself with a blanket. She said this was at approximately 7:30 am. It was after this that the offending occurred.

3. [11]

   The cigarette that the complainant said she smoked, as set out above, came to be referred to during the cross-examination of the complainant as “the final cigarette”.

4. [12]

   During her cross-examination, the complainant gave evidence that she knew that there was a CCTV camera at the applicant’s house, but that she understood that the CCTV footage could not be accessed because it was either deleted or they could not access it. When she made her statement to the police in December 2020 she did not know if the police had any CCTV footage of the party and she thought that the first time she became aware that there was CCTV footage available was when she was cross-examined on it at the first trial. The CCTV footage unequivocally shows that the complainant’s estimates of timing on the morning of 1 January 2020 are inaccurate.

5. [13]

   The following matters, which are apparent from the CCTV footage, are of particular relevance.

   1. (1)

      At around 7:04 am the complainant walks from the house to the yard carrying a red Powerade. Several people, including the applicant and Mr McGuigan are sitting at a rectangular table in the yard. At 8:08 am the complainant again walks from the house into the yard carrying a red Powerade. Again, a number of people including the applicant and Mr McGuigan are sitting at the table. The significance of these matters is that they show that the complainant, on at least two occasions, walked out into the yard with a Powerade that morning.

   2. (2)

      Two people appear to leave at around 8:27 am, and from that time until after the offending the only people who appear in the CCTV footage are the applicant, the complainant, and Mr McGuigan.

   3. (3)

      At 8:46:24 am the complainant walks from the house into the yard, carrying a can of Red Bull. At that time the applicant and Mr McGuigan are sitting at the table in the yard facing away from the house. The complainant sits opposite them at the table. She is drinking the Red Bull and the three of them appear to be talking to each other. The complainant gets up and goes back into the house at around 8:55 am, leaving the Red Bull on the table. The complainant does not have a cigarette in her hand during this clip of CCTV footage. At 8:58 am the applicant goes into the house.

   4. (4)

      At 9 am the applicant walks from the house into the yard with the complainant walking behind him. The complainant has a cigarette in her left hand but is not carrying a drink. There is no-one else at the table. The complainant and the applicant sit opposite each other at the table. The complainant lights her cigarette. At 9:01:42 am Mr McGuigan, who is on the phone, comes into view, walking towards them and then towards a fence a short distance beyond the table. At 9:02 am the applicant starts rubbing the back of his neck and after he has been doing that for approximately 20 seconds, during which time the applicant and the complainant seem to be talking, the complainant walks around, stands behind the applicant who is still seated in a plastic chair, and gives him a neck massage with her right hand, still with her cigarette in her left hand. For the first twenty seconds or so she is standing behind and to the left of the applicant. During this period Mr McGuigan comes and sits to the right of the applicant. After about twenty seconds the applicant seems to indicate to his right shoulder and the complainant moves to stand behind him and starts massaging that side of his neck with her right hand, still with her cigarette in her left hand. Until 9:04:13 am Mr McGuigan is next to the applicant and they seem to be talking while the complainant massages the applicant’s neck. At 9:04:20 am Mr McGuigan goes back into the house. On a number of occasions during the massage the applicant seems to bend his head back towards the complainant but it is not apparent from the CCTV footage that she makes any response to this. For at least much of the massage, and certainly during the latter period, the complainant appears to be standing a little back from the applicant’s chair such that there is space between her and his chair (and him). At around 9:05 am the applicant puts his hand over the complainant’s hand on two occasions and on both occasions she moves her hand away. The complainant only ever uses one hand for the massage and appears to have her cigarette in her other hand throughout. At 9:06:42 am the complainant stops massaging the applicant’s neck and walks away from him. Mr McGuigan comes into the yard from the house again at 9:07:01 am. At 9:07:04 am the complainant picks up the can of Red Bull. She walks into the house at 9:07:17 am.

   5. (5)

      Mr McGuigan is then on the phone again, and the applicant walks into the house at 9:07:58 am. As he is walking towards the back door he puts his hand inside and down the front of his trousers.

6. [14]

   Mr McGuigan’s unchallenged evidence at trial was that the door from the house to the yard was not locked at any time prior to this point of the morning.

7. [15]

   The complainant’s evidence is that the offending occurred after she went into the house, which the CCTV footage shows was at 9:07:17 am. As set out in more detail below, the applicant’s evidence at trial was that, after the complainant went into the house at this time, he and the complainant had consensual sexual intercourse (although this was not initially his account of that morning) and that this was instigated by the complainant.

8. [16]

   Returning to what is shown on the CCTV footage:

   1. (1)

      At 9:17:30 am, Mr McGuigan approaches the house from the yard and opens and closes the flywire door.

   2. (2)

      At 9:17:36 am Mr McGuigan walks away from the house. At 9:18 am he appears to be talking to someone on his phone while walking around the yard. At 9:18:29 am he opens the flywire door again. The flywire door remains open, suggesting he is waiting at the door, until 9:19:04 am when the door to the house appears to be opened and it can be inferred Mr McGuigan went into the house. It is apparent that at some time during this period Mr McGuigan knocked on the door to the house. This was referred to at trial as “the knock on the door”.

   3. (3)

      The complainant leaves the house and walks to the street outside at 10:08 am.

9. [17]

   The particulars of the five counts as given to the jury were as follows:

   1. (1)

      Count 1 – Placing his finger(s) into the complainant’s vagina (digital penetration) [whilst tights still on]. This was the count on which the applicant was found not guilty.

   2. (2)

      Count 2 – Placing his finger(s) into the complainant’s vagina (Digital Penetration) [after tights had been removed].

   3. (3)

      Count 2 – Inserting his penis into the complainant’s vagina (Penile Vaginal Intercourse).

   4. (4)

      Count 4 – Rubbing his penis on and between the complainant’s buttocks.

   5. (5)

      Count 5 – Touching the complainant’s vagina with his fingers.

10. [18]

    The Crown case as put to the jury in closing was that the applicant “likely drunkenly got the wrong idea” about the massage that occurred shortly after 9 am and that the CCTV footage of the applicant going into the house at around 9:08 am shows that he had become aroused by that time. The Crown summarised the sequence of events before the knock on the door as involving: the complainant laying down on her stomach to go to sleep on the lounge; the applicant coming inside and asking her to play truth or dare; the complainant telling him that she needed sleep because she did not want to be cranky with her children the next day; and the complainant then falling asleep and being woken with a hand going down her underwear and tights, squeezing her bum and heading in the direction of her vagina. The complainant then froze; the applicant was playing with the outside of her vagina and then “[f]ingering [her]”, which went for a while, but she could not say how long. He then said her nickname twice and she recognised the voice as the applicant’s. He had not at this point removed her tights but count 1 (on which the applicant was acquitted) had been committed and count 5 continued throughout and beyond this. At some point the applicant touched the side of the complainant’s breast, as she laid on her stomach, and he tried to roll her over, but he was unsuccessful.

11. [19]

    The Crown case was that after the knock on the door, and after Mr McGuigan was let in and fell asleep on the couch:

12. [20]

    Mr McGuigan was a Crown witness. His evidence was that he had gone to the door and couldn’t open it, so he knocked on the door. He said that he was not let in straight away but after maybe five minutes or so, maybe less, the applicant opened the door (the CCTV footage suggests the period was in fact somewhat shorter than that). He said that after looking in one room, where the applicant’s cousin (Miguel Poveda, whom I will refer to as Miguel) was sprawled out and asleep, he went to sleep on the far corner of the lounge suite, with his head “furthest right”. He said the complainant was asleep with a blanket at the other end, facing away from him. He said he fell asleep “pretty immediate” meaning that “[i]t would be less than two minutes”. He did not have any memory of seeing the applicant do anything after the applicant let him in. He also did not see anything that would indicate to him that an incident had taken place. When he first walked into the house, the applicant had red shorts on, but he was not sure that he had a shirt on. The complainant was not in a state of undress.

13. [21]

    By way of context to Mr McGuigan’s evidence, the lounge suite can be shown in the photograph below.

14. [22]

    In some respects, the complainant’s evidence as to what occurred varied during her examination-in-chief and cross-examination in the two trials. Two matters attracted particular significance both at trial and before this Court. First, in her examination-in-chief on 9 May 2023 she initially said, alternatively, that she had fallen asleep or tried to fall asleep, and was woken by the applicant telling her that he wanted to play truth or dare. She later corrected this in her cross-examination (on 24 May 2025) and said that she had been trying to fall asleep but had not fallen asleep at that time.

15. [23]

    Second, on 9 May 2023 during her examination-in-chief she initially said that her tights were partly removed and the applicant was rubbing the tip of his penis, which was semi-erect, down the cheek of her bottom towards her vagina before the knock on the door. The Crown then cross-examined the complainant on this issue on 10 May 2023, with leave under s 38 of the Evidence Act 1995 (NSW), and she said that prior to the knock on the door the applicant had pulled her pants down to behind her knees but that it was after the knock on the door that he removed her pants, rubbed her with his penis and had penile-vaginal intercourse, also playing with her vagina with his fingers. A little later, still on 10 May 2023, during the complainant’s cross-examination by senior counsel for the applicant, she was asked whether her evidence given the day prior during her examination-in-chief, that she felt a naked body from below the waist on top of her rubbing between the cheek of her bottom and the tip of the applicant’s penis going inside her vagina, was before the knock on the door and she said:

16. [24]

    Also on 10 May 2023, when asked whether the penile-vaginal penetration occurred before the knock on the door, the complainant said “[m]aybe as of my statement”. She then said that she was not sure if there was penile-vaginal penetration before the knock on the door and that she was unsure of “the sequence of time of when it occurred in which time” but that she did “know what happened to [her]”. When asked again whether the act of penile-vaginal penetration occurred before the knock on the door she said “[y]es it did happen”. Later, during her cross-examination on 24 May 2023, she said that she still had her pants and underwear on at the time of the knock on the door and she had made a mistake in her earlier evidence, which she had realised later on the day that she had given that evidence. She then reiterated that at the time of the knock on the door her pants were up.

17. [25]

    The complainant was also cross-examined as to four typed pages of notes she took to the police station when she made her formal statement in December 2020. She could not recall when she typed those notes. She was asked what the notes said. There is some ambiguity about this line of questioning, namely as to whether the questions simply asked the complainant to agree what was in the notes, or whether she was being asked whether the things recorded were true. I would not place material significance on the complainant’s answers to these questions, save to the extent that she should be understood to be confirming what is in her typed notes.

18. [26]

    A further feature of the complainant’s evidence, which is of significance in this appeal, is her repeated statements that she could not give timeframes as to what occurred during the offending. For example, as regards the timeframe between the applicant saying that he wanted to play truth or dare and her falling asleep she said:

19. [27]

    She also said she did not know how long the conversation about truth or dare went on. She also could not put a timeframe on how long she was asleep after this and did not know if she had been deeply asleep because she could not put a timeframe on that. She was also asked how long after the knock on the door the applicant returned to her and she said she did not have any memory of how long that might have been and also could not estimate how long it might have been.

20. [28]

    In some respects, however, the complainant did give vague indications of timing. As to what happened when the applicant first put his hands down her tights, she said that she could not put a timeframe on it but that it “went on for a bit”, “was going on for a bit”. She said that after this he tried to roll her over, he nibbled her on the shoulder, then again put his hands down her pants and that “continued for a while but to give you, you know, five, ten minutes, I wouldn’t be able to say but it went for a while”. Her evidence was that he said, “[y]ou’re wet. You’re enjoying this,” and that “he continued doing that for a bit”. She also said that when the applicant’s penis was down her bottom cheeks and then towards her vagina “[i]t was there for a little bit”, “it would go on for a little bit, then he’d stop”, and “he’d stop for a period of time, then he’d start again” but that she did not remember how many times that occurred.

21. [29]

    The complainant’s evidence was that she stopped the car on the drive home from the applicant’s house that morning as she was crying and in shock. She tried calling one of her sisters and that sister’s partner, and her best friend Jade Rutter. On the second try, Ms Rutter answered and the complainant told her that the applicant had “had his way with me”. Ms Rutter’s evidence was that the complainant told her that she had fallen asleep on the couch and that she woke up to someone on her back pulling her pants down and she knew it was the applicant. Ms Rutter said that the complainant said to her that “she didn’t know what he was going to do, so she just froze.” Ms Rutter said that she did not ask any details. She said the complainant was crying and very distraught. The complainant told Ms Rutter that she was concerned of the implications it would have on her two young girls.

22. [30]

    The complainant then called her mother and said she was not able to drive and asked her to pick her up. She told her mother what had happened but could not recall the exact words she used, but they were words to the effect of that the applicant “had had his way with [her]”. Her mother’s evidence was that the complainant was “very bad”, crying, and that she knew “something really bad had happened”. The complainant’s mother could not remember the exact words used but said that the complainant told her she had been sexually abused, that she could not “even move”, that she had been lying on the couch, went to sleep, when the applicant came and asked her to play a game, that he kept coming, she was facing down, and then suddenly she could feel that he took her pants off and went on top of her and started penetrating her.

23. [31]

    When the complainant was at the Nepean Hospital, a history was taken by a forensic nurse examiner, Mandy Eagles, for the purpose of seeing what medical care may need to be provided. That history was described as not “necessarily constitut[ing] a full or detailed history or record of the events”. It recorded that the complainant laid down on the couch, the applicant asked her if she wanted to play truth or dare, she told him to go to bed, she felt exhausted and believed she fell asleep almost immediately, she woke feeling her tights and underpants were being pulled down, she felt frozen and unable to move, the applicant touched her genital area with both his finger and his penis, he penetrated her vagina several times with his finger and she was uncertain if he penetrated her vagina with his penis also. She believed he may have ejaculated between her thighs.

24. [32]

    The complainant’s sister (not the sister who was the applicant’s partner) gave evidence that after she returned from the hospital the complainant was quite upset and told her that the applicant had forced himself from behind, had taken her pants off, and that she was not sure whether he had penetrated with his penis but had definitely inserted his finger inside her.

25. [33]

    On 10 May 2023, the first day of the complainant’s cross-examination at the first trial, she asked for a short intermission, at which point the trial judge gave her the option of resuming her cross-examination the following day. The complainant said that she would appreciate that, and the Court thus adjourned early for that day. The complainant was given a direction by the trial judge that, as she was now in cross-examination, it was “very important” that she not “talk to anybody about this matter”, to which she responded “I know, I haven’t”. The trial judge also told her that she could not talk about the trial or the cross-examination. That afternoon, at 3:59 pm, the complainant called a witness support officer employed by the Office of the Director of Public Prosecutions (the WSO and the ODPP, respectively), and at 5:41 pm, called the ODPP solicitor with carriage of the matter, Jacob Carlberg. The content of these conversations as recorded in file notes was tendered as an agreed fact at the trial.

26. [34]

    The conversation with the WSO was recorded in a file note as follows:

27. [35]

    The conversation with Mr Carlberg was recorded in a separate file note as follows:

28. [36]

    At that point Mr Carlberg told the complainant they could not talk about her giving evidence. The complainant then asked, “Is it a big thing I’ve done?” before Mr Carlberg reiterated that he could not talk to her about her giving evidence, to which she said, “Okay, no I understand – thank you”. He then said they could talk again after she had finished giving evidence and ended the call. The Crown appropriately disclosed this to the Court the following day and also disclosed the conversation with the WSO to the Court and to the defence.

29. [37]

    The complainant was cross-examined as to this on 18 May 2023. She said that she did not recall being told by the trial judge not to talk to anyone about this matter. A recording of the trial judge giving the complainant that instruction was then played to her. She then she said that she now recalled that interchange but that she had understood that that was about “my family in regards to people that are the witness[es]” and that she “didn’t understand it at that stage”. She said that that afternoon of cross-examination had been “quite emotional”. She accepted that she had also talked to one of her sisters about the cross-examination but could not recall exactly what she told her. On 23 May 2023, the complainant was cross-examined about the specifics of her conversation with Mr Carlberg on 10 May 2023. She said that she could not recall making a telephone call to Mr Carlberg on 10 May 2023 or having the conversation that was recorded in the file note. She also denied that she knew that she could not call Mr Carlberg during her cross-examination, and said:

30. [38]

    The complainant explained in her evidence that at the end of the Court day on 10 May 2023 she felt that she had “stuffed things up” as regards the order in which things happened and that that was a “big problem”. She said that she was hysterical and emotional when she spoke to her family about this when they came to pick her up from Court. She also said that she had no recollection of speaking with the WSO and that she did not understand that the WSO’s role in the proceedings “was not a role that would include talking about [her] evidence”. In closing submissions at trial the applicant’s senior counsel submitted that these matters should be taken into account by the jury in assessing whether to accept the complainant’s evidence to the high standard required. In support of ground one, the applicant contends that these matters mean that the complainant’s evidence may be approached with caution.

31. [39]

    The transcript of a telephone call on 4 May 2021, which was lawfully intercepted by police, was in evidence at trial. In this call the applicant told his brother-in-law, Mr Magdic, that the complainant had sent him a text saying that she wanted some answers. He then said:

32. [40]

    It was not until the following day that the police told the applicant’s partner that an unknown DNA specimen had been identified in the complainant’s SAI Kit. The applicant provided a DNA sample to police on 10 September 2021.

33. [41]

    The applicant, who it should be recalled had seen the CCTV footage, gave evidence that by 6 am on 1 January 2020 he would have been sobering up and at 9 am he was “probably close to tipsy”. He said that he went inside to go to bed at about 9 am at which point he saw the complainant who said she wanted to have one last cigarette. He went outside with her. His neck started to get sore and he started to massage it, at which point the complainant came over and started to massage his neck. During the massage he started to get sexually aroused. He said he might have tried to touch her hand and that he was pushing his head “towards her front area”. When the massage finished he was tired but aroused. The complainant went inside and shortly after that he went inside. She grabbed his hand and closed the door and started pulling him towards the couch. She pulled his head towards her and they kissed, then they were “dry humping”, when she grabbed his penis and massaged it on the outside of his pants. She pulled her pants and underwear down, climbed onto the couch, was on all fours with him standing directly behind her, he undid the buttons on his pants and took his penis out, he started to rub his penis on the back of her vagina, he said “[y]ou’re so wet”, she said “[y]es, I want it” and they had penile-vaginal intercourse. He then pulled out and ejaculated, “somewhere on the couch and on her”. He was still aroused and trying to get another erection, with his penis still touching her, when Miguel came from behind him and pulled him off. Miguel dragged him violently into the study where they had a conversation. The applicant’s phone then rang but he didn’t answer it, and there was banging on the back door so he walked out of the study and opened the door for Mr McGuigan. The applicant then went to bed and fell asleep.

34. [42]

    When confronted by his partner about what the complainant had by then told her family, the applicant said that it was not true. He said in evidence that this was because he “didn’t want to say more than [he] had to”. At some time, he and his partner “g[o]t into the CCTV” and looked at it. On 2 January 2020 he went to see a lawyer who told him that the CCTV footage was “probably the most crucial thing” and that he should download it as soon as possible so he bought USBs to download the CCTV footage. He told his parents that the complainant had accused him of “assaulting her, raping her” and that “I couldn’t remember”. He told Mr Magdic that he had blacked out and could not remember anything. Mr McGuigan gave evidence that the applicant told him that he did not remember anything that “happened in the night”. One of the complainant’s sisters gave evidence that the applicant told her that he “didn’t recall up until past midnight” and he denied that he had had sex with the complainant. The applicant accepted in cross-examination that when he did not know that his semen had been discovered on the complainant’s “rape kit” he was claiming not to remember the incident. He also accepted that he lied in the accounts he initially gave.

35. [43]

    Miguel gave evidence supporting the applicant’s account.

36. [44]

    The Crown highlighted a number of matters in closing. First, it submitted that the CCTV footage showed that the complainant did not look sexually interested in the applicant at all and that that supported the proposition that she did not have any intention to do anything sexual with the applicant that morning.

37. [45]

    Second, the Crown relied upon the applicant’s intoxication as an explanation for why he misinterpreted the massage which the complainant gave him shortly after 9 am in the yard, and as a factor which motivated the applicant to initiate and to complete sexual activity with the complainant, including sexual intercourse and ejaculation, even though Mr McGuigan was asleep not far from where the complainant lay. In considering the applicant’s knowledge, however, the Crown submitted that “you treat the accused as if he was sober”. The Crown case as put in closing was that, in treating the applicant as sober, he must have known that the complainant was not consenting to this, but that if the jury was not satisfied beyond reasonable doubt that the applicant actually knew she was not consenting, it would be easily satisfied that the applicant was reckless as to whether or not the complainant was consenting or, alternatively, even if it could not exclude the possibility that he believed that she was consenting, that he nevertheless had no reasonable grounds for that belief.

38. [46]

    Third, the Crown submitted that the jury would reject the applicant’s evidence, including because it would find that he had deliberately lied (including during the intercepted telephone call on 4 May 2021) and because he was a less than impressive witness.

39. [47]

    Fourth, the Crown submitted that the applicant’s evidence of Miguel catching him in the act was in direct contradiction with the evidence of Mr McGuigan that Miguel was sprawled out on a futon in the study when Mr McGuigan came inside, and that the jury would accept Mr McGuigan’s evidence as to this.

40. [48]

    Fifth, the Crown submitted that the complainant’s evidence was key. As to this, the Crown said that the jury had heard her and observed her give evidence and that it was for each of them to assess that evidence, and that the jury would find that “she was being honest and accurate in her recollection generally and in particular, on those crucial aspects of her evidence that actually go to the elements of the offence.” The Crown submitted:

41. [49]

    The Crown also submitted there was “a difference” in the complainant’s account of the order of events, “most notably” as regards what occurred before and after the “knock on the door”. The Crown said:

42. [50]

    Reasons why this might be so included, according to the Crown, how long ago the events occurred and the traumatic nature of the event itself.

43. [51]

    The Crown also relied upon the evidence of complaint on 1 January 2020.

44. [52]

    In her closing address at trial, senior counsel for the applicant placed particular emphasis on a number of matters. First, she contended that the jury would not accept that there was “any sexual assault or consensual sexual act” in Mr McGuigan’s presence, as the idea that he simply slept through that beggars belief. She submitted that his evidence would cause the jury to have real doubt about the truthfulness and reliability of the complainant’s evidence. Second, she relied upon the evidence of Miguel, contending that the jury would accept his evidence and that that would cause the jury to have a real doubt about the complainant’s evidence. Third, she submitted that the time between the applicant entering the house and Mr McGuigan being let into the house, a period of about 11 minutes, was insufficient for the events as described by the complainant to have occurred.

45. [53]

    Fourth, she submitted that there were demonstrable problems and flaws with the evidence of the complainant, on which the Crown case depended. She described a number of matters as “odd”: the fact that the complainant tried to call the applicant at 11:16 am on the morning of 1 January 2020; that she had driven past the applicant’s house even though it required a deliberate detour; and that the applicant had had a missed call from the complainant on 15 June 2023. She also relied upon the complainant having spoken to people about her evidence, as described above at [33]-[38]. She submitted that the inconsistencies in the complainant’s evidence “demonstrate, or point towards, an untruthful account”. She also made submissions about the massage, contending that the complainant did not pull her hand away when the applicant touched it, that she did not rebuff the applicant when he moved his head back, and that the jury would have to look and take into account the whole of the CCTV footage. After this, she addressed the topic of the CCTV footage shortly after 9 am (which is discussed below).

46. [54]

    Fifth, she contended that the complainant was not a particularly impressive witness who was slow to make a concession, but that the jury would find that the applicant was an honest and reliable witness and should accept his evidence. She also addressed the applicant’s good character and the presumption of innocence.

Ground one

1. [55]

   There is no dispute as to the principles to apply when considering the applicant’s complaint that the jury’s verdicts are unreasonable. Consistent with M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63, this Court “must ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” but must not disregard or discount either the role of the jury or “that the jury has had the benefit of having seen and heard the witnesses”. The Court explained at 494-495 (Mason CJ, Deane, Dawson and Toohey JJ) that:

2. [56]

   More recently, in R v ZT [2025] HCA 9; 99 ALJR 676, at [9]-[12], Gageler CJ, Gleeson, Jagot and Beech-Jones JJ emphasised that an appellate court is required to give “full allowance” to the advantages of the jury in seeing and hearing the evidence when considering whether those advantages may resolve any doubt the appellate court holds as to an appellant’s guilt. Their Honours also emphasised at [11] that the assessment of the sufficiency and quality of the whole of the evidence that is required of the appellate court is undertaken in an adversarial context in which “it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal”.

3. [57]

   As explained by the High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39], an appellate court considering a ground that contends that the jury’s verdict is unreasonable proceeds on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.

4. [58]

   In support of his contention that the jury’s verdicts are unreasonable, the applicant made two submissions. First, that there was insufficient time between the complainant entering the house and Mr McGuigan entering the house for the events that the complainant alleged to have occurred and it was unlikely that counts two to four could have occurred after Mr McGuigan entered the house and lay on the lounge suite without him noticing. Second, the applicant relied upon the discrepancies in the complainant’s evidence about disregarding the trial judge’s direction not to speak with others about her evidence, as set out at [33]-[38] above.

5. [59]

   The focus of the applicant’s submissions was, however, very much upon the first of these points. As to this, the applicant drew attention to the fact that, whilst the complainant’s evidence as to what occurred before, as opposed to after, the knock on the door varied, the sequence of sexual offending (as set out at [23]-[24] above) did not alter. The applicant noted that ultimately, the complainant’s evidence was that it was after the knock on the door that she was woken, the applicant pulled her pants down, groped her and played with her vagina and the rest of the sexual offending took place. He submitted that it was necessary for the Crown to establish that timing beyond reasonable doubt, because the sequence of sexual offending (as consistently described by the complainant) could not have happened in the approximately 11 minutes between the applicant entering the house at 9:07:58 am (see [13] above) and 9:19:04 am when the door opens for Mr McGuigan (see [16] above). In this regard, the applicant relied upon the complainant’s evidence, such as it was, about the time for which various events continued (as set out at [26]-[28] above), and the fact that the complainant’s evidence was that she fell asleep in between the applicant asking her if she wanted to play truth or dare, and the offending.

6. [60]

   The applicant contended, by analogy with the approach taken by the High Court in Pell, that given that proof of the charges depended upon the Crown proving that all of those events occurred after the knock on the door, a reasonable doubt as to that necessarily would be a reasonable doubt as to whether the applicant was guilty of the alleged offending. As to this, he submits that, at its highest, the complainant’s evidence was that there was a question mark as to whether the penile-vaginal penetration occurred before or after the knock on the door, as reflected in the evidence the complainant gave that she was “struggling” with that issue of timing (as set out above at [28]).

7. [61]

   As is clear, there are three strands to the applicant’s contentions on ground one.

8. [62]

   First, the applicant contends that the relevant sequence of offending could not have occurred in the approximately 11 minutes before the knock on the door. I would reject this contention. All of the events which the complainant described in her evidence could readily have occurred within 11 minutes. The complainant clearly had difficulty in putting timeframes on events, and her imprecise descriptions do not suggest that any of the offending, or any other event that she described occurring before or during the sequence of the offending, took place over or continued for significant periods of time. Nor would any of these acts or events necessarily have taken a prolonged period of time. There is no force to the applicant’s contention that the complainant could not have had an interaction about truth or dare, fallen asleep and been woken as she said, with the offending occurring thereafter as described, in a period of 11 minutes. Given these conclusions, it was not indispensable to the applicant’s guilt that it be proved beyond reasonable doubt that the sequence commencing with the applicant pulling the complainant’s pants down completely must have occurred after the knock on the door.

9. [63]

   Secondly, the applicant contends that this Court would have a reasonable doubt, which could not be resolved by the jury’s advantage in seeing or hearing the evidence, that the complainant’s pants were pulled completely down and that the sequence of offending following that occurred after the knock on the door. The contention was consequential upon the first strand of the applicant’s contentions, which I have rejected, but I would in any event have rejected this second contention. Assuming, as I must, that the jury found the complainant’s evidence to be credible and reliable, the jury could have relied upon the complainant’s evidence in her cross-examination on 24 May 2023 that at the time of the knock on the door she still had her pants and underwear on and that she had made a mistake, “stuffed up remembering the ordering of things” in her earlier evidence. She confirmed that she had been trying to be truthful in her earlier evidence but realised she had been mistaken later on in the day that she gave that evidence. The inevitable consequence of the complainant having her pants up at the time of the knock on the door is that the sequence of events that followed her pants being pulled down must also have occurred after the knock on the door.

10. [64]

    It is of some relevance that the complainant’s police statement, which was put to her in cross-examination on 24 May 2023, said that it was after the knock on the door that the applicant pulled down her tights and that the sequence of sexual offending described at [23]-[24] above occurred. She also said that it was after the penile-vaginal intercourse ceased that she looked around for her clothing and saw that Mr McGuigan was asleep on the couch. That is only consistent with the sequence of sexual offending occurring after the knock on the door. Further, the complainant’s evidence, described at [38] above, was that at the end of 10 May 2023 she was hysterical and felt that she had “stuffed up” the order in which things occurred.

11. [65]

    Having regard to all of these matters, despite the inconsistencies in the complainant’s evidence, I have no reasonable doubt that the sequence of sexual offending set out at [23]-[24] above occurred after the knock on the door and, as the complainant said, her earlier evidence to the contrary was mistaken. In any event, any doubt that I might have had in considering these matters only with the benefit of the transcript could readily have been resolved by the jury’s advantage in seeing and hearing the evidence.

12. [66]

    The third strand to the applicant’s contentions should also be rejected. There is no reason to doubt that the offending could have occurred whilst Mr McGuigan, who had been up all night, slept on the other end of the lounge suite. As already noted, he said he fell asleep pretty immediately. Moreover, nothing that the complainant described during the sexual offending was particularly noisy or likely to wake Mr McGuigan up. Assuming, as I must, that the complainant was assessed by the jury to be credible and reliable, I have no reasonable doubt that the offending occurred as described by the complainant, with Mr McGuigan asleep at the other end of the lounge suite.

13. [67]

    I have also considered these matters, and the discrepancies in the complainant’s evidence about disregarding the trial judge’s direction not to speak with others about her evidence, together with the evidence as a whole. Having done so, I would not reach any different conclusion. The complainant’s evidence as to her understanding and recollection of the trial judge’s direction at the close of evidence on 10 May 2023 not to discuss her evidence was tested in cross-examination. There was evidence before the jury of the complainant’s distress when the Court adjourned on that day. In the context of what was clearly a period of some emotion for the complainant, the jury could readily have found that these matters did not significantly undermine the complainant’s credibility or reliability. Even had I experienced a reasonable doubt, this is a case where the advantages of the jury were well capable of resolving such doubt.

14. [68]

    Ground one should be rejected.

Ground two

1. [69]

   The essence of the applicant’s contention in ground two is that the impugned comment by the trial judge in her summing up to the jury was both unnecessary and occasioned a miscarriage of justice.

2. [70]

   Cross-examination of the complainant took place in circumstances where the CCTV footage had been retained by the applicant but the Crown did not have access to it and there was no suggestion that there was anything untoward in this. The CCTV footage comprised a number of separate clips. A number of these were tendered during the complainant’s cross-examination at the first trial. As is relevant to ground two, this occurred in the following way:

   1. (1)

      On 25 May 2023, the complainant was shown the CCTV footage of the period from 9:00:29 to 9:05:23 am on 1 January 2020, when the complainant came out of the house with the final cigarette, and she was asked some questions but the cross-examination was cut short because it was the end of the Court day. The CCTV footage was not tendered.

   2. (2)

      The complainant was then unwell on 29 and 30 May 2023 and her cross-examination resumed on 31 May 2023. After being cross-examined about other topics, the complainant was shown CCTV footage from around midnight on 31 December 2019 and cross-examined as to that. She was also shown footage of events between 8:27:16 and 8:30:43 am on 1 January 2020 and cross-examined as to that. During this period the applicant is shown wheeling the bin into the yard at 8:29:18 am. At the end of that cross-examination senior counsel for the applicant said, referring to the CCTV footage, that she did not “intend to play all of it, because it doesn’t show anything else of any significance” and that she would edit the recording to end at 8:30:43 am and tender it “[r]ather than spend ten minutes watching nothing”. She said, clearly referring to the CCTV footage after that time, “it doesn’t show anything that I’ll be asking any further questions about”.

3. [71]

   As set out at [13] above, however, the CCTV footage between 8:30 and 9 am, that is, the period between the applicant wheeling the bin and the complainant coming out with a cigarette in her hand, shows the complainant coming out of the house with a Red Bull at 8:46 am, with Mr McGuigan and the applicant already sitting at the table, and the complainant returning to the house at 8:55 am before coming out again with the applicant at around 9 am.

4. [72]

   The cross-examination on 31 May 2023 continued and the following exchange occurred:

5. [73]

   The Crown submitted in this Court that it was “highly problematic” for the cross-examiner to link the complainant walking out to have the final cigarette with going to the fridge to get the Powerade, when the CCTV footage shows that the former occurred at 9 am and the latter occurred at 8:46 am (albeit that the drink was a Red Bull).

6. [74]

   Returning to the complainant’s cross-examination at the first trial, the trial judge then asked senior counsel for the applicant about the “second clip” of CCTV footage (that is, the one that covered the period prior to 9 am) and senior counsel for the applicant said:

7. [75]

   The CCTV footage from 9:00:28 am was then played to the Court and the following exchange occurred between the cross-examiner and the complainant:

8. [76]

   On 31 May 2024, during the complainant’s cross-examination at the second trial exactly one year later, the following exchange occurred:

9. [77]

   On 31 May 2024 the Crown then re-examined the complainant, including about the fact that the complainant was not, during her cross-examination, shown any CCTV footage between 8:30:43 and 9 am. The complainant agreed that she did not know what happened during that period “because [she] hadn’t been shown the footage”. During this re-examination the Crown put questions to the complainant about the fact that there is no Red Bull can on the table at 8:30:43 am but there is at 9 am. She was asked whether she knew how the Red Bull “g[o]t outside” to which the complainant responded that she did not recall. At that point in the re-examination the Crown called on the CCTV footage. There followed an exchange between the trial judge and counsel in the absence of the jury. During that exchange, senior counsel for the applicant accepted that the ODPP would not have had the CCTV footage. She also told the trial judge that:

10. [78]

    She later added:

11. [79]

    She said she personally did not have the entirety of the footage and did not know if there was a USB at Court that had the entirety of the footage as her instructing solicitor did not have a USB with her that day. She asked for time to research the issue as what was sought involved “requiring disclosure effectively from the [applicant]”. The Crown indicated that the call was pressed but that the material may not have to be tendered through the complainant. She continued with the complainant’s re-examination which concluded on that day, 31 May 2024, at which point the trial judge told the complainant that she was excused. After the jury withdrew the following exchange occurred:

12. [80]

    On 3 June 2024 senior counsel for the applicant told the trial judge that the hard drive of the CCTV footage would be produced in the presence of the jury in response to the call from the Crown. It was produced to the Court later that day, whilst Mr McGuigan was being cross-examined by senior counsel for the applicant. During that cross-examination, senior counsel for the applicant put the CCTV clip showing the complainant coming out of the house into the yard at 8:46:23 am to Mr McGuigan. As described at [13] above, this shows the complainant coming out of the house with a can of Red Bull and sitting across the table from where the applicant and Mr McGuigan were seated.

13. [81]

    Immediately following that clip of CCTV footage being played, in the absence of both the jury and Mr McGuigan, the trial judge raised with senior counsel for the applicant that it had been put to the complainant that she was wrong about coming out of the house with a drink while the applicant and Mr McGuigan were at the table, yet, on the footage that had just been shown during Mr McGuigan’s cross-examination, but which the complainant was not shown, she was not wrong about that. Over the remainder of the trial there were a number of interchanges between the trial judge and counsel about this issue. It is unnecessary to rehearse these, as it is the trial judge’s comment (which I will come to) which is said to have resulted in a miscarriage of justice. It suffices to observe that, ultimately, senior counsel for the applicant declined to make any statement to the jury about the issue, the Crown declined to recall the complainant to give further evidence by reference to the CCTV footage at 8:46 am, and the trial judge refused an application by the applicant to discharge the jury, which application was prompted by an earlier iteration of the trial judge’s proposed direction to the jury (which was not in the same form as that given) which included a statement that it “appear[ed] that the complainant was misled”.

14. [82]

    It should also be observed that senior counsel for the applicant raised concerns that if the jury was told that the complainant had been misled that was “almost an invitation for [the jury] to reject anything I say. This is the prejudice for the [applicant]”. In the course of these submissions senior counsel for the applicant also said that “this is not something that can be sheeted home to the [applicant]” at which point the trial judge interrupted her, saying:

15. [83]

    In closing submissions, the Crown submitted:

16. [84]

    It is implicit in this submission that the jury might find that the complainant was misled by the way in which the cross-examination was conducted. Shortly after this submission was made, the trial judge asked senior counsel for the applicant if she had anything to raise and she did not object or express concern about this submission. Subsequent to this there was a discussion in the absence of the jury as to what directions the trial judge would give to the jury, including what was described as the “misled direction”. Senior counsel for the applicant submitted that the Court should not make a comment but could summarise the Crown’s argument. The trial judge responded that the problem with that was that she could not give them “a direction about not being prejudiced”, as “[i]f they view it as a deliberate misleading, they’ve got the potential to use it, misuse it".

17. [85]

    Senior counsel for the applicant also addressed this topic in her closing submissions. She submitted that her cross-examination was “focused on a specific point in time and the point in time being the final cigarette or massage immediately before the alleged sexual assault”. She then purported to read out an extract from her cross-examination of the complainant, during which the trial judge interrupted her, saying, “[y]ou’ve misquoted the evidence. You’re misreading it”. This interjection related to senior counsel saying that the complainant had answered “[t]hat’s how I recall it” rather than, as the transcript read, “[t]hat’s how I recall that period”. Senior counsel then submitted that her questions during cross-examination were “not to demonstrate that the complainant didn’t walk out at an earlier time”, but that the significance and focus of the cross-examination was “that the complainant walked out of the house for that final cigarette with the [applicant] and that the drink she was drinking on the final occasion was a Red Bull” and that:

18. [86]

    The issue of the effect of the relevant passage of cross-examination on the complainant, and what should flow from it, was thus very much before the jury.

19. [87]

    The trial judge directed the jury that they were the sole judges of the facts of the case and that, if she expressed a view, it was open to them to reject that view if it did not accord with their own independent assessment of the evidence. The trial judge then told the jury that there was one matter where she was going to comment, and again told the jury that “whether you agree with my comment is entirely up to you”. The trial judge then referred to the cross-examination of the complainant that is at [75] above and said:

20. [88]

    The fundamental obligation of a trial judge is to ensure a fair trial. There is no doubt that, within the ambit of that obligation, “a trial judge may comment (and comment strongly) on factual issues” but that “[o]ften, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel”: RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [41]-[42] (Gaudron ACJ, Gummow, Kirby and Hayne JJ); see also Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 at [59], [61] (Kiefel, Bell, Keane and Nettle JJ). Where the judge does comment, as explained by Brennan J in B v The Queen (1992) 175 CLR 599 at 605; [1992] HCA 68, and cited with approval in Castle at [61]:

21. [89]

    The trial judge’s broad discretion to comment on the facts of the case must be “exercised judicially as part of ensuring that the facts of the case are put ‘accurately and fairly’ to the jury”: McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 at [3] (Bell, Keane, Gordon and Edelman JJ). As occurred in McKell, a miscarriage of justice may be occasioned where a comment by the trial judge was “apt to create a ‘danger’ or a substantial risk that the jury might actually be persuaded of the [accused’s] guilt by comments in favour of the prosecution case made with the authority of the judge”: at [42].

22. [90]

    The applicant submitted that the impugned comment gave the jury the impression that it was the questions put in cross-examination that had confused and misled the complainant in her evidence as to what occurred when she walked out to the yard at about 9 am on 1 January 2020, and that it was this that caused the discrepancy in her evidence as to this. Use of the word “misled”, he submitted, entailed connotations of deceptive behaviour. That, it was submitted, undermined senior counsel for the applicant’s submissions at trial more generally as to the complainant’s credibility and reliability, and this was of real significance to the challenge to the complainant’s credibility, as this cross-examination went to the last thing that occurred before, and the lead up to, when the alleged offending took place. He also submitted that the comment would not alleviate any suspicion that the jury may have had about the conduct of the applicant’s counsel at trial but would instead draw attention to it.

23. [91]

    Further, the applicant submitted, the trial judge did not, in her summing up, remind the jury that the questioning of the complainant about what occurred at around 9 am was limited to and “anchored to” a specific point in time, namely when the complainant went into the yard and had the last cigarette and that the comment thus “lacked balance”.

24. [92]

    In support of his contention that the cross-examination was not unfair, the applicant relied upon what he said was a very specific temporal limitation upon the questioning. In this regard, he referred to what he said were “very different features” as between what occurred at 8:46 am and what occurred at 9 am, being that the complainant was not smoking a cigarette at 8:46 am but was at 9 am, and that at 8:46 am she was carrying a Red Bull whereas at 9 am she was carrying a Powerade. He submitted that these differences meant that it was clear that the questions put in cross-examination were directed to what happened at 9 am and not what happened at 8:46 am, and that the complainant’s evidence was, as put to her, wrong about what occurred when she went out with the last cigarette.

25. [93]

    The applicant also contended that the trial judge was precluded from making the comment because the Crown could have, but did not, recall the complainant to re-examine her with the benefit of the relevant CCTV footage.

26. [94]

    Ultimately, senior counsel for the applicant accepted in his oral submissions before this Court that it would have been “fine” if the trial judge had told the jury:

27. [95]

    The problem, he said, was the comment that the trial judge made when directing the jury as to this.

28. [96]

    The applicant’s submission that a miscarriage of justice was occasioned by reason of the comment must be rejected. It was appropriate for the trial judge to make a comment in her summing up to reflect the fact that unfairness to the complainant (which I do not for a moment suggest was apparent to senior counsel for the applicant at the time) flowed from her having been cross-examined as she was despite what was shown by the CCTV footage. There was also, as the trial judge observed, a risk that the jury might reason in an impermissible way to the prejudice of the applicant.

29. [97]

    The complainant’s evidence, set out at [72] above, of the period between the applicant wheeling in the bin (at around 8:30 am) and the final cigarette was of her coming out from the house to the yard on one occasion, when the CCTV footage, not all of which she was shown during her cross-examination, showed that she came out on two separate occasions. As is reasonably apparent, in her evidence the complainant conflated two memories. The first is of her walking out of the house carrying a drink (she said a Powerade but the CCTV footage shows a Red Bull) when the applicant and Mr McGuigan were at the table, at around 8:46 am. The second is of her walking out with the final cigarette at around 9 am. As the complainant was not shown the CCTV footage between 8:30 am and 9 am, and senior counsel for the applicant said that the footage during that period showed “nothing about anything”, the complainant was not given any opportunity to identify this conflation. Instead, it was put to her that her recollection, and by implication her evidence setting out that recollection, was wrong.

30. [98]

    The difficulty with this is that her recollection of coming out of the house, shortly before the offending occurred, when the applicant and Mr McGuigan were talking at the table was not “wrong”. It was simply that that occurred some 14 minutes prior to her coming out with the final cigarette. Similarly, her recollection of getting a drink from the fridge before this was not “wrong”, albeit that she described a Powerade and not a Red Bull and again, this was not at the time when she went out with the final cigarette. Whilst aspects of the complainant’s account were inaccurate, and as I have already observed, she conflated two occasions around 14 minutes apart, the suggestion which the cross-examiner made to the applicant, and which she accepted, that how she recalled it was “just wrong” and “incorrect” was unfair in circumstances where she was not aware of the CCTV footage from 8:46:24 am that morning.

31. [99]

    It is no answer to this to say that the cross-examination was focussed on only the last time that the complainant walked out of the house to the yard before the offending occurred or that it was focussed on when she had the last cigarette. The period addressed by the complainant’s responses to the questions put to her plainly covered the two (conflated) instances, within 14 minutes, when she went from the house to the yard. In any event, the passage of cross-examination at [72] above commenced with a focus upon the period of time between when the applicant wheeled the bin in and when the complainant came out with the final cigarette. Whilst the cross-examiner later focussed upon the period before and when the complainant came out and had the final cigarette, considering the passage of cross-examination as a whole, it cannot be said that the period focussed upon in the questioning was pinpointed only to that time.

32. [100]

    Moreover, having shown the complainant the clip of CCTV footage at around 9 am, the cross-examiner put the bald proposition to the complainant, twice, that she didn't walk out of the house to the applicant and Mr McGuigan sitting at the table talking to one another. That is exactly what the CCTV footage showed that the complainant did about 14 minutes earlier. The proposition that she was “just wrong” in her evidence that that had occurred was unsustainable having regard to the CCTV footage.

33. [101]

    The contention that the language and framing of the comment, and its lack of balance, caused a miscarriage of justice should also be rejected. This is so for essentially four reasons. First, the trial judge took care to introduce the comment by reminding the jury that they could disagree with and completely disregard the comment. She also reminded the jury, later in the comment, that questions of fact, including credibility, were for them alone to determine. In this way, the jury was clearly reminded of the respective roles of judge and jury.

34. [102]

    Second, the trial judge did not put her comment higher than that “it appears that the complainant was potentially confused or misled” and then explained what she meant by that, being that the complainant had agreed that she was wrong because she was not shown the CCTV footage from around 8:46 am. Read as a whole, it is clear that the use of the words “potentially confused or misled” is to paraphrase or capture the fuller explanation, and that the trial judge did not suggest anything more than that what she was describing had “potentially” occurred.

35. [103]

    Third, the trial judge limited her comment to one that the jury could, if they found that the complainant was confused or misled, take that into account when considering “the credibility and reliability of her evidence as to her movements at that time”. The trial judge did not suggest that those matters would have any broader significance for the jury’s task. At the end of the comment the trial judge repeated this direction as to how the jury could rely upon the matters she was raising and explained that this was the sole purpose of her bringing this to the jury’s attention.

36. [104]

    Fourth, the trial judge carefully directed the jury that they “must not” be prejudiced against the applicant or his lawyers in any way at all as “errors” are occasionally made in trials. In this context, noting this direction, use of the language of “error” does not occasion prejudice. Indeed, it suggests that the failure to draw the earlier CCTV footage to the complainant’s attention was an error rather than that it was a deliberate tactic of the applicant’s legal team. The language or effect of the comment falls well short of causing the inevitable prejudice of which the applicant complains. Rather, it was framed carefully and in terms that the jury would have been well able to understand and follow. Whilst the assumption that juries will understand and follow judicial directions is not immutable: see eg Moore (a pseudonym) v The King [2024] HCA 30; 98 ALJR 1119; 308 A Crim R 592 at [42] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ), there is no reason here not to assume that the jury followed those directions.

37. [105]

    In these circumstances, the comment did not “deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence[s] beyond reasonable doubt”: Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 at [45] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); see also Huxley v The Queen [2023] HCA 40; 98 ALJR 62 at [40]-[41] (Gordon, Steward and Gleeson JJ).

38. [106]

    I would also reject the applicant’s contention that the trial judge was precluded from commenting on the relevant passage of cross-examination given that the Crown did not recall the complainant to give further evidence about what was shown by the CCTV footage at around 8:46 am. There may be many reasons why the Crown considered it preferable to deal with the relevant passage of evidence by submissions rather than by recalling the complainant. Nor was the Crown precluded from making a submission that the complainant may not have given the evidence that she gave if she had been shown the CCTV footage from around 8:46 am before she was cross-examined in the way she was. In these circumstances and having regard to the submissions that were made by the Crown and by senior counsel for the applicant, the trial judge did not err in making the comment.

39. [107]

    It follows that ground two must be rejected.

Ground three

1. [108]

   The issue raised by ground three is whether a miscarriage of justice was occasioned by the trial’s judge’s direction to the jury as to the element of intoxication. The applicant accepts that he requires leave under r 4.15 of the Criminal Appeal Rules to appeal on this ground as neither counsel at trial raised any objection or concern about the trial judge’s direction now complained of in this ground.

2. [109]

   As was emphasised by the Chief Justice in Gould v R [2023] NSWCCA 103; 308 A Crim R 14; 377 FLR 26 at [82]-[90] (Rothman and Garling JJ agreeing), leave under r 4.15 will be granted in an applicant’s favour where there has been a miscarriage of justice such that the applicant has lost a real chance of acquittal or, generally, where a necessary element of a fair trial was overlooked.

3. [110]

   By way of context, at the time of the offences, s 61HE(4)(b) of the Crimes Act (previously s 61HA(3)(e) and now s 61HK(5)(b)), which relates to findings about an accused’s knowledge about consent, stated:

4. [111]

   In the second reading speech following the introduction of the Crimes Amendment (Consent – Sexual Assault Offences) Bill 2007 (NSW), which amended the Crimes Act including to add s 61HA(3)(e), (which, as I have noted, is the predecessor to, and relevantly similar to, s 61HE(4)(b) of the Crimes Act at the time of the offences) the Attorney General and Minister for Justice said:

5. [112]

   Section 61HA(3)(e) of the Crimes Act was considered by this Court in Day v The Queen [2017] NSWCCA 192. Johnson J (with whom Rothman and Lonergan JJ agreed) said at [35]-[36]:

6. [113]

   In Pender v The King [2023] NSWCCA 291, where the issue was as to the approach of a sentencing judge to the issue of intoxication, Simpson AJA referred to Johnson J’s statement in Day that the accused must be treated as being sober and observed at [41] (Rothman and Cavanagh JJ agreeing):

7. [114]

   In Fisher v The Queen [2021] NSWCCA 91, again in the context of sentencing, Brereton JA at [27] (Fullerton J agreeing at [74]) referred to s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides that self-induced intoxication is not to be taken into account as a mitigating factor and explained that that is “not the same thing as saying that an offender is to be sentenced on the (false) assumption that he or she was sober”. By contrast, also in Fisher, Adamson JA said that Day stands for the principle that the effect of s 61HA(3)(e) of the Crimes Act was that the jury was required to treat the applicant as if he was sober: at [224].

8. [115]

   Whilst the applicant did not contend that Day was wrongly decided, he did contend that proceeding on the basis that an accused is sober is to ask the jury to construct a hypothetical state of mind for an accused, rather than to focus upon the accused’s actual state of mind. He described that process as “fraught”.

9. [116]

   The language of s 61HE(4)(b) is difficult. By directing the trier of fact not to have regard to self-induced intoxication, Parliament has required that findings are made by reference to something other than the actual state of mind that an intoxicated accused had. There is necessarily an element of reconstruction in that exercise. The trier of fact must make findings, and for that purpose likely draw inferences, as to the accused’s knowledge on what may be a hypothetical assumption that his or her state of mind was not impacted by intoxication. As the applicant submitted, however, what is important in this fact-finding process is that the focus remains steadfastly on the accused, his or her state of mind, and the circumstances (other than self-induced intoxication) of the offending. The jury must not be invited to speculate as to something other than an accused’s actual state of mind, albeit with the adjustment Parliament has required.

10. [117]

    In this process the fact-finder can plainly not postulate actions that the accused might or might not have taken if he or she had not been intoxicated. Nor can the fact-finder reconstruct events by reference to things that may or may not have occurred, had the accused not been intoxicated. All that that fact-finder can, and must, do, is to ignore the accused’s self-induced intoxication when having regard to all of the circumstances for the purpose of making findings as to whether or not the Crown has proved knowledge within the meaning of one of the three limbs of s 61HE(3) of the Crimes Act. This is how I would understand what Johnson J said in Day. The focus must be on the particular accused in the circumstances of the actual offending. Inferences may be drawn from those circumstances as to what knowledge the accused had, and findings may be made on the basis of those circumstances and any inferences drawn therefrom. In that process, however, self-induced intoxication must be put to one side entirely.

11. [118]

    Before turning to the trial judge’s summing up, it is important to observe that, as noted above at [44], the accused’s intoxication was relied upon by the Crown as an explanation for why the applicant misinterpreted the massage on the morning of 1 January 2020, and as something which motivated him to initiate and complete the sexual activity which comprised the offending. Section 61HE(4)(b) had no relevance in this regard, as this submission was not addressing the applicant’s knowledge for the purposes of s 61HE(3) of the Crimes Act. The effect of the Crown’s submission was, however, that the jury had to consider whether to make a finding that the applicant was intoxicated and to take the applicant’s intoxication into account in its deliberations in one respect, in circumstances where it had to ignore that circumstance when considering whether the Crown had proved knowledge that the complainant did not consent to sexual intercourse or touching. The trial judge thus needed to approach her directions to the jury as to the relevance of intoxication with some care.

12. [119]

    The trial judge gave the jury directions as to knowledge early in her summing up. She stated:

13. [120]

    The applicant made two complaints about this before this Court. First, he submitted that the trial judge erred in directing the jury to consider whether the accused was intoxicated in the first place. He submitted that that turned s 61HE of the Crimes Act “on its head” because it does not require that any finding be made as to intoxication, its operation is to exclude it. I accept that there is nothing in s 61HE(4) that requires the finder of fact to make any finding as to whether or not an accused was intoxicated. However, there may well be cases, and this is one, where the evidence is such that the jury may well form the view that an accused was intoxicated and that that intoxication was self-induced. That is so, irrespective of the fact that the applicant (understandably, given the terms of s 61HE(4)(b)) did not seek to rely upon intoxication as a reason why the jury would not find that he had the requisite knowledge to be guilty of the offences with which he was charged.

14. [121]

    As I have already observed, the Crown relied upon what it submitted was the applicant’s intoxication in its closing. The applicant’s evidence was that he drank beers, scotch and shots of different types of alcohol over the course of the party, and he gave evidence of having had two lines of cocaine between 1 am and 5 am. There was also a suggestion by the Crown, based upon the CCTV footage, that the applicant may have had cocaine at around 6:15 am on the morning of 1 January 2020. In these circumstances, there was no error in the trial judge directing the jury as to what they must do “if [they] consider[ed] that the [applicant] was intoxicated by voluntarily drinking alcohol and/or taking drugs”. That direction catered to the nature of the evidence adduced and submissions made in the trial. The evidence and submissions raised a real possibility that the jury might find that the applicant was intoxicated at the time of the offending. That real possibility was catered for in the direction. Her Honour was plainly not inviting the jury to make such a finding, still less directing that the jury was required to make a finding as to whether the applicant was intoxicated.

15. [122]

    The second complaint the applicant made about the trial judge’s direction as to s 61HE(4)(b) was that it was, in effect, an invitation to the jury to speculate about a hypothetical person rather than to approach the question of the applicant’s knowledge by reference to the applicant’s actual state of mind at the time of the offending. I accept that, if this was the effect of the trial judge’s direction, then it would have been erroneous. I do not, however, accept that the direction had that effect. This is because the trial judge very clearly directed the jury that the element of knowledge raised a question about the applicant’s actual state of mind, then paraphrased that as “what he knew, thought or believed”. She also, correctly, twice directed the jury that they must ignore any intoxication when considering this. It was only after this that, in what was clearly an attempt to paraphrase what this meant, she directed the jury that the element of knowledge must be decided “by considering what the [applicant’s] state of mind would have been if [he] had not been intoxicated”. Having regard to the direction as a whole, I would reject the applicant’s contention that the trial judge erred in law in giving this direction. Read as a whole, the direction maintained the necessary focus on the applicant’s actual state of mind but directed the jury to consider this by putting any self-induced intoxication to one side.

16. [123]

    Nor, contrary to the applicant’s contention, do I consider that the position is otherwise if the trial judge’s direction is considered against the background of the Crown’s closing. The Crown (having invited the jury to consider the applicant’s intoxication “in assessing why things happened the way they did”) submitted in closing that:

17. [124]

    Towards the end of the closing address, the Crown stated:

18. [125]

    These submissions did not invite the jury to consider the element of knowledge by reference to some hypothetical person rather than by reference to the applicant himself. The focus of the submissions remained, appropriately, on the state of mind of the applicant, adjusted to exclude the effect or impact of self-induced intoxication. Provided that there is the necessary focus upon an accused’s actual state of mind, there is no error in approaching the difficult task of explaining how s 61HE(4)(b) works by seeking to paraphrase “ignoring intoxication” by using the words “as if he were sober” or, as the trial judge directed, “if [he] had not been intoxicated”. Contrary to the applicant’s submission, the use of those words does not bring “a hypothetical reasonable sober person into the story”. Applying the principles set out at [105] above, I am satisfied that the jury was not deflected from its fundamental task. There was no miscarriage of justice.

19. [126]

    In these circumstances, leave should be refused under r 4.15 of the Criminal Appeal Rules to raise this ground.

20. [127]

    I would, however, add that it is important that directions to the jury as to the effect of s 61HE(4)(b) are unambiguous in emphasising that, when applying this subsection, there is no room for hypothesising beyond that which is necessarily involved in the removal of an accused’s self-induced intoxication from the matters to be taken into account when making findings as to an accused’s knowledge.

Conclusion

1. [128]

   It follows that the orders of the Court should be:

   1. (1)

      Leave to appeal is granted on grounds one and two;

   2. (2)

      Leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) on ground three is refused; and

   3. (3)

      The appeal is dismissed.

2. [129]

   GARLING J: I agree with the orders proposed by Stern JA and with her Honour’s reasons. I have no reason to doubt the applicant’s guilt on all counts upon which he was convicted by the jury.

3. [130]

   SWEENEY J: I have had the benefit of reading in draft the judgment of Stern JA and am grateful for her Honour’s clear analysis of the evidence in the trial and the issues in this appeal. I agree with the orders proposed by her Honour and her reasons for them.

4. [131]

   In respect of ground 1, on my own independent assessment of all the evidence in the trial, including the complainant’s almost immediate distressed complaint to family members, I do not have a reasonable doubt about the applicant’s guilt of the offences of which he was convicted, and nor should the jury have had such a doubt.