Lazarus v R

1. [1]

   HOEBEN CJ at CL: I have read with gratitude the judgments of Adams J and Fullerton J. I particularly appreciate the detailed and comprehensive analysis of the evidence by Fullerton J. The difference between the approach followed by each of their Honours is conveniently set out by Adams J in para [11]. Adams J has approached Ground 1 on the basis that it must be considered on the assumption that the trial judge’s direction was correct. Fullerton J has approached the matter on the basis that the correct (as this Court has determined) direction was given.

2. [2]

   As their Honours have made clear, the outcome is the same whichever approach is followed. In my opinion, this case factually is not a good vehicle to decide the issue which has been raised. Speaking for myself, I have doubts as to whether the correct approach under s 6(1) of the Criminal Appeal Act 1912 (NSW) with respect to Ground 1 is to make an assessment of the evidence on the assumption that the trial judge’s direction was correct in circumstances where this Court has decided that such was not the case. Since the result is the same, whichever approach is followed, I prefer not to express a final view on the matter.

3. [3]

   Accordingly, I agree with their Honours that Ground of Appeal 1 has not been made out. I agree with their Honours that Ground of Appeal 2 has been made out as discussed by Fullerton J. I agree, for the reasons set out by Adams J, that the correct application of s 8(1) of the Criminal Appeal Act requires that there be a new trial.

4. [4]

   For those reasons, I agree with the orders proposed by Fullerton J.

5. [5]

   ADAMS J: As Fullerton J has pointed out, at the close of the hearing of the appeal, the Court stated its conclusion that Ground 2 should be upheld and reserved its position on Ground 1. The appellant contended under that ground that the verdict “is unreasonable or cannot be supported having regard to the evidence”, relying on s 6(1) of the Criminal Appeal Act 1912 (NSW). Fullerton J has concluded, in substance, that it was open for the jury to conclude beyond reasonable doubt both that the complainant had not consented and, at least, that it was not reasonably possible that the appellant was not reckless as to whether she had consented or not (thus not needing to consider whether he mistakenly believed on reasonable grounds she was consenting), hence that the verdict was not unreasonable or unsupported by the evidence. It followed, therefore, that the appropriate orders are that the conviction should be quashed (Ground 2 having been upheld) and a new trial ordered. I agree with these orders but have arrived at that conclusion by a somewhat different route.

6. [6]

   The issue to be determined under Ground 1 is whether it was open to the jury to conclude beyond reasonable doubt that the elements of the offence had been proved. There was no dispute about whether penile/anal intercourse occurred. This left the question of consent which, essentially, comprised two questions: firstly, whether the evidence proved that there was no reasonable possibility that the complainant consented to the alleged intercourse; and, secondly, whether it was not reasonably possible that the appellant did not know the complainant was not consenting. Section 61HA(3) of the Crimes Act 1900 (NSW) applied in this case to enable the Crown to establish the latter element by proving either that the appellant actually did know the complainant was not consenting or was reckless as to whether she was consenting or not or had no reasonable grounds for believing (if it were reasonably possible that he did so) that she was consenting (the Ground 2 issue). For the reasons explained by Fullerton J, the Court concluded that the direction given by the learned trial judge erred in instructing the jury – having dealt with recklessness – that, if it considered that the complainant’s actions “caused a belief in the mind of the the appellant that she was consenting to penile/anal intercourse with him and you consider that such a belief was a reasonable one”, the Crown had not proved the requisite knowledge; this significantly departed from the statutory test, which (in the event that there was a reasonable possibility that the appellant believed the complainant was consenting) required proof that there were no reasonable grounds for believing the complainant had consented. (I mention, in the interests of completeness, that s 61HA(3)(c) does not require that the reasonable grounds must be caused by a complainant’s actions but simply that they be present. However, this distinction was not material in the circumstances of this case and was not the subject of argument. I say no more about it.)

7. [7]

   The need to consider Ground 1 arises from the possibility that the Court’s conclusion about Ground 2 might be mistaken and ought not to have allowed the appeal on that ground. For this reason, Ground 1 must be considered on the assumption that the trial judge’s direction was correct. It is not necessary, indeed in principle it is impossible in my respectful view, to consider the propriety of the verdict upon the assumption that the correct (as the Court determined) direction was given, essentially because ex hypothesi the jury’s verdict was not and could not have been based upon it.

8. [8]

   In SKA v The Queen [2011] HCA 13; 243 CLR 400 the Court described the task of the Court of Criminal Appeal in respect of a s 6(1) ground as follows (footnotes inserted into text) –

9. [9]

   The import of the requirement that the Court must make its independent assessment of the evidence was clearly stated when dealing with the approach taken in the case under appeal when their Honours stated –

10. [10]

    Where the evidence is conflicting and depends on accepting or rejecting the whole or part of a witness’ evidence, it will almost always be the case, as it seems to me, that – except for those circumstantial cases where objective evidence is determinative – the transcript will not provide a sufficient basis for a conclusion beyond reasonable doubt, quite apart from any inherent weaknesses that the evidence might itself demonstrate. The reference to the doubt that might be experienced by an appellate court necessarily involves the independent consideration by the court of the evidence. The question whether the court of appeal is satisfied that the appellant is guilty of an offence may therefore (and most often will) resolve itself into the question whether, where the evidence before the court comprises transcript of contested evidence as the only or principal basis for determination, the ensuing doubt is allayed by the jury’s advantage in seeing and hearing the witnesses. Characterising the task required by Ground 1 as ascertaining whether it was open to the jury to convict is thus not quite so simple as the phrase suggests.

11. [11]

    In this case the Court has concluded that the verdict cannot stand because of the misdirection as to a fundamental element of the offence, namely as to whether the appellant knew that the complainant had not consented to anal intercourse. As to that issue, therefore, there has been no decision by the jury to which the Court can defer to resolve any doubt that it might have about whether this this element were proved. Given the verdict, it is clear that the jury concluded beyond reasonable doubt that the complainant had, indeed, not consented. But this conclusion would not have required the jury to have accepted as reliable the whole of the complainant’s evidence about what actually occurred including, in particular, the extent to which she might have given the appellant to understand that she was not consenting or the extent to which what happened had or might have conveyed that message. Nor can this Court act on the basis of any such assumption. In addition, there was evidence (as set out in Fullerton J’s judgment) that justified the conclusion that the complainant was “substantially intoxicated” within the meaning of s 61HA(6)(a) and thus had not consented, whatever her conduct might have been or have suggested and it cannot be known whether this aspect of the evidence led the jury, or some of them, to conclude that the complainant had not consented and thus to avoid the necessity of deciding to what extent her account of what happened was reliable. Accordingly, the verdict provides no information about the intermediate findings of fact, even on the element of consent.

12. [12]

    The same is true of the issue of knowledge of consent, with the additional problem that the jury were (as we have held) misdirected as to one of the alternative bases for holding that he knew the complainant had not consented. Although it is true that there was no misdirection on the issue of recklessness, it cannot be known whether the jury found that the Crown had proved he had been reckless as distinct from concluding (in line with the impugned direction) that it was not reasonable to think that she was consenting. Of course, this was an issue, the sub-elements of which did not require unanimity. It follows that the issue of recklessness is not informed at all by the jury’s verdict. On this question, as Fullerton J has shown, there were conflicting accounts of the complainant and the appellant as to what had occurred, as well as the appellant’s evidence as to what he believed and why he believed it. In my view, the relevant issues cannot be decided by the Court – certainly beyond reasonable doubt – by considering the transcripts of evidence. Given the impenetrability of the verdict, it cannot be known whether the jury had found it necessary even to consider the issue of recklessness, let alone what conclusions they or some of them might have reached. It follows that a doubt which the Court might have (as I have explained, must have) cannot be resolved by considering the verdict and the advantage the jury had in seeing and hearing the witnesses. Thus, the Court cannot (in the language of the majority in SKA at [20]), be “satisfied that the applicant was guilty of the [offence]”; in other words, if it approaches Ground 1 on the basis that the direction as to consent was correct, it must then have a doubt about guilt and that doubt cannot be resolved by reference to the jury’s advantage in seeing and hearing the witnesses. Nor, in my respectful opinion, can Ground 1 be disposed of by any conclusion that it was open to the jury to find that there was no reasonable possibility that the appellant was reckless as to whether the complainant consented or not. That it was so open is only true in a general sense but not in the sense that the test is to be understood in light of the authorities and SKA in particular. The same reasoning applies to the second possibility that there were no reasonable grounds for believing the complainant was consenting to intercourse, with the additional factor that it is known that the jury did not consider this question but the different question posed by the impugned direction.

13. [13]

    Accordingly, in my respectful opinion, this Court should approach Ground 1 on the basis that, as its conclusion about Ground 2 might be held to be wrong, it needs also to decide Ground 1 to enable disposition of the entire appeal. With respect, as a matter of principle it is incorrect to ask (in this case) whether it would have been open to the jury to convict had the direction accorded with the Court’s view of s 61HA(3)(c), in short, to ask whether there was evidence that justified the conclusion that there were no reasonable grounds for believing, albeit mistakenly, that the complainant was consenting to intercourse, let alone whether it was open to the jury to conclude that the complainant was reckless as to whether the complainant was consenting: these are not and do not inform the issues posed by Ground 1, since the verdict cannot inform those questions. As I stated at the outset, I respectfully consider that correct question is whether, assuming the impugned direction to have been correct, the verdict was unreasonable or unsafe according to the evidence or, in the refined sense to which I have referred, whether the verdict was open to the jury or it ought to have had a reasonable doubt about the appellant’s guilt.

14. [14]

    I respectfully agree with Fullerton J that the verdict was not unreasonable or unsafe, for reasons which may (her Honour having helpfully set out the evidence and dealt with the submissions) be shortly stated.

15. [15]

    The fundamental question is whether the complainant could be believed. For the reasons expressed by Fullerton J I agree that this should be answered in the affirmative. It is fair to say that there were some weaknesses in her evidence, possible questions about her reliability in some respects and ambiguities about her conduct. However, these do not by any means suffice to justify the conclusion that a jury could not accept her as a reliable and truthful witness in respect of the matters which the Crown needed to prove beyond reasonable doubt before the appellant can be convicted. Obversely, although the appellant was capable of belief, whether he should have been believed or his evidence raised a reasonable doubt about any of the elements of the charge was very much a matter for the jury. The criticisms which have been levelled at the complainant’s evidence, though not unreasonable of themselves and capable of being regarded as significant, are not such that it should be concluded that the jury ought to have entertained a reasonable doubt about the appellant’s guilt. The assessment of the concessions made by the complainant in her evidence, which have been identified by Fullerton J, depends a great deal on the manner in which they were made and apparent contradictions denied or explained. Such a judgment was well within the province of the jury to make and, taking these matters both individually and overall, I would not conclude they were such as ought to have given rise to a reasonable doubt about the appellant’s guilt. Very much depended on the judgment made of the respective credibility of the complainant on the one hand and the appellant on the other and, to my mind, the jury’s advantage in seeing and hearing them give evidence about the issues raised on the appellant’s behalf and which Fullerton J has identified resolves the doubt that I would otherwise have had about the latter’s guilt.

16. [16]

    It was conceded on the appellant’s behalf that, if he succeeded on Ground 2 but not on Ground 1, the appropriate order is that there should be a new trial in accordance with s 8(1) of the Criminal Appeal Act. In Gilham v R [2012] NSWCCA 131; 224 A Crim R 22, McCellan CJ at CL usefully and uncontroversially (though his Honour dissented as to other matters) summarised the matters to be considered under s 8(1) (references omitted) -

17. [17]

    Except in respect of the contention that it was not open on the evidence to convict the appellant, none of the considerations militating against an order for a new trial were pressed on the Court. For present purposes it suffices to say, therefore, that the only controversial matter concerns the strength of the Crown case. It follows from the conclusion as to Ground 1 that the evidence is such as to justify a new trial, though I emphasise that this does not imply a final conclusion about the credibility either of the complainant or the appellant. That being so, it seems to me that the seriousness of the alleged crime, the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury and the absence of any countervailing considerations require an order for a new trial. Accordingly, I agree with the orders proposed by Fullerton J.

18. [18]

    FULLERTON J: The appellant appeals his conviction on one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW), following a jury trial in the District Court.

19. [19]

    On 27 March 2015 he was sentenced to imprisonment for 5 years with a non-parole period of 3 years. There is no appeal against sentence.

20. [20]

    The appellant filed three grounds of appeal, although ultimately only Grounds 1 and 2 were pressed on the hearing of the appeal.

21. [21]

    They are as follows:

22. [22]

    On the hearing of the appeal the Court was satisfied that the trial judge’s directions the subject of the second ground of appeal were in error. Although no redirections were sought at trial, the Crown did not seek to invoke Rule 4 of the Criminal Appeal Rules (NSW) and did not submit the proviso was applicable. The Court reserved its decision on the first ground of appeal, noting at that time that its consideration of that ground of appeal would dictate whether a verdict of acquittal would be entered or a retrial ordered under s 8(1) of the Criminal Appeal Act 1912 (NSW).

23. [23]

    The Crown case

24. [24]

    It was the Crown case that the complainant had penile-anal intercourse with the accused without her consent. That she had penile-anal intercourse with the appellant was not in dispute. What was in dispute was whether the Crown could establish, to the criminal standard, that she did not consent to anal intercourse and, in accordance with the legal test for knowledge about consent in s 61HA(3) of the Crimes Act, either that the accused knew she was not consenting or was reckless as to that fact or that there were no reasonable grounds upon which he had any belief that she was consenting.

25. [25]

    It was also the Crown case that the circumstances in which sexual intercourse occurred, including when it occurred, where it occurred and how it occurred, what the complainant said before intercourse and during intercourse and the appellant’s treatment of her at that time, would satisfy the jury that the complainant was not consenting to anal intercourse and that the appellant knew she was not consenting, or was at least reckless as to whether or not she was consenting. It was the appellant’s case that the complainant willingly and actively participated in anal intercourse with him and that nothing she said or did caused him to have any reason to doubt that she was a consenting sexual partner.

Summary of the evidence at trial

1. [26]

   On the evening of 11 May 2013 the complainant, then aged 18, travelled from the Central Coast to Sydney with friends to celebrate a friend’s birthday at Kings Cross. She had arranged to stay at her sister’s apartment in Lane Cove overnight. It was the complainant’s first visit to Kings Cross.

2. [27]

   Prior to leaving her sister’s apartment at Lane Cove, and making her way to Kings Cross by train, the complainant and BW each prepared a medium soft drink bottle with a mixture of Coca Cola and bourbon. They took the mixed drinks with them.

3. [28]

   By about 11.15pm the complainant and her friend met other friends by pre-arrangement at McDonalds Restaurant on Darlinghurst Road, Kings Cross. After BW and the complainant finished their pre-mixed drinks at the restaurant, they went first to The World Bar on Bayswater Road, Kings Cross, and later to Soho Nightclub (“Soho”) on Victoria Street. The complainant and BW travelled between The World Bar and Soho over the course of the next five hours or thereabouts, consuming a number of alcoholic drinks over that period, seeing their other friends from time to time at both places. The complainant gave evidence that she had sixteen standard drinks while BW said they drank ten.

4. [29]

   One of the issues in the trial was the complainant’s state of intoxication at the time she first met with the appellant on the dance floor of Soho within minutes of re-entering Soho with BW at approximately 4am, and her state of intoxication within minutes of that when she accompanied him from the dance floor to a laneway at the rear of Soho where they had intercourse.

5. [30]

   The extent of the complainant’s intoxication was an issue at the trial because of its potential to impact on the issue of consent. Section 61HA(6)(a) of the Crimes Act provides that:

6. [31]

   CCTV footage of the complainant and BW whilst they were at the McDonalds Restaurant, Darlinghurst Road at 10.50pm to 11.18pm was tendered, together with a compilation of various pieces of CCTV footage at Soho, including the complainant and BW entering Soho at 3.55am and the complainant being approached by the appellant on the dance floor inside Soho minutes later at 3.59am. The compilation disk also shows the complainant and the appellant in one another’s company at the base of a set of stairs leading from the dance floor two minutes later at 4.01am and then leaving through the rear door of Soho into Hourigan Lane at 4.02am. Hourigan Lane is a dead-end lane which runs parallel to Victoria Street. The compilation disk concludes with an image of the complainant rejoining BW approximately thirty minutes later at the Kings Cross train station after having had intercourse with the appellant in Hourigan Lane.

7. [32]

   The jury were taken on a view of the various premises referred to in the trial, including the dance floor at Soho, the stairs descending to the rear of Soho and Hourigan Lane where they were invited to note the position of two CCTV cameras overlooking the laneway: the first located at the rear of the premises neighbouring Soho; the second located at the rear of another premises further north in the lane. Neither of these cameras were operating on the night of 12-13 May 2013. It was common ground that the part of Hourigan Lane where the appellant took the complainant, with the intention of having sexual intercourse with her, was not within range of either of the CCTV cameras.

8. [33]

   The complainant described the appellant’s approach to her on the dance floor. She said they had a brief conversation, in the course of which the appellant told her he was a part owner of the nightclub and asked whether she had met the DJ. The complainant replied that she had not. (The appellant’s father was a part owner of the club where the appellant was employed on a casual basis.) The complainant said she went with the appellant to the DJ booth located to the side of the dance floor out of the range of the CCTV camera. The camera did record the appellant’s initial approach to the complainant on the dance floor and what appeared to be their first verbal exchange. The complainant said in her evidence in chief that when they were at the DJ booth she held hands with the appellant.

9. [34]

   It was the appellant’s case at trial that he and the complainant were most intimately engaged at the DJ booth (that is, within the first two minutes of their meeting), including him touching her buttocks, and that this encouraged him to think she would have sex with him and ultimately to believe that she was consenting to the anal intercourse that occurred (also within minutes) in the laneway.

10. [35]

    The appellant’s evidence in chief was as follows:

11. [36]

    The appellant accepted in cross-examination that his estimate of the time they were in the intimate exchange at the DJ booth he described in his evidence in chief was considerably less than five minutes given that the CCTV footage shows him approaching the complainant on the dance floor at 3.59am and that two minutes later they had moved down the stairs from the dance floor, into the cloakroom/toilet area where the rear door leads into the laneway.

12. [37]

    The complainant was not asked in cross-examination whether the appellant was touching her in the sexual suggestive way he described in his evidence, or whether she had her hands “around” him. The cross-examination of her on this issue was as follows:

13. [38]

    The complainant gave evidence that it was whilst she was at or near the DJ booth that the appellant proposed, and she agreed, that she go with him to what he called a “VIP area” and that he led her from the dance floor down a short flight of stairs. The CCTV compilation disc showed the appellant and the complainant emerging from the stairs into the cloakroom/toilet area.

14. [39]

    There was an issue at trial as to whether the appellant spoke to anyone in the cloakroom before he opened the rear door and beckoned, and then ushered the complainant outside as revealed in the CCTV compilation disc. The appellant gave evidence that he introduced the complainant to the cloakroom attendant. The complainant was not invited in cross-examination to confirm that he did. The CCTV footage did not clarify the issue.

15. [40]

    The complainant gave evidence that when she left the dance floor with the appellant, she thought she had consumed approximately sixteen standard drinks over the course of that night and that she was feeling its effects. She gave the following evidence:

16. [41]

    The Crown relied upon the CCTV footage showing the complainant at the rear door before leaving through it with the appellant and what the Crown submitted the jury would infer from her movements at that time, including her momentary stagger and her leaning on the wall for support, as to her state of intoxication.

BW’s evidence

1. [42]

   BW estimated that from arriving at McDonalds at 10pm to returning to Soho at around 4am, the complainant had consumed approximately ten standard drinks, as had she. When asked how the alcohol had affected her, she said:

2. [43]

   During cross-examination, the BW was taken to the witness statement she provided to police on 12 May 2013:

3. [44]

   The statement of ET, another friend of the complainant, was read to the jury by consent. She described seeing the complainant at McDonalds at around 3:30am:

4. [45]

   The complainant’s sister, AM, gave evidence that she received a phone call from the complainant at about 3am on 12 May 2013 to confirm the address of her apartment. She described her sister as “moderately intoxicated and sounded happy, like she was having a good time”.

5. [46]

   During cross-examination, AM was taken to her witness statement:

6. [47]

   It was the defence case that the complainant was deliberating exaggerating the amount she had drunk and its effects. When that was put to her in cross-examination she disagreed. The appellant gave evidence that when they left the club and entered Hourigan Lane he believed the complainant was not affected by alcohol. He did not agree that the complainant was steadying herself by placing her hand on the wall before exiting.

7. [48]

   The complainant gave evidence that after leaving through the rear door and going down some stairs, they walked for about 50 metres along the lane before they stopped near a fence and began to kiss. The appellant gave evidence that once outside in the laneway, he and the complainant held hands and jogged – he said the complainant “was almost skipping” – to the end of the lane where they started kissing. The complainant was not invited in cross-examination to confirm or deny that she “jogged” or “skipped” down the laneway.

8. [49]

   The complainant gave evidence in chief as to what happened at the end of the laneway as follows:

9. [50]

   As to the intercourse whilst she was on the ground, the complainant said:

10. [51]

    The complainant gave evidence that she thought the penetration of her anus continued for about ten minutes. She was uncertain as to whether the appellant ejaculated. She did not believe he used a condom. She gave the following evidence:

11. [52]

    The following day, the complainant underwent a forensic examination at North Shore Hospital. An anal swab taken in which semen was detected. The DNA in the anal swab was a mixture of the appellant’s DNA and the complainant’s DNA. DNA was recovered from a vulval swab that was also a mixture of the complainant and another person. The appellant could not be excluded as the contributor to that mixed sample.

12. [53]

    The complainant also gave the following evidence as to what occurred after the anal intercourse:

13. [54]

    When asked by the Crown what she did next, she said:

Evidence of complaint

1. [55]

   On arrival at the station, the complainant telephoned BW who arrived shortly thereafter. The complainant said that she was crying and that she told BW what had happened. The complainant was unable to recall what she said to BW. BW gave the following evidence, relied upon by the Crown as evidence of complaint:

2. [56]

   BW also gave the following evidence:

3. [57]

   The two women waited for the train station at Kings Cross to open before travelling to the complainant’s sister’s apartment, from where the complainant sent a text message to her sister in the following terms:

4. [58]

   The complainant’s sister did not respond to the text.

5. [59]

   After the complainant and BW slept for about two hours, the following text message exchange passed between the complainant and her sister, also relied upon by the Crown as evidence of complaint:

6. [60]

   Evidence of complaint was also given by ST and ET, two of the complainant’s friends who were at the apartment in Lane Cove having left Kings Cross before the Complainant and BW.

7. [61]

   ST, another friend of the complainant’s friends who was in her company from time to time between McDonalds, The World Bar and Soho, described meeting the complainant and BW at The World Bar at approximately 11pm. She gave evidence that she occasionally came across the complainant and BW during the night with another friend of hers but that “there was a bit of disjoint between us and them”.

8. [62]

   ST described seeing the complainant and BW at McDonalds after 3am before she left Kings Cross and returned to the complainant’s sister’s apartment with another friend by taxi.

9. [63]

   As to the events of the following morning at the apartment, ST said:

10. [64]

    Of the morning after the incident, after ET had also spent the night at the complainant’s sister’s apartment, her statement read:

AM’s evidence

1. [65]

   Following the text message received after 10.16am the following morning (extracted above at [58]), AM gave evidence that she immediately telephoned the complainant:

2. [66]

   The complainant attended Chatswood Police Station with her sister where she spoke to police and gave them the clothes she wore to Kings Cross the previous night.

3. [67]

   The statement of the police officer to whom the original complaint was made at Chatswood Police Station was read to the jury by consent. The statement described the complainant’s account of the events leading to the anal intercourse:

4. [68]

   A forensic examination was then undertaken at Royal North Shore Hospital, including an internal examination. The complainant gave an account of the incident to the examining doctor at Royal North Shore hospital which the doctor recorded as follows:

5. [69]

   The examination revealed grazes on the complainant’s knees and small tears around her anus. The complainant attended Kings Cross Police Station later that day and provided a statement to police.

Cross-examination of the complainant

1. [70]

   Various propositions were put to the complainant in cross-examination, where she was invited to concede that some aspects of the events of the evening, and important details of her sexual engagement with the appellant, had been omitted in her evidence in chief. The cross-examination was directed to challenging her credit, it being the defence case that in critical respects she was lying in the evidence she gave as to what occurred in the laneway. It was the appellant’s case that, far from being a non-consenting party to anal intercourse, she was an active and willing participant throughout and that she only changed her attitude when she saw that she was the last addition to a list of female names in the appellant’s phone. It was the appellant’s case that, thereafter, she determined to make a false complaint about non-consensual anal intercourse, claiming (falsely) that she only submitted because she was in a state of fear and because her judgment was compromised because of the alcohol she had consumed.

2. [71]

   As to the events in the laneway immediately preceding the intercourse, the complainant was asked the following questions:

3. [72]

   The complainant was also taken by the cross-examiner to the account she gave to the examining doctor at Royal North Shore Hospital. It was put to the complainant that she gave the doctor a false account of the events:

4. [73]

   As to the anal intercourse, the complainant gave the following evidence in cross-examination:

5. [74]

   The complainant responded to propositions put to her about saying “Stop” or “No” during anal intercourse as follows:

6. [75]

   The complainant was taken to her first statement to police at Kings Cross police station in the following questions:

7. [76]

   It was put directly to the complainant in cross-examination that her attitude to the appellant changed when she was asked by him to add her name to the list of names in his phone, and that it was that that inspired her to make a false complaint about the appellant’s treatment of her during their sexual encounter as to which she gave the following evidence:

8. [77]

   Officer Dale gave evidence that a statement was obtained from the complainant by Officer Butler at Kings Cross Police station on 12 May 2013 in which she detailed the sexual assault and that she obtained further statements from her on 28 May 2013 and 11 October 2013. There was no evidence led from the Crown or the police as to the content of the additional statement.

9. [78]

   On 9 August 2013, the appellant attended Kings Cross Police Station with a legal representative where he was formally cautioned and charged. He declined to be interviewed. He consented to the provision of a buccal swab.

10. [79]

    Officer Dale gave evidence that she obtained data from the appellant’s phone, which included a list of female names, including the complainant’s.

11. [80]

    A text message exchange between the appellant and a friend of the appellant, Rono, sent at around 2pm on 12 May 2013 and received by the applicant was also retrieved from the phone. It read as follows:

12. [81]

    The police also intercepted a number of phone calls between the appellant and both his father and a male friend between 3 and 6 August which, in the Crown’s submission, revealed the appellant’s concern as to what the CCTV footage might have revealed and his expressions of relief when he learnt it did not show him with the complainant but interacting with another woman, with no suggestion of wrongdoing.

The defence case

1. [82]

   The appellant gave evidence that he believed the anal intercourse with the complainant was consensual and that there was nothing in her behaviour towards him, including anything that was said by her or her behaviour before or during intercourse that indicated to him that she was not consenting. Furthermore, the appellant maintained that the complainant was actively and, in his assessment, willingly engaged in anal intercourse with him.

2. [83]

   The appellant described his approach to the complainant on the dance floor, making eye contact with her, dancing with her and his invitation that she accompany him from the club to a “VIP area”.

3. [84]

   The appellant gave evidence:

4. [85]

   He said that he stopped at the cloakroom at the base of the stairs en route to Hourigan Lane (the place he appeared to nominate as “the VIP area”):

5. [86]

   The appellant gave evidence that once outside in the laneway, they held hands and jogged – he said the complainant “was almost skipping” – to the end of the lane where they started kissing. He went on to describe what happened:

6. [87]

   The appellant denied raising his voice or physically pushing or threatening her. He said that at no stage did the complainant ever say “no” or “don’t do that” to any of his sexual advances.

7. [88]

   When asked what steps the appellant took to satisfy himself that the complainant was consenting, he said:

8. [89]

   After intercourse, the appellant stayed in the laneway for some time using his phone before catching a taxi home.

9. [90]

   The appellant was taken to a series of telephone calls intercepted by police under warrant. The appellant was asked about one conversation with his father:

10. [91]

    During cross-examination, the appellant said that he made the decision to take the complainant out into Hourigan Lane to have intercourse as opposed to a storeroom or other room including a bathroom within Soho as to which he had access. The appellant agreed that he was familiar with the lane and the location of CCTV cameras in that area as follows:

11. [92]

    It was put to the appellant that as he and the complainant left Soho via the rear exit, she put her hand against a wall of the nightclub to steady herself, as the Crown suggested was shown in the CCTV compilation. The appellant did not agree that the complainant was steadying herself. The appellant gave evidence that he did not think she was affected by alcohol at that time.

12. [93]

    As to the complainant’s stockings and underwear being pulled down by the appellant as she tried to leave, the appellant said:

13. [94]

    The appellant denied using an aggressive or authoritative tone when he directed the complainant to put her hands on the fence and then to get onto her hands and knees on the ground, or that he felt frustrated or impatient. He said his tone of voice did not change. Her Honour asked the following question:

14. [95]

    The appellant said he did not tell the complainant why he wanted her to take up the position against the fence and there was no discussion with her about it. He said that he asked the complainant to get on to ground on her hands and knees to make penetration easier for both of them, after which he was asked the following questions:

15. [96]

    He said, save for the exchange about her being “tight”, there were no words exchanged between them at all during intercourse.

Ground One

1. [97]

   The obligation of the Court in considering whether a verdict of a jury is unreasonable or cannot be supposed having regard to the evidence is the subject of settled principle. The question the Court must ask itself was restated in SKA v The Queen [2011] HCA 13; 243 CLR 400 where at [11] the majority (French CJ, Gummow and Kiefel JJ) held that, in conformity with the approach by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, the question for the Court is:

2. [98]

   The majority went on to say:

3. [99]

   In Kurdi v R [2011] NSWCCA 179, Bathurst CJ said at [8] that in order to comply with M v The Queen:

4. [100]

   The appellant submits that the evidence at trial was deficient in proof of two of the three essential elements of the offence: the first that the complainant did not consent to anal intercourse, being the second element of which the jury needed to be satisfied beyond reasonable doubt if they were to find the appellant guilty; and the second (assuming proof of the first), that the appellant either knew she was not consenting, or was reckless as to the fact or had no reasonable grounds for believing that she was consenting.

Did the Crown establish beyond reasonable doubt that the complainant did not consent to anal intercourse?

1. [101]

   The appellant conceded that the complainant’s unambiguous evidence at trial was that she did not consent to anal intercourse. The appellant submitted however that the attack on her credit, in particular, what were said to be unexplained and material inconsistencies in the account she gave to her sister, police and a doctor within twelve hours of the incident, together with her behaviour on the night, including that she left the dance floor and went into a darkened laneway with a relative stranger within minutes of meeting him where she had anal intercourse, would satisfy this Court it that was not open to the jury to be satisfied beyond reasonable doubt that she was giving truthful evidence when she said she did not consent to anal intercourse.

2. [102]

   In my assessment, having considered all of the complaint evidence, the terms of the complaint made to BW, (including BW’s description of how the complainant presented to her when they met at Kings Cross train station and during the train journey to Artarmon) and then the complaint made to the complainant’s sister and her friends later that morning, and how she presented at that time, were largely consistent. It follows that I am satisfied that it was open to the jury to come to the same conclusion.

3. [103]

   I have also considered the complainant’s explanation for what were suggested by the cross-examiner to be inconsistencies in the account she gave to the doctor and the police and the account she gave in her evidence as to how she came to be on her knees on the ground, and the potential for that evidence to have impacted adversely on her credit. While it was no part of her complaint to her friends or her sister, or her evidence at trial, that the appellant pushed her to the ground (see generally the summary of her evidence and the evidence of complaint in [25]-[63]), the doctor’s notes do record that the complainant said she was pushed to the ground. The doctor did not give evidence at the trial.

4. [104]

   I accept that whether or not the complainant told the doctor that she was pushed was relevant to whether the jury could accept her as a witness of truth. On my review of that aspect of the cross-examination, it was at least open to the jury to accept the complainant’s evidence that she did not tell the doctor that she was pushed, allowing for the possibility that it may have been a transcription error on the doctor’s part. That being so, I do not regard that issue, either alone or in combination with the other challenges to her reliability, as significantly undermining her credit.

5. [105]

   As regards the complainant’s account to police that she thought she told the accused to stop when he was attempting to penetrate her anus (a qualification the cross-examiner sought to highlight as operating adversely to her credit – see [74]), in my assessment the jury would have been entitled to find that the distinction the cross-examiner sought to make between her thinking she told him to stop (in her statement to police) and her telling him to stop (her evidence at trial), was not a distinction the significance of which the complainant appeared to appreciate. If the jury assessed her evidence in that way (as it was open for them to do) the inconsistency would not have undermined the weight of her evidence, expressed categorically at trial, that when she was on the ground she told the appellant to “Stop” when he persisted in the penetration of her anus.

6. [106]

   Finally, I have given consideration to the complainant’s explanation for allowing the appellant to penetrate her anus at all. In the appellant’s submission the jury should have made the assessment that everything about the complainant's conduct both inside Soho and in the laneway indicated she was a willing sexual partner and, for that reason, they should have had a reasonable doubt on the issue of her consent to anal intercourse. That submission fails to confront the conflict between the complainant’s evidence and the evidence of the appellant as to a series of events both inside and outside Soho. Even if the divergence between the two accounts might have raised a reasonable doubt as to the complainant’s truthfulness and reliability (which, for reasons I will develop later, in my assessment it does not) the submission fails to confront the question as to why the advantage the jury enjoyed in seeing and hearing the evidence was not capable of resolving that doubt.

7. [107]

   The explanation the complainant gave for participating in non-consensual anal intercourse whilst on her knees in a darkened laneway, was to the effect that although she kissed the appellant on the dance floor and may have had some body contact with him at that time, and although she willingly went into the laneway at his invitation (although it would seem in the expectation that she was being ushered to a VIP area) and willingly kissed the appellant when there, also possibly with some body contact, she did not consent to anal intercourse (or sexual intercourse at all) but unwillingly submitted to it, and the pain that it entailed, out of fear. In short, the complainant’s evidence was that the predicament in which she found herself, in part because she was intoxicated and in part because, as she described it in her evidence, she did not know what else to do, resulted in her submitting to the appellant’s vocal demands of her first to lean on the fence and then to get on the ground and to unwillingly submit to the anal intercourse that followed.

8. [108]

   In reviewing the complainant’s evidence, I have paid full regard to the primacy of the jury as the tribunal of fact and the advantage they are to be afforded when a verdict is under challenge as unreasonable by having seen and heard the complainant give her evidence, including how she dealt with the cross-examiner’s challenge to her veracity and her reliability.

9. [109]

   I have also given close consideration to what are said to be the concessions the complainant made in cross-examination operating to undermine her credit to the extent that this Court would have a reasonable doubt about her lack of consent for that reason. The concessions (so styled) included that she may have rubbed against the appellant’s body during the kissing that preceded intercourse; that she did not voice any resistance to the appellant directing her to turn and put her hands on the fence and then to get onto the ground on her hands and knees and arch her back, or show any reticence in doing so; that she did not say “no” before or during anal intercourse and that she may have pushed back towards the appellant during anal intercourse.

10. [110]

    Depending upon the assessment the jury made of the complainant’s demeanour in the atmosphere of the trial, and such assessment of her age, maturity and experience of the world they could make from the answers she gave and how she gave them, her concession that some things suggested to her “may” have happened in her various engagements with the appellant (including that she may have pushed back during intercourse) might not have been regarded by the jury as adverse to her credit but potentially as enhancing her credbility. That she did not categorically deny all of what was suggested to her by the cross-examiner may have been treated by the jury as an acceptance by her that some things may have happened, that is, she could not recall one way or the other with absolute certainty such as to allow her to truthfully deny them, as distinct from a concession by her that what was suggested to her as something she may possibly have said or done was something she in fact said or did.

11. [111]

    Even if the cross-examination may have caused the jury to have some concerns about whether she consented, in my assessment they were not such as to raise a reasonable doubt as to that issue after taking into account all the evidence bearing on the question of consent.

12. [112]

    As the Crown pointed out, it does not necessarily follow that if the complainant did “push back during intercourse”, that this was to facilitate penetration. It may equally have been an involuntary physical response or an attempt to make penetration more difficult, leaving it open to the jury to find either that she did not “push back” or, if she did, it was not to signal her consent. As the Crown pointed out in its submissions, it was not put to her by the cross-examiner that she pushed back to willingly engage with the appellant as he penetrated her.

13. [113]

    In my view, it was open to the jury to regard such concessions as they consider she made in cross-examination (itself a jury question) as not giving rise to the reasonable possibility that she did consent to anal intercourse. That she did not consent to anal intercourse was a position from which she did not retreat.

14. [114]

    There was a dispute at trial as to the extent of the complainant’s intoxication and whether it was “substantial” such as to invoke consideration by the jury of s 61HA(6)(a). That section provides:

15. [115]

    Even if the jury were not satisfied that she was intoxicated to a “substantial” degree for the purposes of s 61HA(6)(a), the amount of alcohol she consumed (whether it be sixteen alcoholic drinks or ten), and her evidence as to its likely effect at the time of her meeting the appellant and her sexual engagement with him minutes later, remained part of the evidence available to the jury in considering whether the Crown had proved beyond reasonable doubt that she was not consenting. It was also relevant to proof of the appellant’s knowledge of that fact, including whether the Crown established the appellant had no reasonable grounds to believe she was consenting.

16. [116]

    I have also taken into account that, having seen and heard both the complainant and the appellant give their evidence, it was open to the jury to have accepted as truthful her rejection of the proposition put by the cross-examiner that upon being told by the appellant to put her name in his phone, her attitude towards him changed from being a willing and enthusiastic sexual partner to being a disgruntled and vengeful sexual partner. I also consider that it was open to the jury to have accepted as truthful her rejection of the proposition, also put in cross-examination, that she believed that the appellant had treated her as another sexual conquest and that it was that which motivated her to make a false complaint of sexual assault.

17. [117]

    After a critical review of the body of evidence to which I have referred and counsels submission about it, I am of the firm view that it was open to the jury to be satisfied beyond reasonable doubt that the complainant did not consent to the anal intercourse the subject of the charge.

Did the Crown establish beyond reasonable doubt that the appellant knew the complainant was not consenting?

1. [118]

   The primary focus of the appellant’s arguments in support of the first ground of appeal was whether there was a sufficiency of evidence upon which the jury could have been satisfied beyond reasonable doubt that the appellant knew the complainant was not consenting, the third element of the offence the Crown was obliged to prove beyond reasonable doubt.

2. [119]

   In summary, it was submitted that even were it open to the jury to be satisfied that the complainant was not in fact consenting, the evidence was incapable of establishing beyond reasonable doubt the appellant knew she was not consenting, or negativing the reasonable possibility that he believed on reasonable grounds she was consenting, and that the jury’s verdict cannot stand for that reason.

3. [120]

   The trial judge directed the jury that it was the Crown’s obligation to prove the appellant knew the complainant was not consenting to anal intercourse. In her Honour’s oral and written directions, she set out the three alternative ways in s 61HA(3)(a)-(c) that knowledge of lack of consent could be established at law: the appellant’s actual knowledge that she was not consenting; his being reckless as to that fact; or an absence of any reasonable grounds for him to honestly believe the complainant was consenting. The adequacy of her Honour’s directions as to the third of the alternate states of knowledge about consent are the subject of the second ground of appeal.

4. [121]

   In the appellant’s written submissions, the proposition was advanced that there was no evidence available to the jury to support the conclusion, beyond reasonable doubt, that the appellant actually knew the complainant was not consenting, the state of mind provided for in s 61HA(3)(a) of the Crimes Act. It was further submitted that there was no evidence to support the conclusion, beyond reasonable doubt, that the appellant realised there was a possibility that she was not consenting, but proceeded to have anal intercourse notwithstanding, or that he did not even consider whether or not she was consenting, the state of knowledge provided for in s 61HA(3)(b). Additionally, it was submitted that the evidence, taken as a whole, supported the conclusion, or at least raised a reasonable possibility that the Crown could not negative, that the appellant honestly believed, and on reasonable grounds, that the complainant was consenting to anal intercourse, the state of mind provided for in s 61HA(3)(c).

5. [122]

   The question whether the jury’s verdict is unreasonable is a question of fact. As the High Court emphasised in M v The Queen, the question whether there was any evidence to support the verdict (in this case by proof of the third element) is a question of law. That being so, I understand the appellant’s submission that there was “no evidence” to support proof of actual knowledge s 61HA(3)(a) or recklessness s 61HA(3)(b) to invite the Court to assess the adequacy and the quality of the evidence bearing upon proof of the alternate states of knowledge in s 61HA(3)(a)-(c).

6. [123]

   The Crown case at trial was that the jury would be satisfied beyond reasonable doubt that the appellant knew that the complainant was not consenting to anal intercourse, or that he was reckless as to that fact. In closing submissions the Crown drew the jury’s attention to a number of features of the complainant’s account of how the sexual intercourse occurred, and how the appellant behaved towards her immediately before and during the intercourse, which the jury were invited to accept as truthful and from which it would follow that the third element of the offence was proved beyond reasonable doubt, requiring them to return a verdict of guilty.

7. [124]

   In particular, the jury were invited to accept as truthful the complainant’s evidence that after kissing the appellant in the laneway for a time she made it clear that she wanted to return to her friend and, when she refused the appellant’s entreaties that she stay with him and turned to leave, that she was stopped by him putting his hands up her skirt and pulling down her stockings and underwear. They were also invited to reject the appellant’s denial that he acted that way. The Crown also urged the jury to accept the complainant’s evidence that on repeated occasions after her initial attempt to leave, including during intercourse, she said she wanted to go back to her friend which the appellant ignored. Although it was her evidence that after initially trying to leave she did not move away from the appellant in the direction of the door, or seek by any physical means to keep the appellant at bay, but instead that she complied with his directions (delivered aggressively) that she put her hands on the fence and then kneel on the ground and arch her back, the Crown invited to jury to accept that she acted in that way out of fear and some sense of bewilderment at her predicament, and that her submission to anal intercourse should be understood in that context.

8. [125]

   As further evidence that the appellant either knew she was not consenting or was reckless as to that fact, the jury were also reminded by the Crown that after the appellant described her as being “tight” (prompting her to tell him she was a virgin) the complainant said she asked the appellant to “Stop”, and that he said nothing in response as he continued to penetrate her anus.

9. [126]

   Finally, the Crown invited the jury to reject as untruthful the appellant’s evidence that from his first encounter with the complainant on the dance floor to his having anal intercourse with her shortly thereafter in the laneway, she presented to him as a willing, eager and enthusiastic sexual partner, and to reject as untruthful his denials that she ever told him to “Stop”, and as unpersuasive his attempt to account for the tone in which he recounted the incident to his friend by text message the following day.

10. [127]

    For reasons that are neither obvious from the Crown’s written submissions on the appeal nor express in its oral submissions, no issue was taken with the appellant’s contention that the evidence was incapable of satisfying the jury beyond reasonable doubt that the appellant had actual knowledge that the complainant was not consenting. This was so, despite that being the Crown case at trial and despite it being the Crown case on the appeal that the complainant’s evidence alone proved beyond reasonable doubt that she did not in fact consent from which, if she were accepted as a witness of truth on all matters in dispute (including, in particular, that the appellant prevented her from leaving and ignored her telling him to “Stop”) would allow for the conclusion to be reached beyond reasonable doubt that the appellant knew she was not consenting

11. [128]

    Although on the appeal the Crown did submit the evidence was sufficient to prove the appellant was reckless as to whether the complainant was consenting, its submissions were primarily focused on meeting the appellant’s submission that this Court would be satisfied that the evidence supported the reasonable possibility that the appellant had an honest belief held on reasonable grounds, that she was consenting and that the verdict was unreasonable for that reason. It was the Crown’s submission that this Court would be satisfied that it was open to the jury, properly instructed, to reject as untrue the appellant’s evidence that he held that belief or, if it might possibly be true that he did believe she was consenting, there were no reasonable grounds for him to have held that belief.

12. [129]

    That the Crown has taken that approach on the appeal does not dictate that this Court should approach its independent review of the evidence in the same way. For my part, to do so would be contrary to the principled approach that should be adopted by this Court when there is a challenge to the integrity of a verdict under s 6(1) of the Criminal Appeal Act. Accordingly, if upon my review of the whole of the evidence at trial, I consider that it was open to the jury (who saw both the complainant and the appellant give their evidence) to be satisfied beyond reasonable doubt that the appellant had actual knowledge that the complainant was not consenting to anal intercourse, or was reckless as to that fact, it would follow that I would dismiss the first ground of appeal.

13. [130]

    Consistent with the way the jury were directed, the question whether the evidence was capable of proving the appellant had actual knowledge of the absence of consent (or either of the two alternate states of mind in s 61HA(3)(b)-(c)), obliges this Court to consider all the circumstances bearing on that question including, as required by s 61HA(3)(d), any steps taken by the appellant to ascertain whether the complainant was consenting. As to that matter, it was common ground at trial that the appellant made no enquiry of the complainant before or during intercourse as to whether she was willing to have anal intercourse (or intercourse at all), or whether she was willing for him to proceed to try to achieve penetration when, even on his evidence, she expressed pain and declared that she was “a virgin”. It was his evidence that her words and actions gave him no reason to enquire as to whether she was consenting and that her demeanour only changed after intercourse when he told her to add her name to the list of names on his phone.

14. [131]

    Since the body of surrounding circumstances relied upon by the Crown at trial to prove actual knowledge were the same as those relied upon by the Crown on the appeal to prove recklessness and an absence of any belief held on reasonable grounds that the complainant was consenting, I am content to review the sufficiency and quality of the evidence in proof of the third element of the offence on the basis of the position that was taken by the Crown on the appeal.

15. [132]

    As I have already pointed out, in the circumstances of this case, the evidence available to the jury going to that question was the same body of evidence relevant to proof of the absence of consent with the jury directed to apply different legal tests to proof of the second and third elements.

16. [133]

    I have already considered that body of evidence in detail in the course of considering whether the appellant’s challenge to the sufficiency of the evidence to prove an absence of consent. I emphasised then, as I do now, that the contested questions of veracity and reliability that presented in this trial, including whether the complainant made any material concessions in the course of cross-examination, are quintessentially jury questions.

17. [134]

    I should however refer to one additional aspect of the evidence I have not dealt with. It was the appellant’s case that when he directed the complainant to put her hands on the fence he was intending to have vaginal intercourse but that he was unsuccessful (despite his evidence that she bent over and pointed her buttocks towards him), and that in response to him remarking as to her “tightness” and her telling him she was a virgin, he directed her to take up a position on the ground and arch her back where he attempted vaginal intercourse a second time before anal intercourse was achieved. This was relied upon as part of the surrounding circumstances serving to undermine the Crown case on both the second and third elements of the offence.

18. [135]

    Under cross-examination the complainant accepted that the appellant may have tried to penetrate her vagina whilst she was leaning on the fence. She was not asked to concede by the cross-examiner that she bent over and thrust her buttocks towards him (despite this being integral to the appellant’s case) and made no concession that the conversation about her being “tight” was other than when she was, as she described it, “on the ground”. While the jury were entitled to accept the possibility that vaginal intercourse was attempted at some point, since there were no questions directed to the complainant by the cross-examiner to invite her to concede that she consented to intercourse by that means, or that she pushed back with her buttocks to facilitate it, it is not open, in my view, for the appellant to invite this Court to find as a fact that it was conduct of the complainant preparatory to the anal intercourse that followed.

19. [136]

    After undertaking the requisite independent review of all the evidence at trial bearing upon the question of proof of the third element, and paying full regard to the opportunity the jury had of seeing and hearing the complainant and the appellant give their evidence, and for each to be challenged under cross-examination as to their honesty in recounting what was said and done in Soho and in the laneway (or not said or not done as the case may be), I am satisfied that the evidence allows for the jury to have concluded that the appellant was at least reckless as to whether the complainant was consenting to anal intercourse and to have concluded that was his state of mind when he had anal intercourse with her.

20. [137]

    Accordingly, I am satisfied that the evidence was not deficient in proof of the third element of the offence and, for that reason, that it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.

21. [138]

    The first ground of appeal is dismissed.

Ground Two

1. [139]

   The trial judge’s oral directions of law were supplemented by written directions. The directions were comprehensive. They covered each of the three elements the Crown had to prove beyond reasonable doubt if the jury were to find the appellant guilty. The jury were also directed as to how they should approach the question of proof of those elements referable to the evidence relied upon by the Crown to prove each the issues at trial as to the adequacy of proof raised by the appellant beyond reasonable doubt.

2. [140]

   While the written directions and oral directions were obviously not in identical terms, they were, substantially, to the same effect.

3. [141]

   The appellant submitted that only part of her Honour’s written and oral directions as to the applicable law were in error. In every other respect, it was accepted the directions were unassailable.

4. [142]

   As regards proof of the third element of the offence, the directions correctly identified the alternate ways in which knowledge concerning consent may be proved at law as provided for in s 61HA(3)(a)-(c) of the Crimes Act. Her Honour also directed the jury that it was the Crown’s obligation to prove beyond reasonable doubt either that the appellant knew that the complainant was not consenting at the time of the anal intercourse, was reckless as to that fact, or that he had no reasonable grounds for believing that she was consenting.

5. [143]

   When the trial judge was reminding the jury of the appellant’s case on the question of his state of mind at the time of anal intercourse in her oral directions, she repeated the one aspect of the written directions said by the appellant to amount to a fundamental misdirection of law.

6. [144]

   In the written directions as concerns proof of the third element, her Honour said:

7. [145]

   There is no challenge to any part of the written directions to this point, the impugned direction is contained in the next paragraph:

8. [146]

   That part of the direction emphasised in bold was said on the appeal to be fundamentally flawed in two respects. First, it imposes an objective test of reasonableness of the appellant’s belief in consent and, second, it imposes an onus on the appellant to satisfy the jury that he believed the complainant was consenting.

9. [147]

   No redirection was sought by trial counsel. Although Rule 4 applies, at the hearing of the appeal the Crown did not oppose leave being granted. This concession was appropriate. Both the Crown and senior counsel for the appellant had approved the content of the written directions and neither counsel alerted her Honour to what is now said by the appellant to be an error when she repeated the written direction in the summing-up.

10. [148]

    The appellant referred the Court to the decision of O'Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45 as authority for what this Court has approved as the direction a jury is to be given where proof of the absence of consent is an element of the offence.

11. [149]

    In that case, it was submitted on the appellant’s behalf that the test in s 61HA(3)(c) was not a completely objective test. Rather, the subjective element (that is the claim to having an honest belief in consent) was to be tested against whether there were reasonable grounds to hold it. Davies and Garling JJ said:

12. [150]

    In the present case the appellant submitted that the impugned direction wrongly directed the jury that the third element of the offence would not be proved unless the appellant had satisfied them by his evidence that he believed in the complainant’s consent and only then if the jury were satisfied that his belief was reasonable.

13. [151]

    The Crown submitted that while the directions given by the trial judge in O’Sullivan might be more cogently worded than her Honour’s directions, when her Honour’s directions are reviewed in the context of the summing up as a whole and in the context of the written directions as a whole, this Court would not conclude that the impugned direction inverted the onus of proof.

14. [152]

    In the Crown’s submission, that is borne out by what follows immediately after the impugned direction in the written directions:

15. [153]

    In the summing up her Honour elaborated on the written directions when she said:

16. [154]

    Very shortly afterward, her Honour said:

17. [155]

    There is some force in the Crown submission that in light of her Honour’s repeated directions that the Crown bore the onus of proof of the third element the jury could not have understood the impugned direction to have suggested otherwise. I also accept that one way of interpreting her Honour’s reference in the written direction to the complainant’s actions “causing the appellant to have a belief that she was consenting” was to remind the jury that it was the appellant’s case (either in cross-examination of the complainant or his evidence) that he believed she was consenting, not that she was directing them that it was for the appellant to prove that fact.

18. [156]

    The Crown submitted (correctly) that, properly understood, s 61HA(3)(c) does impose an objective test, in the sense that (ignoring the onus of proof) the grounds which might lead to a belief of consent must be objectively reasonable. However, this is not the equivalent of the trial judge’s direction that it was for the jury to “consider whether such a belief [that the complainant was consenting] was a reasonable one”. The latter formulation implies that the jury should ask what a reasonable person might have concluded about consent, rather than what the accused himself might have believed in all the circumstances in which he found himself and then test that belief by asking whether there might have been reasonable grounds for it. In many such contestsed cases, perhaps all, there might be a reasonable possibility of the existence of reasonable grounds for believing (mistakenly) that the complainant consented and other reasonable grounds suggesting otherwise. A reasonable person might conclude one way or the other but the statutory test is whether the Crown has proved the accused “has no reasonable grounds for believing” that there was consent. I observe in passing that, in the context of self-defence, the real distinction between what a reasonable person might believe and what the accused might have reasonably believed in all the circumstances, though on the surface perhaps somewhat finer than that to which I have adverted, was the emphasis by Mason J (as his Honour then was) in Viro v R [1978] HCA 9; 141 CLR 88 at 146.

19. [157]

    Although the appellant’s counsel accepted that the main focus of senior counsel’s closing submissions to the jury was the complainant’s unreliability, it remained incumbent on the trial judge to direct the jury that it was for the Crown to negative any reasonable possibility that the appellant believed (even if wrongly) that she was consenting. It was also incumbent on the trial judge to direct the jury that, in considering whether there were reasonable grounds for that belief as the statutory test requires.

20. [158]

    Having concluded that her Honour’s directions as to how the jury were to approach their consideration of the appellant’s state of mind were in error, it is not necessary to determine the third particular of Ground 2, namely that the directions failed to detail or explain the evidentiary basis for the appellant’s claim to have reasonably believed that the complainant had consented.

Orders

1. [159]

   In the event that the first ground of appeal failed, the appellant accepted that he could not resist an order for a retrial under s 8(1) of the Criminal Appeal Act. Accordingly, I would propose the following orders: