Hayne v R

1. [1]

   MEAGHER JA: On 4 April 2023, the applicant, Mr Jarryd Hayne, was found guilty by a jury and convicted of two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The particulars of count 1 alleged cunnilingus performed on the complainant (the relevant definitional provision at the time of the alleged offending being s 61H(1)(c)) and the particulars of count 2 alleged digital vaginal penetration, also performed on the complainant (s 61H(1)(a)(i)). That conduct was alleged to have occurred at the complainant’s house at around 9:30pm on 30 September 2018.

2. [2]

   The jury trial which resulted in these convictions proceeded in the District Court between 13 March and 4 April 2023 and was the third trial faced by the applicant in relation to the charged conduct. On 12 May 2023, the applicant was sentenced to imprisonment for a term of 4 years and 9 months with a non-parole period of 3 years, to date from 7 May 2022. Taking into account the time the applicant spent in custody prior to his conviction, he is first eligible for parole on 6 May 2025. There is no appeal from that sentence.

3. [3]

   The applicant seeks leave to appeal against each of these convictions on three grounds. They are that the jury’s verdicts are unreasonable or unsupported by the evidence (ground 1), that the trial judge erred in determining that it was not “necessary in the interests of justice” for the complainant to give further evidence about her separate interactions with two persons, Ms Monique Smiles and Mr Stephen Page (ground 2), and that a miscarriage of justice was occasioned by the trial judge’s ruling refusing to grant leave to the complainant to give further evidence about her interactions with Ms Smiles (ground 3).

4. [4]

   As each of these grounds raises a question of mixed law and fact, leave to appeal is required (Criminal Appeal Act 1912 (NSW), s 5(1)(b)). The Crown contends that the grounds of appeal lack merit. In my view, each of the grounds raises a sufficiently arguable case to justify the appeal on that ground being considered on its merits. Accordingly, I would grant leave to appeal on each of grounds 1, 2 and 3. For the reasons which follow, I would dismiss the appeal on each of those grounds. Mr Hayne is hereafter referred to as the appellant.

Non-publication orders

1. [5]

   It is convenient to note at the outset that certain prohibitions apply in relation to the publication of certain matters relating to the proceedings.

2. [6]

   There is a statutory prohibition on the publication of any material that would identify the complainant, being a complainant in “prescribed sexual offence proceedings” (Crimes Act 1900 (NSW), s 578A(2)). By necessity, in this case that prohibition extends to identifying the complainant’s mother, sister and brother-in-law. It does not extend to the identities of other individuals whose communications with the complainant are in evidence (and in any event whose identities have already been published on Caselaw).

3. [7]

   Specific non-publication orders have also been made in relation to the proceedings. On 12 May 2023, the trial judge made non-publication orders pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8. Those orders remain extant and prohibit inter alia the publication of photographs of the appellant’s wife or her children taken on or after 12 May 2023.

Procedural history

1. [8]

   The appellant was first tried in the District Court in 2020. The indictment presented contained four counts: two of aggravated sexual assault, and, in the alternative, two of sexual assault. The jury was unable to reach a unanimous or majority verdict and was discharged on 7 December 2020. In that trial, the complainant gave oral evidence on 24 and 25 November 2020. An audio-visual recording was made of that evidence. The appellant gave evidence on 27 and 30 November and 1 December 2020, and an audio-only recording was made of his evidence.

2. [9]

   The second trial was held in March 2021 in relation to the same four counts as were charged by the first indictment. On 22 March 2021, the jury returned verdicts of not guilty in respect of the two counts of aggravated sexual assault, and guilty in respect of the alternative counts of sexual assault. The audio-visual recording of the complainant’s oral evidence in the first trial was admitted as the complainant’s evidence in the second trial (Criminal Procedure Act 1986 (NSW), s 306I); and the appellant’s evidence was given by the tender in the Crown case of the audio-only recording of his oral evidence in the first trial.

3. [10]

   The appellant successfully appealed from those convictions. On 14 February 2022, the Court of Criminal Appeal quashed each of those convictions on the ground that the trial judge had given erroneous directions to the jury concerning the legal test for proving that the appellant knew that the complainant was not consenting; and ordered that there be a new trial in the District Court (Hayne v R [2022] NSWCCA 11). The Court also held that the trial judge had erred in overturning a ruling in the first trial which allowed the appellant to tender “screen shots” of text messages exchanged between the complainant and Mr Page on 30 September 2018.

4. [11]

   The third trial commenced on 13 March 2023. The indictment presented in this trial only charged two counts:

5. [12]

   At the time of the charged offending, the terms of s 61I of the Crimes Act 1900 (NSW) were as follows:

6. [13]

   For the purposes of this provision, “sexual intercourse” included by the definition then provided in s 61H:

7. [14]

   In the third trial, as in the second, the complainant’s evidence was given by way of the audio-visual recording of her oral evidence at the first trial. With leave of the Court given pursuant to Criminal Procedure Act 1986 (NSW), s 306D, the complainant gave further oral evidence concerning a civil claim for damages against the appellant which she had commenced on 4 August 2021 following his convictions in the second trial. That leave was granted following a pre-trial application made by the appellant under s 306J(1) for a ruling that the complainant was “compellable” to give further evidence by way of cross-examination in relation to that matter, as well as in relation to her interactions with Ms Smiles and Mr Page. The trial judge’s rejection of that application in respect of the latter two matters, which his Honour treated as properly made under s 306D(2) rather than s 306J(1), is the subject of grounds 2 and 3.

8. [15]

   It is convenient to address those grounds first. The following factual overview provides a fairly full (but necessary) understanding of the context in which that application was made.

Factual overview

1. [16]

   The events giving rise to the charged offences occurred between 9:07pm and 9:53pm on 30 September 2018 at the complainant’s house in a suburb of Newcastle. Those were the times at which the parties agreed a taxi carrying the appellant arrived at and subsequently left that house (Ex 24). There was never any issue that cunnilingus and digital penetration had taken place at some time in that period. The Crown case in the third trial was that the complainant did not consent to that sexual intercourse, and that the appellant knew that she did not so consent because she resisted and said “no”, “no, Jarryd” and “stop” to him several times before and during the sexual activity. Each of those elements of the charged offences was contested.

2. [17]

   At the time of the alleged offending, the appellant was a well-known professional footballer who had for several years played in the National Rugby League (NRL). The complainant had never met the appellant, but she knew that he was a well-known footballer. As she had been hospitalised for 6 weeks with a blood inflection a few months prior, she had moved back in and was living with her mother in Newcastle. She was 26 years old.

3. [18]

   At 1:04am on 17 September 2018, the complainant sent the appellant an unprompted message via the Instagram mobile application (“You are absolutely gorgeous x”). Following this communication, during the next fortnight the complainant and appellant exchanged messages and photographs via the Instagram and Snapchat mobile applications, as well as text messages. These communications included express discussion of sexual matters, and were described by the complainant as being “flirty type sexual type stuff”. A striking example is the complainant’s message to the appellant dated 18 September 2018, in which she said “I’m not going to lie.. I imagined what it would be like to be fucking you when you started talking”.

4. [19]

   In his opening to the jury, the Crown Prosecutor said these messages “make plain the complainant found [the appellant] sexually attractive”. The complainant accepted in her evidence that at the time of the messages she had a sexual interest in the appellant, and was open to the possibility of having a sexual relationship with him if she thought that doing so felt “right” at the time.

5. [20]

   The appellant, who lived in Sydney, attended a friend’s buck’s party in Newcastle on Saturday 29 September 2018 and Sunday 30 September 2018. In the course of their messaging throughout this weekend, the appellant and complainant each proposed that they should meet in person. After several of these proposals did not eventuate, at 7:31pm on 30 September 2018, the appellant, who admitted to being “pretty intoxicated” at the time, called the complainant and proposed that he come to see her on his way back to Sydney. Shortly afterwards, the complainant texted her address to him.

6. [21]

   The complainant said that she wanted the appellant to visit her house so that they could meet each other, but that she “didn’t have a certain expectation of what was going to happen”. At this time, she anticipated that she may “possibly” engage in some sort of sexual activity with the appellant.

7. [22]

   The appellant said that at no stage prior to him visiting her home had the complainant consented to, or definitively indicated that she was going to consent to, having sex with him. He said of his expectations when deciding to visit the appellant:

8. [23]

   A taxi was booked to convey the appellant from Newcastle to Sydney that evening, and during this trip the taxi diverted to the complainant’s house on the pretext that he had to go there to pick up a bag. It was agreed that this taxi arrived at the complainant’s address at 9:07pm.

9. [24]

   Also on 30 September 2018, and prior to the arrival of the taxi at her house, the complainant had a series of messaging communications with Ms Smiles and, separately, with Mr Page. In her exchanges with Ms Smiles, the complainant disclosed that by 3:21pm she had already “turned down jarryd hayne” (more precisely an invitation to a place where he was with his friends) and later enquired “Should I go see Jarryd Hayne”. In this context, Ms Smiles warned that “footy guys” were “sleeze” and that she should not see the appellant because “it just would have been [for] sex”. The complainant accepted at that time that Ms Smiles was “probably” right about this.

10. [25]

    The complainant’s messages with Mr Page in the mid-morning and afternoon of 30 September 2018 followed a communication in which the complainant had indicated that she wanted him to come to her house, Mr Page had said that he did not wish to do so, and the complainant had responded that she would get the appellant to come over instead. In that context, in these messages the complainant continued to press Mr Page to “come over” or at least talk to her, and in response he taunted her about the appellant being her “side boy”. The complainant then, it would seem angrily, replied that if Mr Page was not going to keep talking to her she was “going to say yes to jarryd”.

11. [26]

    When the appellant arrived at the complainant’s house, he was met at the front door either by the complainant’s mother (on his account) or the complainant (on her and her mother’s accounts). Both the appellant and complainant then recall that the appellant went into the complainant’s bedroom, which was at the front of the house. The appellant and complainant, either sitting or lying on her bed, then engaged in some “small talk”, before, at the appellant’s suggestion, doing “sing-a-longs” to three or four songs played on the complainant's laptop.

12. [27]

    At some time during this “activity”, a car horn “beeped” and the complainant noticed a taxi waiting outside. She asked the appellant if it was waiting for him. Her evidence was that the appellant, still singing and “not really paying attention” to this, said that he could stay “as long as I want[ed]”. The appellant said in his evidence that he confirmed it was his taxi, but did not respond to her asking him why it was there; instead, he “kind of just stared at her”. He also gave evidence that at this time the complainant said something “along the lines of” “did you think you were just going to come here and have sex with me”, to which he in effect responded “it’s up to you really”.

13. [28]

    Shortly after, the taxi driver, Ms Morel, knocked on the door, which was opened by the complainant’s mother, who then knocked on the complainant’s bedroom door and said to the appellant “the taxi lady’s asking for you”. The appellant then went outside, spoke to the taxi driver, and returned to the house.

14. [29]

    From this point the accounts as to the sequence of events differ, as do the narratives about the complainant’s consent to what then occurred. On the Crown case, reflecting the account of the complainant, whilst the appellant was talking to the taxi driver, the complainant’s mother told her that the taxi driver had asked “Is Jarryd here? It’s been 20 minutes”. Upon hearing this, the complainant said that her heart had “dropped”, realising that the appellant had only visited her to have sex. She told her mother that there was “no way” she and the appellant were going to have sex.

15. [30]

    When the appellant returned, he first went to the loungeroom at the back of the house to watch the end of the NRL Grand Final. The complainant’s mother was also watching the football. He then returned to the complainant’s bedroom, and after a brief conversation walked around to where she was sitting on the bed near the pillows.

16. [31]

    The appellant lent on the bed, breaking one of the wooden slats supporting the mattress. He then tried to kiss the complainant. She said “no”, and then “no”, “no, Jarryd” and “stop” a number of times during what followed because she did not want him to touch her. The appellant pushed her face down into the pillows, again tried to kiss her, grabbed her pants and pulled them off while she held them, trying to keep them on. He then moved his head to her genitals, put his mouth on her vagina and put one or two fingers in her vagina. Thirty seconds or so later, the complainant started to bleed from her vagina, and the appellant, sensing the blood, stopped. The appellant went into the complainant’s ensuite bathroom to wash himself, and the complainant went into the shower. After a few more brief interactions, the appellant said “I better go”, and left the house.

17. [32]

    The defence case was that the cunnilingus and digital penetration were consensual. The complainant’s communications with him prior to their meeting demonstrated her obvious sexual interest in him, which manifested in her wanting him to visit her and, when this occurred, their brief but consensual sexual activity. On the appellant’s account, after he had spoken to the taxi driver at the door, he first returned to the complainant’s bedroom and tried to watch the Grand Final on his phone and the complainant’s laptop. When he was unable to do that, he walked into the loungeroom and watched the end of the game with the complainant’s mother.

18. [33]

    He then returned to the complainant’s bedroom, lay next to her, and began to kiss her. She kissed him in return, and soon they were touching each other’s genitals. They both attempted to remove the complainant’s pants, which she then did herself, and the appellant put his finger in her vagina for 20 to 30 seconds, before putting his mouth on her vagina for a similar amount of time. She was “fine” with all this occurring. Soon afterwards, the appellant noticed blood on his lip, stopped all sexual conduct, and washed himself in the bathroom sink while the complainant showered. Having reassured the complainant that he must have accidentally injured her vagina with his finger, he left the house and took the taxi to Sydney.

19. [34]

    It is not controversial that shortly after the appellant had left the house, the complainant exchanged messages separately with the appellant, Ms Haylie Hartley (her “best” close friend), and Ms Smiles. On the Crown case, the primary complaint evidence was to Ms Hartley, whom the complainant immediately informed about the assault; the complainant’s mother, whom the complainant informed about the assault a day or two later, having initially attributed the blood on the bed to the appellant having a nosebleed; Dr Susanna Smart, a general practitioner with whom the complainant spoke on 3 October 2018; and the complainant’s sister, whom the complainant informed about the assaults on 30 October 2018. The complainant exchanged messages with Ms Smiles (including on Snapchat) within half an hour of the appellant leaving the house. The complainant had earlier sent a message to Ms Hartley but did not receive an immediate response. Her exchanges with Ms Hartley commenced about 30 minutes after the exchange with Ms Smiles. The incident was first reported to the police on 5 November 2018, after the involvement of the NRL Integrity Unit.

20. [35]

    The complainant’s first contact was with her mother. On 30 September 2018, and after the appellant had left the house, the complainant told her mother that the appellant had a nosebleed and left. She said she did not want to tell her mother about the offending because she “didn’t even really know what it was for [herself]”, “didn’t know what [she] was going to do”, and because she was concerned that her mother would have a panic attack. It was only on 1 or 2 October 2018, after she had spoken to Ms Hartley and Ms Smiles, that the complainant told her mother “what had really happened that night”, saying that the appellant had been “quite forceful and persistent and that he had pulled her pants down and she thought he’d bitten her”.

21. [36]

    Her second account was to Ms Smiles shortly after the appellant had departed. As the relevant part of this exchange took place via the Snapchat application, which automatically deletes messages shortly after they are read by the recipient, there is no record of what was said. In cross-examination, the complainant’s evidence was that she did not know what she had said to Ms Smiles because she could not remember. The relevant exchange with the cross-examiner is extracted at [59]-[60] below.

22. [37]

    Ms Smiles’ evidence was that in their exchange on Snapchat, the complainant said that the appellant had “come over, paid for a taxi driver to stay out the front”, that “it was really rushed”, and that he “went down on her”. The complainant was said to have made no reference to her injury and blood, or to the sexual activity having been forced or engaged in without her consent.

23. [38]

    The third account was to the appellant. Shortly after he had departed the complainant’s house, they exchanged the following text messages (Exs 4 and 7):

24. [39]

    In her evidence in chief, the complainant was asked what she meant by “I thought you would have at least stayed?”. She answered:

25. [40]

    The complainant’s fourth account was via text messages to Ms Hartley, also late on 30 September 2018. Among the messages the complainant sent were the following (Ex 8):

26. [41]

    The fifth account was to Dr Smart during a consultation on 3 October 2018. The complainant attended this consultation with Ms Hartley. Dr Smart’s note, made on 3 October 2018, included the following (Ex 11):

27. [42]

    Dr Smart gave evidence in the second trial on 10 March 2021, and her evidence was read onto the record before the jury in the third.

28. [43]

    That evidence included that on 2 November 2018 she had a further consultation with the complainant in which she was told that the complainant’s brother-in-law had contacted the NRL. Dr Smart perceived the situation was “getting serious” and so “went through” her earlier note with the complainant to “make sure everything in it was correct”. Dr Smart accepted in cross-examination that the complainant’s hand-written corrections to this earlier consultation note were not made in her presence. The complainant made two handwritten annotations on a copy of the note which was signed and dated by her on 7 November 2018: first, she confirmed that she and the appellant went to her bedroom, but that she did not take him “upstairs” (the house not having a second storey); and, secondly, she added after the words “said no to sex” the words “and oral sex” (Ex 11).

29. [44]

    The sixth account was to the complainant’s sister on 30 October 2018. This communication via a “FaceTime” video call was followed by a Facebook message exchange (the latter being Ex 17). The complainant’s sister gave evidence that:

30. [45]

    In a subsequent message exchange at 9:49am on 30 October 2018, the complainant’s sister told the complainant that what had occurred was “rape”, to which the complainant replied “No it’s not” (Ex 17). The complainant’s sister told her husband about what the complainant had said to her, and the husband contacted the NRL Integrity Unit.

31. [46]

    At some stage after the alleged assaults and before her telephone was provided to the police in November 2018, the complainant deleted some of the messages she had sent to or received from the appellant. The jury in the third trial was told as much in the Crown Prosecutor’s closing address. It was also accepted that by this time her exchanges with Ms Smiles on 30 September 2018, both before and after the incident, were not on the complainant’s phone. That phone also did not have the complainant’s messages to and from Ms Smiles on 20, 21 and 22 November 2018, in which the complainant enquired whether Ms Smiles had a record of their conversation on 30 September 2018 when the complainant had told her “what happened”. Ms Smiles responded that she did not because that conversation took place via Snapchat. Later in that exchange, the complainant also said to Ms Smiles that she did not need to give Ms Smiles’ name to the police. It is not suggested that the complainant had deleted her exchanges with Mr Page from her phone.

32. [47]

    As at 30 October 2018, the complainant had not made any complaint to the police. Dr Smart’s note of her consultation on 3 October 2018 includes: “discussed assault. chooses not to go to police- discussed at length”. This position ultimately changed, but not at the complainant’s instigation. When the complainant told her sister about the assaults on 30 October 2018, her sister in turn told her own husband. The husband, understanding that the complainant did not wish to make a complaint to the police, contacted a sports journalist. The journalist gave him the phone number of the NRL Integrity Unit. The complainant and her brother-in-law then met with a representative from the NRL Integrity Unit, Karyn Murphy, who said that they should contact the police. With the complainant’s approval, Ms Murphy contacted Detective Sergeant Stek on 5 November 2018.

33. [48]

    On 7 November 2018, the police produced a walk-through video of the complainant’s home. At some time after, they took possession of the complainant’s phone, which was subjected to a “Cellebrite” investigation in March 2019. That investigation revealed that text messages between the complainant and the appellant on 29 and 30 September 2018 had been deleted. However, the police did not in November 2018 or before November 2020 (the time of the first trial) become aware that the complainant had exchanged messages with Ms Smiles on 30 September 2018, both before and after the incident, as well as with Mr Page.

34. [49]

    In the course of the third trial, Ex 23 was produced. That exhibit was a chronological list of “relevant” messages, including text messages, that the complainant sent or received. Detective Sergeant Stek agreed that the messages highlighted in yellow “were not given” to the police in November 2018 when they were given possession of the complainant’s phone. Those highlighted included the 22 or so text messages between the complainant and the appellant which had been deleted and recovered in the Cellebrite examination in March 2019. However, the messages to Mr Page in Ex 23 were not recovered during the Cellebrite examination and are not highlighted in yellow in Ex 23. With respect to that examination, Detective Sergeant Stek’s evidence was:

35. [50]

    The evidence does not explain why there was no record of the messages exchanged with Ms Smiles and Mr Page on the complainant’s phone. The appellant’s case was that the message exchanges with the appellant and with Ms Smiles were deleted from the complainant’s phone at some time before late November 2018.

36. [51]

    Thus, the fact that the message exchanges with Ms Smiles and Mr Page were not communicated to police in November 2018 was established. The evidence in the third trial was that the police did not become aware of these exchanges until about the time of the first trial in November 2020, when they were brought to their attention by lawyers acting for the appellant. That evidence was given by Detective Sergeant Stek. Copies of the messages exchanged with Ms Smiles on 30 September 2018 and before 10:18pm were provided to the Crown before the commencement of the complainant’s cross-examination on 25 November 2020. The remaining exchanges with Ms Smiles, including those on 20, 21 and 22 November 2018, were not produced until shown to the complainant in cross-examination during the first trial.

37. [52]

    There were also communications between the complainant and Ms Smiles, and between the complainant and Mr Page’s flatmate, on 29 November 2021, the day of the hearing of the appeal to this Court following the second trial (see [87]-[88] below). No evidence of the contents or the effect of those communications was tendered in the third trial.

38. [53]

    However, the complainant’s interactions with Ms Smiles in September and November 2018 and on 29 November 2021, and her interactions with Mr Page’s flatmate and the police on 29 November 2021, are the subject of ground 2. In relation to Ms Smiles, the appellant’s argument focused on the alleged concealment by the complainant from the police of the September 2018 interactions.

39. [54]

    The complainant identified her message exchanges with the appellant, which became exhibits in the third trial. They included Instagram messages exchanged prior to 29 September 2018 (Ex 3), text messages exchanged on 29 and on 30 September 2018 before 10:39pm (Ex 4), text messages exchanged at or after 10:39pm on 30 September 2018 (Ex 7), as well as screen shots of Snapchat message exchanges on 14 and 15 November 2018 (Ex 13). When asked in chief (on 24 November 2020) whether, apart from a conversation with her mother and the messages she had sent to the appellant, she had communicated with anyone else on the night of, but after, the incident, the complainant identified only her “best friend”, Ms Hartley. Later in her evidence in chief (on the morning of 25 November 2020), the complainant made reference to another friend, a Mr Sam McCarthy, but said that there was no one else she had contacted on that evening about “what had happened”.

40. [55]

    When asked in cross-examination by Mr Boulten SC (later on 25 November 2020) whether on 30 September 2018 she had discussed with “anybody” the possibility of having sex with the appellant, the complainant said that she had “spoke[n] to a girl about him coming over”, and added “[t]here’s messages, I think”. This was no doubt a reference to her Instagram exchanges with Ms Smiles before 10:18pm, copies of which by this time had been provided to the Crown by the appellant’s lawyers. The complainant was then shown her text exchanges with the appellant on 29 and early on 30 September 2018 (Ex 4), and agreed that she had not seen these messages for some time because she deleted messages “all the time”. The complainant said she did not remember when she had deleted these messages with the appellant, describing them as “very embarrassing”.

41. [56]

    The complainant was then asked whether she had discussed with anybody the idea of inviting the appellant to her home. She answered “Yep… Mum and another girl, Monique”. When asked if she had also told Mr Page, she said she did not think so, but could not remember. The complainant was then shown screen shots of Instagram messages with Ms Smiles, including those exchanged on 30 September 2018 (which became Ex 15 in the third trial). Those screen shots were not taken from the complainant’s phone, and record Instagram messages exchanged between 3:21pm on 30 September 2018 and 10:31pm on 22 November 2018. Mr Boulten first took the complainant through the messages exchanged before the incident, in which Ms Smiles had said that the complainant should not invite the appellant over. At this point in the cross-examination, the complainant became irritated and somewhat hostile to the cross-examiner, asserting that the exchanges with Ms Smiles were “irrelevant” and maintaining that the cross-examiner was “just trying to make me sound stupid”. After a short break, the questioning continued. The complainant agreed that, notwithstanding Ms Smiles’ suggestion that if she were to link up with the appellant “it’d be likely to be for sex”, she did so.

42. [57]

    The cross-examiner did not at this point take the complainant to the exchanges after the incident. Instead, she was shown screen shots of text exchanges with Mr Page (which were taken from Mr Page’s phone and became Ex 16 in the third trial). She agreed that she had said to Mr Page that the appellant “might well” come to her house. Those exchanges occurred in the context described at [25] above.

43. [58]

    The cross-examiner returned to the Instagram messages with Ms Smiles, dealing first with the three short messages exchanged after the incident at 10:18pm on 30 September 2018. They were:

44. [59]

    The complainant accepted that on the face of these exchanges (which did not include anything as to what was said in their Snapchat exchange that immediately followed) she had said something to Ms Smiles about the incident. The cross-examiner then suggested, there being no documentary record of that Snapchat exchange, that she had told Ms Smiles that the appellant “went down on” her, but had not told Ms Smiles that she had been forced to participate in any sexual activity against her will. Initially, the following propositions were put and qualified answers given:

45. [60]

    Eventually, the complainant’s position was made clear:

46. [61]

    At this point, the complainant again became upset and hostile towards the cross-examiner, suggesting that he was “making [things] up” and “making me out to be a liar”.

47. [62]

    The complainant was then shown the Instagram messages exchanged with Ms Smiles between 20 and 22 November 2018 (which are summarised at [46] above and extracted at [86] below). In this context, the cross-examiner pointed out that in her evidence in chief (given earlier on the same day, 25 November 2020; see [54] above) the complainant had not mentioned Ms Smiles as a person whom she had contacted on the evening of the incident. The complainant responded that in answering that earlier question (directed to contact after the incident) she had “forgotten” about those exchanges with Ms Smiles because she had only seen the “first part” of her exchanges with Ms Smiles (ie those before 10:18pm on 30 September 2018) “yesterday” and that had “now brought back” the fact of her exchanges with Ms Smiles after that time.

48. [63]

    There is an explanation for the complainant’s reference to having seen the “first part” of those messages in the following exchange between the Crown Prosecutor and the Court at the time Ex 19 (which became Ex 15 in the third trial) was tendered in the first trial:

49. [64]

    After responding that seeing the “first part” of those exchanges with Ms Smiles had “now brought back” to her the fact that she had spoken to Ms Smiles after the incident, the complainant said “I have something to say. Can I say it?”. The Court (being the judge in the first trial) responded, ruling that she could not volunteer that information. The cross-examiner moved on to another topic, and in re-examination successfully objected to the Crown eliciting whatever the complainant had sought to volunteer.

50. [65]

    In re-examination, the complainant said that as at September 2018 she had never met Ms Smiles in person, did not know her “well at all”, and that she only knew her from following her on Instagram.

Grounds 2 and 3

1. [66]

   These grounds are:

2. [67]

   The third trial was a retrial ordered following the appellant’s successful appeal from his convictions in the second. On the face of it, it followed from s 306B of the Criminal Procedure Act 1986 (NSW) that the Crown was entitled to tender as evidence in the third trial a record of the “original evidence” of the complainant (s 306B(1) in Div 3 of Pt 5 of Ch 6). Such evidence was defined as “all evidence given by the complainant… in the proceedings from which the conviction arose” (s 306B(2)), which here would be the second trial. The evidence of the complainant admitted in the second trial was an audio-visual record of the complainant’s evidence in the first trial. Provided that evidence answered the description “evidence given by the complainant” in the second trial, it was admissible upon its tender by the Crown (s 306B(1), (5)); and the complainant could not be required to give any further evidence unless she elected to do so and the Court gave leave for that to occur (ss 306C, 306D).

3. [68]

   The appellant sought leave in the third trial for the complainant to give further oral evidence by way of cross-examination on particular matters. That application was expressed to be made under s 306J. The appellant contended that Div 4, rather than Div 3, of Pt 5 of Ch 6 applied because, in circumstances where the first trial had been “discontinued” for the purpose of s 306I(1), the third trial was a “new trial” in which the Crown had tendered the original evidence given by the complainant in that discontinued trial.

4. [69]

   The trial judge correctly rejected this argument, concluding that the third trial was a “new trial” ordered following the appellant’s successful appeal against his conviction in the second (s 306B(1)). That being the position, the “original evidence” of the complainant able to be tendered in the third trial was the evidence “given” by her in the second trial, and that description was satisfied by her audio-visual evidence admitted in the second trial under s 306I(1) (the second trial, rather than the third, being a “new trial” listed following the first being discontinued). The definition of “original evidence” in s 306B(2) as “all evidence given by the complainant” in that proceeding contains no qualification as to how that evidence was given, and accordingly included evidence given by the tender of an audio-visual recording.

5. [70]

   In the result, the trial judge dealt with the appellant’s application as if made under s 306D(2) and (3). Section 306D relevantly provides:

6. [71]

   Because the complainant made clear that she would give evidence in accordance with s 306D if the Court gave leave for her to do so on the appellant’s application, the question whether the audio-visual record of her evidence was admitted in the third trial under Div 3, rather than under Div 4, was of no moment. Had the complainant not been willing to give such evidence, under Div 3 she could not have been compelled to do so (see s 306C), whereas under Div 4 she would have been compellable to give further evidence if the Court were satisfied in accordance with s 306J.

7. [72]

   Accordingly, the issue for the trial judge was whether under s 306D(2) the complainant should have leave to give further evidence. As formulated in the appellant’s written submissions, the application was for leave to re-call the complainant to permit her to be further cross-examined about the following matters, which the appellant intended to put to the jury in closing address:

8. [73]

   The trial judge granted leave with respect to the subject matter in (c), namely the complainant’s civil claim for damages for assault brought against the appellant.

9. [74]

   The application for leave in relation to the complainant’s interactions with Ms Smiles was rejected, the trial judge not being satisfied that it was necessary to re-call the complainant either in the interests of justice or in order properly to canvas the exchanges between the complainant and Ms Smiles. The interactions referred to in the appellant’s written submissions in support of the application were those on 30 September 2018 (before and after the incident) and 29 November 2021 (the hearing day of the appeal to this Court from the outcome of the second trial).

10. [75]

    With respect to the interactions with Mr Page, the parties agreed that screen shots of the text messages exchanged on 30 September 2018 could be admitted into evidence. Having reached this agreement, the appellant did not press the application to cross-examine the complainant with respect to those documents.

11. [76]

    Thus, in relation to Mr Page, the trial judge was only called upon to rule on the application to cross-examine the complainant about statements made by the complainant to Mr Page’s flatmate and to the police on 29 November 2021. In relation to that material, in his second judgment delivered on 8 March 2023, the trial judge concluded that it was “not necessary to canvas, clarify or in the interests of justice to ask [the complainant] what was on her mind, or what she was doing on that day, and what she meant by that statement of fact as to the outcome of the appeal”.

12. [77]

    Accordingly, ground 2 challenges the trial judge’s decision to refuse leave to further cross-examine with respect to two matters — the complainant’s interactions with Ms Smiles on 30 September 2018 and 29 November 2021, and her interactions with Mr Page’s flatmate and the police on 29 November 2021.

13. [78]

    Whereas Div 4 of Pt 5 is directed to a new trial for a prescribed sexual offence where the jury has been discharged, or the trial discontinued for any other reason, Div 3 is directed to a new trial following a successful appeal against conviction. In a case to which Div 4 applies, the complainant may not have given all of their evidence, or the jury may have been unable to reach a verdict. In such a case, the evidence in the original proceeding may not have been complete when the proceeding terminated. For that reason, Div 4 includes provisions directed to ensuring that the accused is not being unfairly disadvantaged by the admission of incomplete evidence given in an earlier trial. See the Second Reading Speech for the Bill introducing Div 4 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 October 2006 at 2961-2962).

14. [79]

    Under Div 3, once a record of the original evidence is admitted, the complainant is “not compellable” to give any further evidence (s 306C). As was explained in the Second Reading Speech for the Bill introducing that Division (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 March 2005 at 14651):

15. [80]

    In determining whether the giving of further evidence is “necessary”, “in the interests of justice” or otherwise, it is not contended that the trial judge erred in approaching that question consistently with the observations made by Beech-Jones J in WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 at [40], [41] and [42]. That is, the word “necessary” is a “strong word” and “requires more than the formation of an opinion that something is ‘convenient, reasonable or sensible’” ([40]). Moreover, the phrase “interests of justice” is a “protean one taking its meaning from its context” ([41]), which, in a case like the present, “clearly embraces (and requires) a consideration of the impact on the fairness of the accused’s forthcoming trial if the complainant does not give further evidence and the desirability of not occasioning further trauma to the complainant if they do” ([42]).

16. [81]

    The unchallenged police evidence, although not expert evidence, was that the complainant had suffered issues relating to her mental health as a result of the criminal proceedings, and that it was likely she would continue to do so if subjected to significant further cross-examination. Nevertheless, the complainant had agreed to give further evidence if required. Ultimately, it was not necessary for the trial judge to weigh these considerations against the prospect of an unfair trial because his Honour concluded that there was no such prospect.

17. [82]

    It is convenient at this point to set out the relevant interactions, including those in November 2018.

18. [83]

    The complainant exchanged Instagram messages with Ms Smiles on the afternoon of 30 September 2018 between 3:21pm and 5:44pm. Those exchanges included (Ex 15):

19. [84]

    They also exchanged the following Instagram messages at 10:18pm, after the appellant had left the complainant’s house:

20. [85]

    The complainant and Ms Smiles then communicated via Snapchat. Ms Smiles’ oral evidence given in the third trial was that there was no reference made by the complainant in this communication to her suffering from any injury or anything happening “against her will”. The effect of that evidence was stated in Ex 23 (as to which see [49] above) as follows:

21. [86]

    There were further exchanges with Ms Smiles on 20, 21 and 22 November 2018, the appellant having been arrested and charged on 19 November. None of these exchanges was in the appellant’s written and oral submissions to the trial judge expressed to be the subject of his application under s 306D(2):

22. [87]

    The final exchange with Ms Smiles occurred on 29 November 2021, apparently prompted by the complainant’s having listened to the argument in this Court in the appellant’s first appeal. The complainant contacted Ms Smiles by Facebook, sending the following messages:

23. [88]

    The interactions between the complainant and, indirectly, Mr Page were recorded in a NSW Police Force COPS event. That document recorded that on 29 November 2021 the complainant banged on the front door of an apartment unit which Mr Page occupied with a flatmate. When told that Mr Page was not home, the complainant said to the flatmate “Tell Steve he just fucked me with the appeal”. The police later attended the apartment, and the complainant said to the officers “if those messages get out I’m fucked and he will get off”.

24. [89]

    There is no issue between the parties that the question whether there was an error of the type alleged by ground 2 is to be determined by reference to the correctness standard. The language of s 306D(2), like the language in s 97(1) of the Evidence Act 1995 (NSW), requires an evaluative judgment as to “which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ”. See R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [61] and the decision of Beech-Jones J in WX v R at [39], [73].

25. [90]

    There is a fundamental issue between the Crown and the appellant as to the matters which the appellant sought to put to the complainant in cross-examination with respect to the messages exchanged between them in September 2018.

26. [91]

    The Crown submits that the appellant sought to re-call the complainant only to raise for her response the proposition that she “did not tell the police or the prosecutor about [those messages] because she thought those interactions impugned the believability of her account”.

27. [92]

    This submission of the Crown is supported by the oral and written arguments of the appellant made to the trial judge. Those arguments proceeded in circumstances where it was accepted (1) that Ms Smiles had communicated with the complainant on 30 September 2018 concerning the appellant, both before and after the charged incident; (2) that those communications were not available on the complainant’s telephone by November 2018, when she gave that phone to the police; and (3) that the complainant had not otherwise told the police about those exchanges.

28. [93]

    Returning to the appellant’s argument before the trial judge, the following exchanges occurred:

29. [94]

    The appellant’s earlier written submissions were to the same effect:

30. [95]

    Thus, it was said that, as a matter of fairness to the complainant, she should be given the opportunity to respond to the proposition that she had deliberately concealed her exchanges with Ms Smiles because she believed they did not support her version of events.

31. [96]

    The same reason for the re-call of the complainant in relation to this subject is found in the draft direction sought by the appellant in the event that the application to further cross-examine was refused. In that event the proposed direction to the jury included:

32. [97]

    In this Court, Mr Game SC, senior counsel for the appellant in the present appeal, maintained that in fact “the gist of what was sought to be put” to the complainant concerning Ms Smiles (and Mr Page) was much more detailed and to the following effect:

33. [98]

    That submission is not supported by reference to the argument made to the trial judge by senior counsel then appearing for the appellant.

34. [99]

    Furthermore, in response to the appellant’s argument as extracted above, the Crown disavowed any reliance upon the rule of practice in Browne v Dunn (1893) 6 R 67 at 70-71 as precluding counsel for the accused from making a submission to the jury to the effect of the proposition sought to be put to the complainant.

35. [100]

    In Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [28], Kiefel CJ, Keane and Gleeson JJ described that rule as it might apply in criminal trials:

36. [101]

    However, as their Honours then observed at [29], citing R v Birks (1990) 19 NSWLR 677 at 688 (Gleeson CJ) and the joint judgment of Gummow, Kirby and Callinan JJ in MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [41], there remain difficulties concerning the operation of that rule in criminal trials:

37. [102]

    The question of fairness to which the rule is principally directed is fairness to the witness whose evidence may later be said to be contradicted by or inconsistent with a matter with which the witness was not confronted. However, in a criminal trial adherence to this rule by the accused’s counsel in respect of a Crown witness may not be in the accused’s interest. Where there is no burden, the accused and his or her interest may be best served by leaving the Crown evidence “severely alone” in the hope that it does not reach the standard of reasonable certainty or proof beyond reasonable doubt. See McPherson v Copeland (1961) SC (J) 74 at 78 per Lord Thomson, the Lord Justice-Clerk, cited by Gleeson CJ in R v Birks at 688-689.

38. [103]

    That the complainant had not told the police or the prosecutors about her interactions with Ms Smiles on 30 September 2018, and especially their short exchange after the event, was established by the evidence. The question for the jury was whether her not doing so raised questions as to the reliability and credibility of her version of events. Her exchanges with Ms Smiles in November 2018 suggested that, when first “asked who knew” by the police, she had forgotten that she had spoken to Ms Smiles. Those exchanges also suggested that by late November 2018 the complainant did remember having spoken to Ms Smiles, and believed that she had “told [her] what happened”. When then told by Ms Smiles that there was no record of what was said because it was sent via Snapchat, the complainant had advised Ms Smiles that she did not “have to give police your name”.

39. [104]

    When confronted in cross-examination in the first trial with the position being that she had not told Ms Smiles about her injury, the bleeding or that she had been pressured and did not consent to the sex which occurred, the complainant responded as set out in [59]-[60] above.

40. [105]

    As the trial judge observed in his reasons delivered on 8 March 2023:

41. [106]

    His Honour did not err in so concluding. There was no unfairness to the appellant in the trial judge not granting leave for the complainant to give evidence responding to the broad proposition that she had concealed evidence of these interactions with Ms Smiles from the police because she believed they did not support her version of events. It was not necessary for that proposition to be put before the concealment argument could be made, raising a question as to the credibility and reliability of the complainant’s evidence as to the commission of the offences charged.

42. [107]

    More significantly, from the appellant’s perspective, it was not argued (by reference to the evidence to be led in the third trial or otherwise) that there was a realistic possibility that, in response to the general proposition or propositions to be put, the complainant might give an answer or explanation that, in the trial judge’s language, would “add any discernible weight to the forensic position of the accused”. That much was conceded in the exchanges between the trial judge and defence counsel towards the end of the extract at [93] above, and was apparent from the messages the complainant had sent and her oral evidence. The November 2018 exchanges with Ms Smiles (which were not the subject of the application) and the complainant’s evidence in cross-examination suggested that the complainant did not recall the fact or content of her Snapchat conversation with Ms Smiles when she first spoke to the police, which occurred in a context where she had no record of that conversation. What that evidence also suggested was that the complainant was not aware at the time of that cross-examination of Ms Smiles’ version of what she had been told after 10:18pm on 30 September 2018. It followed, as the trial judge found, that the absence of the complainant’s further evidence in relation to these messages could not “create any real unfairness” for the appellant, and that the trial judge did not err in refusing to grant leave.

43. [108]

    These messages are extracted at [87] above.

44. [109]

    The appellant contended that these messages, which were sent on the day of the hearing of the first appeal, were relevant to an assessment of the credibility of the complainant because they demonstrated her as having contacted a witness (Ms Smiles) in an “hostile manner” and “potentially with a view to influencing [her] account”. It was also said that the messages confirmed that the complainant believed that Ms Smiles’ evidence “did not lend support to her account” of the relevant events.

45. [110]

    The trial judge found that permitting the appellant’s counsel to cross-examine the complainant on these messages would not add to or improve the forensic position of the appellant. His Honour was right to do so. As the trial judge stated, the submission suggesting that the messages were “potentially” sent with a “view to influencing Ms Smiles’ account” was “tenuous”. On the day of the hearing of the first appeal, even if there was a view that the appeal might succeed, it was not known whether there would be any retrial or whether Ms Smiles would give further evidence in any new trial. More significantly, there was nothing in the messages which challenged any part of Ms Smiles’ account; and the Crown was not otherwise proposing to tender these messages as evidence in the third trial.

46. [111]

    Accordingly, the trial judge did not err in not being satisfied that it was necessary for the appellant to be allowed to cross-examine on these messages, either in the interests of justice, or in order to canvas material which would not otherwise have been in evidence.

47. [112]

    The statements to Mr Page’s flatmate and to the police are extracted in [88] above. The trial judge reasonably construed the complainant’s statements as directed in some way to a connection between Mr Page and what she perceived to be an adverse outcome of the first appeal. Whilst neither statement was likely to reflect something reported to the complainant late on the morning on which that appeal was argued, each could possibly be the result of something earlier said to the complainant as to the perceived prospects of the appeal in relation to the ground asserting that there was error in the admission of Mr Page’s messages into evidence (as to which see [2022] NSWCCA 11 at [56]-[87]).

48. [113]

    However, the trial judge did not err in concluding that cross-examination on those statements could not affect the existence of any fact in issue in the third trial.

49. [114]

    The appellant makes two submissions. First, it is said that the complainant’s “hostile and aggressive” interactions with Mr Page after the hearing of the appeal support an inference that the complainant (three years earlier) was “actively trying to avoid the police becoming aware” of Mr Page. Why that follows is not readily apparent having regard to the nature of the statements, the fact that the evidence did not establish that Mr Page’s exchanges were deleted (see Ex 23), and the fact that it had been agreed that they were not to be the subject of any cross-examination. Secondly, it was submitted that the complainant visited Mr Page’s home unit “potentially with the intention of influencing him in respect of his evidence”. The relevant aspect of his evidence is also not readily apparent or explained. Mr Page was not a witness in either of the first or second trials, and it was not proposed by the Crown that he be a witness in the third.

50. [115]

    The trial judge was correct to conclude that it was not necessary either in the interest of justice or otherwise to canvas the November 2021 material relating to Mr Page that the appellant cross-examine the complainant.

51. [116]

    The appellant’s submission, as recorded in the trial judge’s first judgment on 8 March 2023, includes that “all three areas of proposed further examination must be seen as a whole”. In his second judgment, the trial judge did not return to this aspect of the appellant’s argument. By that time, the application in respect of the interactions with Ms Smiles had been rejected, and the application in relation to the civil claim had been allowed. The application which remained in relation to Mr Page was limited to the interactions in November 2021 with his flatmate and police.

52. [117]

    Although the application for leave under s 306D(2) was made in respect of three matters, I accept that it remained for the trial judge to assess the question of leave separately in respect of each of them. Whilst each was relied upon as part of an overall attack on the complainant’s credibility, it nevertheless required consideration of their separate subject matters — the interactions with Ms Smiles in September 2018, and the quite different interactions with Ms Smiles, Mr Page’s flatmate and the police, in November 2021.

53. [118]

    Finally, there is nothing in the foregoing analysis which supports a different conclusion under s 306D(2) in relation to the three matters if considered together.

54. [119]

    Ground 2 should be dismissed in relation to each conviction.

55. [120]

    This ground relies on the third limb of Criminal Appeal Act, s 6(1), namely that there was a “miscarriage of justice” which resulted from the trial judge’s refusal to permit the appellant to cross-examine the complainant about her exchanges with Ms Smiles, and, at the same time, his Honour’s giving a direction to the jury on “lies”. That direction is said to have “precluded” the jury from considering the appellant’s case that the complainant had concealed evidence of her interactions with Ms Smiles because those interactions did not support her version of events.

56. [121]

    In Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 at [165]-[166], this Court said of the third limb of s 6(1):

57. [122]

    The appellant contends that even if the trial judge did not err in rejecting his application under s 306D(2) in relation to the giving of further evidence about the complainant’s interactions with Ms Smiles, his direction as to “lies” precluded the jury from considering the defence’s “concealment case”, resulting in a miscarriage of justice.

58. [123]

    The Crown’s submissions in response included:

59. [124]

    In order to evaluate these contentions, it is necessary first to consider the opening and closing addresses of the Crown and senior counsel for the appellant, and, in that context, the trial judge’s later directions, to which there was no objection by defence counsel.

60. [125]

    The Crown Prosecutor early in his opening made clear that the issues in the trial were as to whether the complainant consented to the charged sexual activity, and whether the appellant knew that she was not consenting. In that context, there were “two divergent accounts” having the consequence that for the jury “to find the accused guilty you have to be satisfied beyond reasonable doubt of what the complainant says and you have to have rejected the accused’s version as a reasonable possibility”.

61. [126]

    Senior counsel for the appellant emphasised in her opening the fundamental significance of the issue as to the complainant’s credibility and honesty:

62. [127]

    The Crown Prosecutor referred to this statement at the commencement of his closing address. He then addressed the relevant circumstances in which the appellant came to be at the complainant’s home on the evening of 30 September 2018, including the messages exchanged with Ms Smiles, and the absence of any complaint to Ms Smiles about the appellant pressuring or forcing her to have sex.

63. [128]

    The Crown Prosecutor also observed:

64. [129]

    Having taken the jury to details of the complainant’s evidence with respect to the critical events, the Crown then turned to Ex 23, which contained the chronology of the various messages exchanged between the complainant and the appellant, Mr Page, Ms Smiles, and Ms Hartley, both before and after the charged conduct. Having introduced that subject, the Crown said:

65. [130]

    The Crown then noted that the complainant acknowledged having deleted some messages, and took the jury to some of the deleted messages which were said to “actually assist the complainant”. There was then reference to the complaint to Ms Hartley and the later complaint to Dr Smart. The jury was then taken to aspects of the appellant’s text messages and exchanges with the complainant and to the appellant’s evidence, the Crown concluding:

66. [131]

    In the course of her closing address, senior counsel for the appellant made a number of submissions falling within the broad proposition which was the subject of the application under s 306D(2). Each was directed to the jury’s evaluation of the complainant’s credibility and reliability. They included:

67. [132]

    The specific submission made by the appellant’s senior counsel as to the complainant being a liar or having lied was made shortly before the end of closing argument:

68. [133]

    There was then reference to the exchange with Ms Smiles after the incident, and to the exchanges with Ms Hartley in which the complainant described what she alleged had happened. Counsel continued:

69. [134]

    It was not put to the complainant during cross-examination in the first trial that she had “lied” in her evidence in chief on two occasions. The relevant cross-examination is summarised at [55]ff above. Under cross-examination by Mr Boulten SC, and after she had been shown the exchanges with Ms Smiles on 30 September 2018, both before and after the incident, the complainant asserted that in answering the earlier questions in chief, she had “forgotten” about Ms Smiles as a person she spoke to after the incident.

70. [135]

    The trial judge’s direction in relation to “lies” was given at the start of the afternoon on the first day of his summing up. Immediately after the luncheon adjournment, and in the absence of the jury, the trial judge had identified as one area of concern “the use of the word ‘lies’”, which his Honour proposed to “make… clear” to ensure that the jury would be “fair in addressing that”. The direction given included the following:

71. [136]

    At the conclusion of his summing up, the trial judge enquired whether either party sought to raise “any aspect of the directions”. Senior counsel for the appellant responded “No.”. In the absence of the jury, there was a further exchange concerning a perceived “imbalance” in the summing up, in which senior counsel for the appellant said:

72. [137]

    Significantly for this ground of appeal, there was no suggestion that what had been said to the jury in the “submission about lies” had the possible consequence that the jury would regard themselves as prevented from considering, as they were invited to do by the appellant’s counsel, whether there was a real question or doubt as to the credibility of the complainant’s evidence arising out of the various matters addressed by counsel (including those at [131] above).

73. [138]

    The need for the jury to evaluate the credibility of the complainant’s evidence was at the forefront of the defence opening address and the Crown’s closing argument. A substantial matter to be considered was whether the complainant, as counsel suggested, had deliberately concealed from the police her communication with Ms Smiles immediately after the incident because it was not consistent with her version of events as told to a number of people, and eventually the police. The Crown anticipated this matter would be raised for the jury’s consideration, and it was.

74. [139]

    The “lies” direction, as acknowledged by the appellant’s senior counsel before the trial judge, conveyed to the jury that they must scrutinise any submission which asserted that the complainant had lied. The appellant’s submission extracted at [132] above was one such submission, which was then relied upon in support of the much more general submission as to the concealing of information from the police. Where it was necessary, in considering the more general submission, for the jury to assess whether the complainant may have lied in her evidence to the Court, they were directed to do so where the allegation was fairly put and fairly arises.

75. [140]

    From the jury’s perspective, the appellant’s counsel put repeated submissions that the complainant had deliberately concealed Ms Smiles’ existence and messages from the police. Unlike the submission regarding the complainant’s evidence as to the persons she had contacted immediately after the incident (see [54]-[55] above), these submissions did not identify or describe statements of the complainant which were said to be lies. The argument was made much more generally, ascribing conduct and a motive to the complainant. As such, it required the jury to consider the evidence as to the underlying events with which the argument was concerned, as well as evidence of the complainant’s knowledge and state of mind with respect to those events at any relevant time. None of this attracted the “lies” direction, which in relation to the complainant focused on something said by her which was alleged to have been knowingly untrue.

76. [141]

    For these reasons, the trial judge’s direction as to “lies” did not occasion a miscarriage of justice. The direction in its terms did not prevent the jury from considering the defence arguments as to the concealing of information from the police regarding the existence of and exchanges with Ms Smiles or the deletion of messages.

77. [142]

    Ground 3 must be rejected.

Ground 1

1. [143]

   This ground is:

2. [144]

   The question for this Court is that formulated in M v The Queen (1994) 181 CLR 487 at 493-495 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63:

3. [145]

   This formulation has been repeatedly affirmed by the High Court in subsequent cases: as to more recent cases, see Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8]-[10]; Lang v The Queen [2023] HCA 29 at [142], [250].

4. [146]

   In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], Hayne J described the role of a court of criminal appeal, paying due deference to the jury, as being to assess the totality of the evidence in order to determine whether that jury acting reasonably “must, as distinct from might, have entertained a doubt about the appellant’s guilt”. See also M v The Queen at 503-505 per Brennan J, 525 per McHugh J; Chidiac v The Queen (1991) 171 CLR 432 at 443 per Mason CJ; [1991] HCA 4; and the unanimous judgment in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [44]-[45].

5. [147]

   In a case such as the present, where the prosecution case is dependent upon the acceptance by the jury of the truthfulness and reliability of the complainant’s evidence, a court of criminal appeal in determining an unsafe verdict ground proceeds, as described in Pell at [39]:

6. [148]

   The Crown case in the third trial was that the acts of digital and oral intercourse were non-consensual and took place in circumstances where the accused knew that the complainant was not consenting. In that respect, this trial differed from the two previous trials, where the Crown case as left to the jury relied on reckless indifference or an absence of reasonable grounds as alternative bases to prove knowledge (cf Crimes Act, s 61HA(3), as that provision was at the time of the incident).

7. [149]

   The appellant contends that there are four particular matters, considered alone or together, which would lead this Court to conclude that the jury acting rationally ought to have entertained a reasonable doubt as to the appellant’s guilt. Adopting the language in M v The Queen at 494, the appellant says that the complainant’s evidence lacked credibility for reasons which are not explained by the manner in which it was given, such that a reasonable doubt experienced by this Court is one that a reasonable jury ought to have experienced. Those four matters are:

   1. (1)

      that the complainant was “emotionally changeable”;

   2. (2)

      that the complainant’s version did not properly account for the 27 minutes after the end of the Grand Final and before the appellant had left the complainant’s home;

   3. (3)

      that what the complainant said after the incident (a reference to the so-called complaint evidence), and particularly what she said to Ms Smiles, was inconsistent with an allegation of “forcible rape”; and

   4. (4)

      that after the complainant became aware that the matter would be investigated by the NRL, and then the police, she curated critical evidence.

8. [150]

   What follows focuses on the evidence of the complainant and appellant concerning the sexual activity that took place in the complainant’s bedroom, and the complaint evidence about that activity. It does not include any overview of the facts preceding the taxi driver knocking on the complainant’s front door. The relevant aspects of the evidence addressing those facts are set out above at [17]-[28] above.

9. [151]

   Upon hearing that the taxi driver was waiting for the appellant, the complainant said that her “heart dropped” because she felt as though the appellant was a “sleaze” and had only visited her to engage in sexual intercourse. The complainant then said to her mother “What does he think is gonna happen? Like, does he think we’re gonna have sex or something? There’s no way”. Her mother was said to have responded “No”. In the evidence in chief of the complainant’s mother, she also recalled this conversation having occurred in substantially the same terms.

10. [152]

    Having spoken to the taxi driver, the appellant went into the loungeroom to watch the end of the Grand Final. It is accepted that the Grand Final finished at 9:26pm, which left a period of approximately 27 minutes between the end of that game and the appellant’s departure. The appellant submits that the complainant gave an account of events after the end of the Grand Final that could only have lasted for materially less than 27 minutes, giving rise to a doubt as to the reliability of that account.

11. [153]

    After the Grand Final had finished, the appellant returned to the complainant’s bedroom and closed the door. The complainant asked about the taxi, saying “what did you expect was gunna happen?” and “something along the lines of… ‘did you think I was just going to have sex with you?’”. The appellant replied “It’s okay, I gave them $500, I can stay as long as I want”.

12. [154]

    At this time, the complainant had moved her body towards the pillows at the top of her bed. The appellant walked around to the window side of the bed, leaned on the bed — at which point a slat of the bed-frame broke — and tried to kiss the complainant. As the complainant did not want to kiss him, she said “no”, at which point he pushed her face into the pillow. He continued to try to kiss her, before grabbing her pants (being jeans that she said only fit around her loosely) and ripping them off while the complainant was trying to hold on to them. As these events and the following events were occurring, the complainant was saying “no”, “no, Jarryd” and “stop”, and did so “about three or four” times. He then either unbuttoned or moved aside the buttons of her shirt (which was shaped somewhat like a leotard and buttoned around her crotch; she was not wearing underwear) and put his mouth on her vagina and one or two fingers inside it.

13. [155]

    This lasted about 30 seconds, at which point the appellant suddenly stopped and stood up. He had injured her vagina, which began to bleed, resulting in blood being “all over [the appellant’s] hands”.

14. [156]

    The appellant then walked into the adjoining bathroom to wash his hands. The complainant also went into the bathroom to shower because she was covered in blood. After a “couple of minutes”, she got out of the shower, wrapped a towel around herself and left the bathroom.

15. [157]

    The appellant was out of the bathroom by this stage. The complainant told him that she was “really hurting”. The appellant, who looked “ready to leave”, asked her if a $50 note he had found belonged to her; she said it did not, so he took it. She then told the appellant that he had blood on his bottom lip, which the appellant washed off in the bathroom sink. He then said “I better go”, and left the house.

16. [158]

    The appellant gave evidence that, after speaking to the taxi driver, he re-entered the complainant’s bedroom, and, in the absence of there being any “real chat” between him and the complainant, he checked the NRL Grand Final score on his phone. After failing to get the game up on his phone or the complainant’s laptop, he left the bedroom and watched the end of game in the loungeroom with the complainant’s mother.

17. [159]

    When the Grand Final had finished, the appellant walked back into the complainant’s bedroom, and lay down next to the complainant on her bed. At some stage, he put his knee down on the bed and broke a slat supporting the mattress.

18. [160]

    The appellant then “attempted to kiss” the complainant, and she kissed him back in a kiss that “involved lips and tongue”. This lasted about 30 seconds, during which time he may have caressed the complainant’s face. The appellant then put his hand near the complainant’s vagina outside her pants. He did so on the supposition that this would be something that she would like. The complainant was “fine” with this occurring, and the kissing and touching continued. The appellant then “grab[bed] her hand and put it near [his] penis”, which she began to rub.

19. [161]

    While this was occurring, the appellant tried to put his right hand down the complainant’s pants. They were too tight for him to put his hand inside, so both he and the complainant tried to remove them by tugging down on them. When this did not work, the complainant “wriggled to the end of the bed” and “hopped… to get out of them”. The complainant then unclipped the bottom of her top, and the appellant put his finger inside her vagina. He did so because he “felt that was the next step”.

20. [162]

    In circumstances where the appellant and complainant had been kissing and touching one another, she had removed her pants and unclipped the bottom of her top, the appellant, knowing that the complainant “didn’t want to have sex”, thought he would “just please her”.

21. [163]

    The digital penetration went on for 20 or 30 seconds, at no point during which did the complainant tell the appellant to stop. The appellant then performed cunnilingus for about 20 or 30 seconds; the complainant was again said to be “fine” with this conduct.

22. [164]

    At this point, the appellant felt a liquid on his lip, jumped up in shock, and saw blood on his hands. The appellant immediately went to clean himself up. Having done so, he explained to her that he must have accidently cut her with his finger and “it will be fine”. The complainant then had a shower. The appellant repeated that it was just his finger that had cut her and that she should be “fine” and should see a doctor the next day if she was still in pain. The appellant, perceiving that the complainant did not wish to speak with him further, said that he had to leave and left for Sydney in the taxi.

23. [165]

    The messages exchanged between the complainant and the appellant before and on 30 September 2018 made plain to him that she found him sexually attractive and that she was at least open to engaging in sexual activity with him in the right circumstances. At the same time, the exchanges with Ms Smiles showed that the complainant was warned, and appeared to accept, that if the appellant was like other “footy guys” and was prepared to meet her, he would do so just for sex.

24. [166]

    At the outset, the appellant believed that his “best case” outcome from meeting the complainant was “having sex with her” — meaning penile-vaginal sex — and his “worst case” outcome was that they would merely meet without much more (see [22] above). The basis for that expectation fundamentally changed after the complainant had noticed the taxi waiting outside, had received no satisfactory response from the appellant as to what the taxi was doing, and had spoken to her mother whilst the appellant was outside talking to the taxi driver.

25. [167]

    The complainant’s evidence was that at this point there was “no way” that they were going to have “sex or something”, and that there was “no way in hell” that she was going to touch him or to allow him to touch her. It was not controversial that the complainant had reacted angrily to becoming aware that the appellant had a taxi waiting out the front of the house, the driver expecting to leave after 20 minutes or so. In a recorded telephone exchange with another footballer on 15 November 2018, the appellant had described the complainant as “filthy ’cause the cab was out the front” and as having “wigged out” (synonyms include “freaked out” or “lost her wits”). Nor was it in issue that, in response to her question prompted by the presence of the taxi and as to whether the appellant thought he was just going to come to the house to have sex with her and leave, the appellant said “it’s up to you really”. At this point the complainant had made known that she did not consent to any sexual activity.

26. [168]

    The complainant’s evidence as to what then occurred was that when the appellant tried to kiss her, she said “no”; that he continued to try to kiss her and grabbed her pants; that she said “no” and “no, Jarryd” three or four times as the appellant continued and eventually pulled her jeans off and moved his head down, putting his mouth on her vagina and one or two of his fingers inside it.

27. [169]

    It was clearly open to the jury, having assessed the complainant as a credible and reliable witness, to be satisfied that on her account each of the elements of the two offences was established.

28. [170]

    This Court must consider whether, notwithstanding the jury’s assessment — and either by reason of inconsistencies, discrepancies or other inadequacies in that evidence or in the light of other evidence — it is satisfied that the jury “must” have had a reasonable doubt. That “other evidence” includes the evidence of the appellant.

29. [171]

    In relation to the appellant’s evidence, it is not contended that it was such that the jury must have accepted it or, whilst not accepting it, must have considered it might be true (see De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12]). In other words, the appellant accepts that the outcome of this unsafe verdict ground does not turn on whether the appellant’s evidence itself must have given rise to a reasonable doubt as to his guilt. Nevertheless, the appellant’s account remains evidence to be considered in assessing whether upon the whole of the evidence the jury ought to have had a reasonable doubt.

30. [172]

    It is convenient to start that assessment with the evidence of the complainant’s reports following the incident, including to Ms Smiles and the appellant.

31. [173]

    The complainant’s first contact was with her mother, shortly after the appellant departed. She told her mother that he had left because of a “nosebleed”. In her text messages soon after the incident to the appellant (10:39pm), and to Ms Hartley (11:03pm), the complainant said that this was what she had told her mother. In her oral evidence, she explained that she did not immediately tell her mother what had “really happened” because she did not know how to explain it to her without her “having a panic attack or going crazy”. That explanation was plausible in circumstances where the events had just occurred, the complainant had suffered an injury which was causing significant pain and discomfort, and she was still trying to process what had happened. One or two days later, the complainant told her mother what on her account had “really happened”. According to her mother’s oral evidence, the complainant told her that the appellant “had pulled her pants down… she thinks he had bitten her… that she’d said she, she hadn’t wanted to do that [and] said, ‘No’”.

32. [174]

    Her first message to the appellant (10:11pm) was short, simply saying “I am hurting so much” (Ex 4). Her next text (10:15pm) was to her “best friend” Haylie Hartley, who did not respond for almost 40 minutes (10:53pm).

33. [175]

    Her third message (10:18pm) was to Ms Smiles. Upon Ms Smiles’ immediate response (see [84] above), they engaged in an exchange via Snapchat. Ms Smiles gave evidence in the third trial of her recollection of that exchange. According to Ms Smiles, the complainant described briefly what had happened without making any reference to her injury, the bleeding or to the sexual activity being forceful and not consensual. Ms Smiles’ evidence was that (with the exception of the Facebook messages on 29 November 2021) she had no further communications with the complainant after their Instagram exchanges on 20, 21 and 22 November 2018 (see [86] above). It follows that at no time before Ms Smiles gave evidence in the first trial had she communicated to the complainant her recollection of what the complainant had said in their Snapchat exchange. As at September 2018, the complainant had never met Ms Smiles in person, did not know her well, and only knew her from following her on Instagram.

34. [176]

    At 10:39pm, the complainant sent another text message to the appellant (which is extracted at [38] above). Her statement “… I didn’t want to do that after knowing the taxi was waiting for you” was a reference to sexual activity or “sex and stuff”. In her oral evidence, the complainant said that her statement “I thought you would have at least stayed?” did not imply that she thought or desired that the appellant would stay overnight. Rather, she was disappointed that he did not stay for a longer period than he did because she was obviously injured and “hurting really badly” (see [39] above). It was open to the jury to treat these messages as referring to sexual activity which the complainant “didn’t want” and to which she did not consent.

35. [177]

    The complaint to Ms Hartley was full and consistent with the complainant’s later oral evidence. The relevant exchanges are set out at [40] above and started at 10:54pm. She reported that after the taxi incident she said to the appellant “I got mad I was like are you kidding I’m not going to have sex with you for sure now”. It was contended in the appellant’s case, by reference to the complainant’s later response to Ms Hartley’s statement that what had happened was “rape” (that response being “We didn’t have sex this is from his hand or his mouth”), that the complainant was referring here only to “full” or penile-vaginal sex. However, that is not what the message says, and the complainant’s evidence was that she said to the appellant that there was “no way” that they were going to have “sex or something” or that she was going to allow him to touch her. In addition, in the next part of her message, the complainant said “he started being really pushy, like he wanted to have sex and I kept saying no”.

36. [178]

    Two further statements of the complainant to Ms Hartley must be considered. The first was her statement as to what she was thinking after the appellant had taken her pants off, namely “I was sort of scared but unsure and I wanted to but I also didn’t”. When asked in her evidence what she meant by this, the complainant said:

37. [179]

    This statement, in her 11:03pm message, followed the last statement in her 11:01pm message that “I kept saying no” after the appellant started being “really pushy” (see [40] above). In her 11:21pm message to Ms Hartley, the complainant reflects “I didn’t want to do it but I said stop and stuff and then I kind of just let it go because he was so into it and pushy”. It was well open to the jury to treat these statements as showing that the complainant’s lack of consent to the sexual activity continued, that she said “stop” and “no” after the appellant started to be “really pushy”, and that whilst she may have at some stage “just let it go” she did not say or otherwise communicate to the appellant that she was consenting to that activity.

38. [180]

    As to the second statement, at a point in her narrative to Ms Hartley (11:21pm) the complainant reflected that “I just feel like I’ve let it happen to myself by not screaming at him”. This statement records a thought that she could have screamed (and stopped it all) but obviously had not done so. In her evidence in chief, the complainant was asked about her response to the appellant’s conduct in circumstances where her mother was in the house:

39. [181]

    On 3 October 2018, the complainant made a report to her general practitioner, Dr Smart, who prepared a typewritten consultation note bearing that date (see [41] above). Relevantly, it records:

40. [182]

    Dr Smart’s evidence was that she had prepared this note based on what the complainant had told her in that consultation. On its face the note records a complaint of oral sex which was not consensual. It records that the complainant was “pressured” for oral sex and that she “said no to sex”. It might be suggested that the reference to “sex” is ambiguous because that word has been used by the complainant as only describing “full” sex. The difficulty for this speculation is that the note also records that there was a discussion about an “assault” and whether the complainant should report that matter to the police. Neither of those references is consistent with there being any question in Dr Smart’s mind as to whether the complainant was saying she did not consent to the oral sex.

41. [183]

    That note was amended by the complainant on 7 November 2018 following a further consultation with Dr Smart on 2 November 2018. Dr Smart’s evidence was that on the earlier date she went back to her note and went through it with the complainant to “make sure everything in it was correct”. Relevantly, the complainant told Dr Smart that she was “pressured into oral sex as well, not just sex”, and that “she didn’t want it and she told me she’d said no to oral sex”. Dr Smart’s evidence was that the handwritten corrections made to a copy of the first consultation note were not made in her presence, and the complainant’s evidence suggested that the corrections may have been made on a copy of the note as part of the early police investigation. When Dr Smart gave her evidence, she had two copies of the consultation note, one was clean and the other marked-up.

42. [184]

    It was open to the jury to be satisfied that the unamended consultation note recorded that Dr Smart was told in the first consultation that the appellant pressured the complainant for oral sex and that she said “no” and asked him to stop; and that the note as amended recorded that the complainant had said “no” to sex “and oral sex”. That addition did no more than emphasise what Dr Smart had been told and had recorded in the unamended note.

43. [185]

    The remaining reports were to the complainant’s sister and to Dr Nittis, and were consistent in significant respects with her earlier complaints and evidence of what had occurred. As to her sister, the complainant told her on 30 October 2018 that the appellant “had tried to go down on her and she said ‘stop’ and ‘no’”. As to Dr Nittis, the medical practitioner who examined the complainant on 12 November 2018, the complainant reported to her that she had said “no” and “no way” to kissing and told the appellant not to “touch me and stuff”; that she resisted his attempts to pull her pants down; and that she momentarily stopped resisting, at which point he removed her pants and went “down there”. On this evidence, that moment was preceded by clear statements indicating that she was not consenting.

44. [186]

    Returning to Ms Smiles, after 30 September 2018 the complainant did not have further contact with her until 20 November 2018, the day after the appellant had been charged. That contact occurred by Instagram. In those exchanges (see [86] above) the complainant enquired whether Ms Smiles had any record of their Snapchat exchange on 30 September 2018. The complainant also said that, when initially asked by the police, she had forgotten that “I said something to you” and expressed a belief that she had “told [Ms Smiles] what happened”. Two days later, in circumstances where Ms Smiles had no record of what had been said, the complainant spoke to the police and, having done so, said to Ms Smiles that she did not need to give them her name. There was no evidence as to what was said between the police and the complainant. It was clear, however that Ms Smiles’ name was not given to the police at that time.

45. [187]

    To summarise, this evidence indicates that there was a communication between Ms Smiles and the complainant on 30 September 2018 and after the incident, that there was no written or other record of that conversation, and that in late November 2018 the complainant’s stated belief was that she had told Ms Smiles “what happened”, which at that time could only sensibly be understood as referring to her version of what had happened. However, Ms Smiles had not communicated to the complainant what she recalled being told.

46. [188]

    The defence case suggested to the jury that in the complainant’s dealings with the police, which could only have occurred on or after 6 November 2018, she had deliberately sought to conceal from them the existence of Ms Smiles and their Instagram exchanges. Their exchanges before the incident were said to reveal how “keen” the complainant was to see the appellant, and to do so notwithstanding Ms Smiles’ warning that from his perspective it would only be for sex; and the exchanges after the incident were assumed in the defence case to show that the complainant’s Snapchat message to Ms Smiles did not include any reference to her injury, the appellant being forceful and the absence of consent.

47. [189]

    The complainant’s motive and reason for this concealment was said to be that she believed those exchanges, including the exchange on Snapchat, would not assist her version of events as told to Ms Hartley and eventually the police. It was said that the complainant’s version of events was false; and that her efforts to maintain that false account by concealing Ms Smiles and their exchanges cast doubt on the reliability and credibility of her version of events.

48. [190]

    It was for the jury to consider whether there was a reasonable possibility that the complainant deliberately concealed Ms Smiles and their interactions from the police, and did so because her version of events as told to Ms Hartley was not true. In considering this question, the jury had before it all of the complainant’s relevant text and Instagram exchanges with the appellant, Ms Smiles and Mr Page, including those which had been deleted from the complainant’s phone or which had not become available to the police until November 2020. As concerns their Snapchat exchange on 30 September 2018, the jury had the evidence of Ms Smiles.

49. [191]

    In relation to this aspect of the defence case, the following matters arose for the jury’s consideration. The first was whether at the time she first saw the police the complainant recalled what she had said to Ms Smiles after the incident; and whether, as Ms Smiles recounted, she had not referred to her injury, the use of force and the absence of consent. That being the position was not consistent with the statement in her Instagram exchanges with Ms Smiles on 20 November 2018, which suggested that at least when she first saw the police she had not recalled speaking to Ms Smiles (see [86] above). Nor was it consistent with the complainant’s evidence in cross-examination during the first trial that she did not recall what she had said to Ms Smiles on the evening of 30 September 2018 (see [59]-[60] above). (It should be noted here that the appellant’s submission to this Court to the contrary is contradicted by that evidence.) It was open to the jury to accept this evidence as reliable and credible.

50. [192]

    The second was whether her version of events as given to at least four other witnesses (being close friends, relatives or medical practitioners) before she had seen the police was to be regarded as questionable and her credibility diminished because on the evening of 30 September 2018 what she had said to Ms Smiles did not include reference to her injury, the bleeding and absence of consent. Matters relevant to this second question included whether the complainant remembered what she had said to Ms Smiles (as to which, see immediately above), and whether in the circumstances the fact that she had not told Ms Smiles about those significant aspects of what she alleged had happened was to be regarded as remarkable, and as casting doubt on the truthfulness of her subsequent “complaint” evidence. The evidence was that the complainant had never spoken to Ms Smiles in person and did not know her well. Moreover, some of the matters withheld from Ms Smiles (the bleeding and her injury) undoubtedly occurred. They were reported to Ms Hartley, and, if the complainant had given Ms Smiles a full and accurate description of what happened, would have been reported to her. They were not, and whilst the complainant described Ms Smiles as being “right” in respect of her warning that the appellant’s only interest would be in sex, she chose not to share with her the more graphic details of what had happened. In the circumstances, it was open to the jury to accept that it was unremarkable that the complainant had not given Ms Smiles a complete version of her account, especially in circumstances where fairly soon after she had given such an account to someone she described as her “best” close friend.

51. [193]

    As the Crown argued before the jury:

52. [194]

    The third matter was that, by early November 2018, the complainant had made detailed and repeated complaints. She had also communicated to the appellant within 50 minutes of his leaving her home that she had not wanted to do the “sex and stuff” that happened. All of this evidentiary material came into existence well before the complainant had any contact with the police and during a period in which she had continually expressed a desire not to report the matter to police. If the jury accepted the statements in her Instagram exchanges with Ms Smiles in late November 2018 as truthful, the complainant did not recall by the time she went to the police what she had reported to Ms Smiles, and assumed that she had told Ms Smiles what on her version of events had happened. In those circumstances, the jury could have reasonably considered that there was no reason for the complainant to believe that her exchanges with Ms Smiles contradicted the version of events she had given to Ms Hartley. So reasoning, it was open to the jury to reject the defence argument as to the possibility of deliberate concealment giving rise to a reasonable doubt as to her credibility and the reliability of her evidence as to what had happened.

53. [195]

    Finally, taking the jury to have assessed the complainant’s evidence to be credible and reliable, there is nothing in the appellant’s account which alone could give rise to a reasonable doubt as to his guilt. Nor is that argued.

54. [196]

    The above discussion deals with the evidence of the complainant’s reports of the incident, including to Ms Smiles. That discussion also addresses the concealment and curation of evidence with respect to the complainant’s interactions with Ms Smiles and Dr Smart’s consultation note.

55. [197]

    As to the deletion of text messages between the complainant and the appellant, the complainant’s unchallenged evidence was that she had a practice of deleting text messages “all the time”. The deletion of her messages with the appellant between 10:11pm on 29 September and 7:36pm on 30 September 2018 is consistent with that practice. Some of the messages deleted tended to support the complainant’s evidence that she was not interested only in sex. One of the messages that was not deleted was the “striking” example referred to in [18] above. All of these messages were available to the jury to be taken into account in considering the defence case as to concealment and curation. Their primary relevance was to establish the complainant’s sexual interest in the appellant, and that fact was never in issue, having regard to the complainant’s 10:39pm text to the appellant which was after the event and not deleted (see [38] above). The fact that these messages were deleted could not of itself have given rise to a doubt as to the credibility of the complainant’s version of events, which was significantly corroborated by her exchanges with Ms Hartley.

56. [198]

    Two further matters are raised by the appellant. They are the “emotional changeability” of the complainant and the time in which the alleged offending occurred.

57. [199]

    As to the “emotional changeability” of the complainant: it is said that the messages from the complainant to Mr Page demonstrate a quite general “emotional changeability” to the extent that the complainant wavered between wanting to see Mr Page and using the colourful epithets to describe how she felt about him. It is said that this characteristic of “emotional changeability” made it reasonably possible that the complainant’s initial response to the waiting taxi may have changed after a brief period of time such that the anger she initially felt towards the appellant ultimately dissipated upon further interaction with him.

58. [200]

    There are difficulties with this reasoning. The first is that, in context, the exchanges with Mr Page (summarised at [25] above) do not suggest that the complainant had changed her mind or views about him. Rather, she was trying to persuade him to visit, and became annoyed when he continued to refuse to do so and ridiculed her. The second is that the complainant’s evidence and the evidence of the appellant confirm that at the outset she made clear that she did not want to have sex with him. That continued to be her position, as the appellant’s evidence in cross-examination confirmed:

59. [201]

    As to the complainant’s version of events being inconsistent with the period of time in which they were said to have occurred: it is said that on the complainant’s version of events the appellant sexually assaulted her over no more than a couple of minutes and then left. That version is said not to account for, and to be inconsistent with, the 27-minute period between the end of the NRL Grand Final and the appellant’s departure from the house in the taxi. The appellant’s version is said to be consistent with that timeframe principally because, on that version, after speaking to the taxi driver he returned to the bedroom and then, after staying a few minutes, went to the loungeroom to watch the end of the Grand Final, before returning to the bedroom, where he engaged in sexual activity, followed by the injury, showering and departure.

60. [202]

    It was open to the jury to approach any question of timing on the basis that, whilst the evidence of the parties differed as to the order in which some events took place, the general sequence in which the sexual activity occurred in the bedroom, and what immediately followed it in the washing and showering in the bathroom, was not substantially different as between the versions of the complainant and appellant. It was common ground that the two acts of sexual intercourse occurred and were preceded by other sexual activity. On the appellant’s version, that activity relevantly commenced with kissing and continued with consensual participation by the complainant with no indication that she was not consenting or wanting the appellant to stop until the sight of blood. On the complainant’s account, conversely, none of this was consented to or consensually participated in, as she had made clear by what she had said and done. This being the position, the question for the jury was whether it was satisfied beyond reasonable doubt that the activity occurred as described by the complainant. There was no relevant timing consideration which entered into that assessment which could have given rise to a reasonable doubt as to whether those events occurred as the complainant described them.

61. [203]

    Having considered the whole of the evidence, including the matters raised by the appellant’s submissions, I am comfortably of the opinion that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of the charged offences.

Orders

1. [204]

   In the result, the orders I would propose are as follows:

   1. (1)

      Grant leave to the applicant to appeal on grounds 1, 2 and 3 from his convictions on Counts 1 and 2.

   2. (2)

      Dismiss the appellant’s appeal on grounds 1, 2 and 3 from his convictions on Counts 1 and 2.

2. [205]

   I have now had the opportunity to read the separate reasons of Rothman J and Sweeney J. Each of their Honours would allow the appellant’s appeal on grounds 2 and 3. Whilst I do not agree with their Honours that the appeal should be allowed on grounds 2 and 3, I accept that the appropriate order in the light of their Honours’ conclusions is that the appellant’s convictions should be quashed and a new trial ordered (as to which see WX v R at [96] per Beech-Jones J).

3. [206]

   ROTHMAN J: I have had the advantage of reading and considering the draft reasons for judgment of Meagher JA and Sweeney J. The remainder of these reasons are crafted on the basis that the reader has read the factual summary in each of those judgments and the analysis of the law. Before dealing with the particular orders and analysis of this case, it is necessary to reiterate some general principles, which, in my view, guide the resolution of the issues relevant to the current proceedings.

4. [207]

   As has been clarified in the reasons for judgment of Meagher JA, the principles, which govern the determination by an intermediate court of appeal of the question of whether a verdict is unreasonable or cannot be supported having regard to the evidence, require the independent assessment of the judges on appeal to determine whether the jury, at trial (or in the case of a summary trial, the decision-maker), should have entertained a reasonable doubt on the evidence before them. As has been clarified by the High Court on several occasions, such an assessment does not turn on whether there is evidence to sustain a verdict. If there were no evidence to sustain a verdict then, as a matter of law, the verdict would need to be overturned.

5. [208]

   Rather, the task of the court on appeal is to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. The emphasis in the foregoing sentence is on the words “beyond reasonable doubt”. In other words, even though it is open to the decision-maker, as a matter of law, to find guilt, because there is evidence to sustain each element of the offence, the assessment undertaken by the court on appeal is the determination of whether, despite the circumstance that there is, as a matter of law, evidence on each element, a reasonable doubt that the jury should have entertained as to whether that evidence proves guilt beyond reasonable doubt.

6. [209]

   The passage to which Meagher JA refers in M v The Queen, supra, was cited with approval, as indicated in the reasons of Meagher JA and was earlier cited with approval in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53. In the first plurality judgment (Gleeson CJ, Hayne and Callinan JJ), the Court referred to the passage recited by Meagher JA in these reasons and said:

7. [210]

   The question whether the verdict of a jury is unreasonable is a question of fact. The question of whether there is evidence upon which a jury could convict is a question of law. The issues are different, and the approach of an appeal court should be different. This is the reason that, in each of the statements of principle as to the approach to be taken clarified by the High Court, there is always a reference to the advantage enjoyed by the jury. The process of appeal, with or without such an advantage, is not the substitution of the view of one, two or three judges for the view of the jury, but an assessment, on the whole of the evidence, that the jury should have had a doubt. Such a question requires the appellate court to determine that, on an assessment of the whole of the evidence, the jury was bound or required to have a reasonable doubt.

8. [211]

   In the second plurality judgment in MFA, supra, the High Court (McHugh, Gummow and Kirby JJ) referred to the measure of restraint on courts of criminal appeal in taking the serious step of setting aside a conviction based upon the verdict of a jury. The plurality referred to Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4 and emphasised the task of the court on appeal as one in which it was required to determine whether a jury, acting reasonably, was bound to have a reasonable doubt.

9. [212]

   While the context in which the comments to which I next refer is a civil appeal, the comments are nevertheless apposite. In Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4, Gleeson CJ said:

10. [213]

    The High Court judgment in MFA was centrally concerned with unreasonableness of the verdict in circumstances of an alleged inconsistency between different verdicts. Nevertheless, the principle of unreasonableness as clarified in M, supra, has been the subject of approval consistently since its publication: see Pell v The Queen, supra.

11. [214]

    The foregoing is intended not to detract, even if that were possible, from the principles outlined by the High Court and in the reasons for judgment of Meagher JA above, but, rather, to compare and differentiate between an assessment, on the whole of the evidence by the jury on one hand, and, on the other hand, whether the jury should have reached, or was bound to reach or was required to reach, a verdict of not guilty on the basis that there must have been a reasonable doubt. While such an assessment is based upon independent assessment of the judge on appeal, it is insufficient for the judge on appeal to intervene merely because the jury could have had a reasonable doubt and, if the judge were a member of the jury, the judge would have had a reasonable doubt or determine a verdict of not guilty.

12. [215]

    Usually, but not always, the circumstance that a judge has a reasonable doubt will point to the proposition that the jury should have had such a doubt. However, an appeal on an unreasonable verdict is not a re-trial on the evidence already adduced, in circumstances where the appeal court does not see or hear all the evidence before the trial court. In other words, the advantage enjoyed by the jury must be given full weight.

13. [216]

    The second aspect of a general nature to which it is necessary to refer is the circumstance of “word on word” trials, particularly in sexual offences. The fact, if it were the fact, that sworn evidence is given by both complainant and accused, the effect of which is different, does not, necessarily, give rise to a reasonable doubt.

14. [217]

    Nevertheless, the decision-maker is required to determine, even if the decision-maker does not believe the accused or all of that to which the accused testifies, that the version of events given by the complainant (or other independent witness) is accepted beyond reasonable doubt. If it were not accepted beyond reasonable doubt, then, in the absence of independent evidence proving guilt, there must be a reasonable doubt as to the guilt of the accused.

15. [218]

    The foregoing does not mean that there must be independent evidence corroborating the evidence of the complainant or direct witness. Such direct evidence, if it were to exist, may make a finding of guilt more easily reached, but the existence of such independent evidence is not essential.

16. [219]

    The experience of those who are, unfortunately, required to deal with complainants in sexual assault cases is that the stereotypes that may have existed as to victims in such cases a generation or more ago should be consigned to the dustbin. Thus, victims of sexual assault are often assaulted by persons known to them and in whom they may have a sexual or romantic interest, either consciously or sub-consciously. The whole notion of “date rape” is based upon the proposition that non-consensual sexual conduct occurred between persons who are, otherwise, sufficiently attracted to each other to be in each other’s company. Similarly, there can be and is, albeit probably reported less often than most, rape in marriage and sexual assault that occurs even after kissing. The circumstance that a complainant was out drinking with the alleged perpetrator is not inconsistent with sexual assault and may seriously affect the capacity of the complainant to have consented.

17. [220]

    Further, while at one level irrational, many victims of sexual assault have feelings of guilt or embarrassment. The circumstance that I consider such feelings irrational is not a criticism of the victim and does not detract from the reality of the feelings. Such feelings of embarrassment and/or guilt form one of the bases for the legislative suppression of the names of sexual assault victims in certain circumstances. Even in circumstances where the fact of a sexual assault is revealed by the alleged victim, it is understandable that the intimate details of the nature of the assault may not be disclosed and that such detail and/or the fact of the assault may not be disclosed to persons other than those close to and trusted by the alleged victim.

18. [221]

    With those general comments, it is necessary to deal with aspects of the issues with which the jury was dealing at trial. The circumstance that the complainant in this allegation did not disclose the fact of a sexual assault or the details of the sexual assault to Ms Smiles is not inconsistent with the truth of the allegation.

19. [222]

    The circumstances under which Ms Smiles was known and “befriended” by the alleged victim are outlined in each of the other reasons for judgment in this matter. The failure to inform Ms Smiles of the sexual assault is in a fundamentally different category to providing details which are inconsistent with a sexual assault.

20. [223]

    It is clear and obvious, from the evidence, that the complainant was, for her own reasons, embarrassed about the events. Notwithstanding the complainant’s eventual disclosure to her mother, the complainant did not disclose the events immediately and gave a version of events which are obviously and independently untrue in a way that masks the occurrence of any sexual activity.

21. [224]

    Plainly, the bleeding was not occasioned by a nosebleed. The proposition that such a statement, for example, or the failure to tell Ms Smiles of the events, is, in the circumstances, inconsistent with the truth of the events as told by the complainant is, in my view, tenuous.

22. [225]

    Whatever doubt may arise as to the truthfulness of the complaint, it is a doubt that is not occasioned by independent evidence inconsistent with the complainant’s version. As a consequence, the advantage enjoyed by the jury of observing most of the evidence (including the video recording of the complainant and sound recording of the accused) is one to which this Court should defer.

23. [226]

    Otherwise, on the issue of unreasonable verdict, I agree with the analysis in the reasons for judgment of Meagher JA.

24. [227]

    I turn then to the issues raised by Grounds 2 and 3 of the Notice of Appeal.

25. [228]

    In his Honour’s reasons for judgment, Meagher JA recites the terms of s 306D of the Criminal Procedure Act. It is unnecessary to reiterate those terms. In order for the provisions of s 306D(2) of the Criminal Procedure Act to apply, the trial court must be satisfied, albeit on application by one or more of the parties, that it is “necessary” for further oral evidence to be adduced.

26. [229]

    The “necessity” for that evidence is a “necessity” to clarify matters relating to the original evidence; to canvass information or material that has become available; or in the interests of justice. In such circumstances, pursuant to the terms of s 306D(3), the further examination is confined to the basis upon which leave has been granted.

27. [230]

    There is discussion in the other reasons for judgment in this matter on the use of the term “necessary”. The term is here used as the basis for the satisfaction of the Court. There is an obvious purpose in the provisions of s 306D of the Criminal Procedure Act. The purpose is to avoid, where appropriate, the requirement to adduce the same evidence more than once in circumstances where evidence of that kind may be distressing to the witness and may exacerbate any trauma that may be suffered by the witness. Nevertheless, the provisions of s 306D(2) are designed to ensure that, notwithstanding the evident and commendable purpose associated with admitting recordings of evidence earlier given, justice to the parties will be achieved.

28. [231]

    I accept that the word “necessary”, where used in s 306D of the Criminal Procedure Act is a “strong word” and requires more than desirability or convenience (see WX v R, supra, per Beech-Jones J). However, the term “necessary”, where used for the purpose of the satisfaction of the Court in exercising its jurisdiction, is not ordinarily used synonymously with the term “essential”. Rather, it is to be understood to mean that the judicial officer is required to be satisfied that the additional examination is “reasonably required or legally ancillary to the accomplishment” of one of the three criteria prescribed by the sub-section. In Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19, McHugh J said:

29. [232]

    Nevertheless, as earlier stated, the judicial officers are required to be satisfied of something more than “desirability” or “convenience”. Moreover, the satisfaction must be measured against the purpose and intent of the principal provisions and the achievement of the purpose underpinning those provisions in the context of the conduct of a just trial.

30. [233]

    In that context, it is appropriate to comment that the satisfaction requires a satisfaction that it is necessary for the complainant or special witness to give further oral evidence to clarify matters; to canvass information or material that has become available; or in the interests of justice. The criterion of “interests of justice” confirms that these are the only criteria justifying further evidence (Finance Facilities Pty Ltd v Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12). It is difficult to imagine that if it were not “in the interests of justice” leave would be granted. Nevertheless, it is the interests of justice balanced against the purposes of the provisions.

31. [234]

    Having made the foregoing comment, it is necessary to note that if there were information or material that has become available since the original proceeding and such information was probative of an issue in the proceedings and significant, then, to the extent that the information or material is to be used to challenge the credit of the complainant, it is difficult to envisage where such further evidence would not be necessary, in the sense used above, for a fair trial.

32. [235]

    At trial, Counsel for the appellant submitted that further questions were necessary in fairness to the complainant. It was suggested that, in the absence of further questioning of the complainant, it would not be open to the appellant to submit that the failure to inform Ms Smiles of the sexual assault affected the credit of the complainant.

33. [236]

    There are limitations on the use of the principle in Browne v Dunn ((1894) 6R 67, see Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1) to an accused. Because the Crown is required to prove each of the elements of an offence beyond reasonable doubt and no burden of proof rests upon an accused, no inference can be drawn as a result of the failure of an accused to adduce evidence (RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [28], Gaudron ACJ, Gummow, Kirby and Hayne JJ). Similarly, there are good reasons why the rule in Browne v Dunn should not apply to an accused at trial without a consideration of the circumstances of the accused.

34. [237]

    Given that it is for the Crown to prove beyond reasonable doubt each of the elements of the offence, any basis upon which a jury may not be satisfied beyond reasonable doubt is a basis upon which the jury must reach a verdict of not guilty. It may well be, for example, that an accused has no knowledge of the circumstances that give rise to doubt about the credibility or reliability of a witness or complainant or the facts of the offence. Yet, questions may still be asked suggesting unreliability of the evidence to which a particular witness has testified or canvassing possibilities that are different from the testimony. It is therefore necessary to ensure that a basis upon which there may be reasonable doubt can be the subject of submission, subject, of course, to the requirement to conduct a trial that is fair and just.

35. [238]

    In this case, the learned trial judge refused to give the appellant the opportunity at trial to examine the complainant about the material that had become available relating to the failure of the complainant to disclose to Police the communications with Ms Smiles at or around the time of the sexual assault. And, to a lesser extent, the communication about Mr Stephen Page was material that indirectly had the capacity to demonstrate issues going to the credibility of the complainant. As has been indicated earlier, the credibility of the complainant was the most important issue in the trial.

36. [239]

    The circumstance that the trial judge took the view that the complainant would merely testify that she had forgotten is not to the point. First, it assumed an answer, albeit based on answers given in other circumstances. More importantly, given that it is the jury that is the factfinder, it was for the jury to determine whether to believe the complainant when and if she were to have testified that she had forgotten and the extent to which that evidence would impact upon the jury’s assessment of the complainant’s credibility.

37. [240]

    In circumstances where the complainant was willing to give further evidence, the ability to canvass information or material that has become available and/or is in the interest of justice, does not immediately seem to cause tension with the purposes associated with confining the evidence to the record of the original evidence adduced as the evidence at the earlier trial.

38. [241]

    The fact is that the proposition, being that the communications with Ms Smiles may have been concealed or that the complainant considered her communications with Ms Smiles did not support her version of events, could have been put to the jury without the proposition being put to the complainant. Nevertheless, in this case, demeanour would have played a significant role in the determination of that which had been proved beyond reasonable doubt. It is, in those circumstances, essential, where it is possible and not inconsistent with the purposes of the legislation, for the jury to assess the complainant’s evidence in answer to those questions.

39. [242]

    Further and most importantly, for the concession to have been made by the Crown, in my view correctly, that the propositions sought to be put could be put to the jury without necessarily being put to the complainant, it was manifestly unfair for the learned trial judge to direct the jury that the proposition could not be put without having given the complainant an opportunity to answer the question in circumstances where the trial judge had denied the appellant the opportunity to put such questions.

40. [243]

    I have concluded, in part for the reasons published by Sweeney J, that each of Grounds 2 and 3 have been made out and the miscarriage associated with the error was exacerbated by the direction of the trial judge in relation to the submission on behalf of the appellant at trial.

41. [244]

    Notwithstanding that the trial judge was probably correct in determining the likely evidence that would be forthcoming from the complainant as to the question and the likely impact that evidence would have on the complainant’s evidence and whether there was a reasonable possibility, inconsistent with the complainant’s evidence, the appellant is entitled to have had the submission made without comment and the questions asked. I do not consider there is, in the circumstances of these proceedings, any discretion that would result in the verdict not being quashed. The effect of the foregoing reasons is that I would uphold Grounds 2 and 3 of the appeal and dismiss Ground 1 of the appeal. In those circumstances, I would order a new trial.

42. [245]

    While there may be very good reason why, in circumstances where an accused has suffered three trials and already served significant time in prison, a new trial may not be warranted, in my view, that is a consideration that should be left to the Director of Public Prosecutions or her delegate. A recent explication of the relevant principles is that of Beech-Jones J in WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142:

43. [246]

    In the current circumstances, it is unlikely that a new trial will occur before the expiry of the non-parole period and most of that period has already been served. As stated, there is good reason for there not to be a fourth trial, but, in my view, given that the ground of unreasonable verdict was not upheld, the discretion not to undertake a fourth trial is one to be exercised by the Crown. The circumstance that the Court may order a new trial does not restrict the discretion reposed in the Crown not to proceed to trial again. I propose that the Court make the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Dismiss Ground 1 of the appeal and uphold Grounds 2 and 3 of the appeal.

    3. (3)

       Quash the appellant’s two convictions.

    4. (4)

       Order a new trial.

44. [247]

    SWEENEY J: On 4 April 2023 Jarryd Hayne, the applicant, was found guilty by a jury of two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW).

45. [248]

    That was the applicant's third trial. At his first trial in December 2020 the jury were unable to reach a verdict. At his second trial in March 2021 the jury returned verdicts of not guilty of two offences of aggravated sexual assault and guilty of two alternative charges of sexual intercourse without consent. On an appeal to this Court against those convictions, this Court ordered a retrial. That trial was the applicant's third trial before Judge Turnbull SC and a jury in March – April 2023.

46. [249]

    The applicant now seeks leave to appeal against his convictions on three grounds:

    1. (1)

       Ground 1: the verdicts are unreasonable, or cannot be supported, having regard to the evidence.

    2. (2)

       Ground 2: the trial judge erred in determining that the complainant was not compellable to give further evidence about her interactions with Monique Smiles and Stephen Page.

    3. (3)

       Ground 3: a miscarriage of justice was occasioned by the trial judge’s ruling refusing to compel the complainant to give further evidence about her interactions with Monique Smiles.

Summary of evidence at the trial

1. [250]

   The allegations the subject of the two charges were an act of digital penetration of the complainant’s vagina and an act of cunnilingus. There was no issue at trial that both acts occurred. The elements of the offences charged in issue were whether the Crown had proved beyond reasonable doubt that the complainant did not consent to each act of sexual intercourse and the applicant knew that she did not so consent.

2. [251]

   In accordance with s 578A of the Crimes Act the complainant and her family members will not be referred to by name.

3. [252]

   In accordance with relevant statutory provisions and usual practice the complainant's evidence at the first trial was recorded and a video recording of the complainant's evidence was played to the jury in the third trial.

4. [253]

   At the time of the offences charged the complainant was living in a suburb of Newcastle in a house with her mother.

5. [254]

   On 17 September 2018 the complainant sent a message to the applicant on Instagram: "You are absolutely gorgeous x". They did not know each other.

6. [255]

   On 18 September the complainant and applicant exchanged the following messages on Instagram.

7. [256]

   On 22 September 2018 the complainant sent an Instagram message to the applicant “Boy.. when are you going to be free.. I am never in Sydney".

8. [257]

   The applicant replied that he was spending time with his child.

9. [258]

   Between that date and 29 September 2018 the complainant and applicant communicated via Snapchat.

10. [259]

    On the weekend of 29 and 30 September 2018 the applicant travelled to Newcastle for a friend's "bucks party". The applicant and complainant had telephone contact over the weekend. He invited her to attend the party on 29 September 2018 but she declined. The following communications occurred between them on 29 September 2018.

11. [260]

    At 10:03pm the applicant called the complainant. The call lasted one minute and 33 seconds. At 10:11pm the following exchange of messages occurred:

12. [261]

    On 30 September 2018 the applicant called the complainant at 12:54am, the call lasting six seconds. The complainant sent the following message to the applicant at 12:55am: "Your phones fucked. I'm seeing you before you go tomorrow ok. Morning coffee or breakfast. Friends are welcome. Night”.

13. [262]

    At 7:41am that same day the following exchange of messages between the applicant and complainant occurred:

14. [263]

    During the day of 30 September 2018 the complainant exchanged messages with a friend of hers, Stephen Page, as follows:

15. [264]

    The applicant sent the complainant an address and said to come there. She said no because there were other men at the house. He said he would come to see her and she agreed.

16. [265]

    The complainant then sent the following messages to the applicant.

17. [266]

    The complainant exchanged the following messages with Monique Smiles, whom she said she knew through Instagram, had never met, and did not know well.

18. [267]

    The complainant and Stephen Page then exchanged the following messages.

19. [268]

    At 7:31pm the applicant called the complainant and said he was going back to Sydney and would come and see her on the way. At 7:36pm she texted her address to him, followed by messages "Are u coming or not" and "Where are you fool".

20. [269]

    The applicant decided to catch a taxi from Newcastle to Sydney. A taxi collected him from an address in New Lambton at around 8:45pm. The applicant called the complainant at 8:48pm, while he was in the taxi, and told her he was coming over. The taxi arrived at the complainant's address at 9:07pm.

Complainant’s evidence

1. [270]

   The complainant gave the following evidence in the first trial, which was played to the jury in the third trial.

2. [271]

   On 30 September 2018 she was living with her mother because she was recovering from a period in hospital with an illness. As a result of the illness one of her eyes was closed.

3. [272]

   When asked about the conversations with the applicant to which I have referred above, and what she hoped may happen with him, she said she wanted to meet him, she did not know what was going to happen or whether he would be interested in her, or would want to see her more. She said some of the things she said in messages were "Maybe to get him to like me", "Part of me also wanted him to respect and like me as a person", she did not know what would happen in the future. She might have thought it would turn into something more.

4. [273]

   She said after the Instagram messages above they communicated on Snapchat and by text message. She said the Snapchat messages were "Flirty type sexual type stuff". She sent him "selfies", including "sexier ones", in her underwear, as at "kind of a way to turn him on".

5. [274]

   She said she wanted to "hang out with him", "meet him", "keep talking to him". She said she "wanted to meet up", "for coffee, first, if anything". She did not "just want to meet up and have sex". That was not what she had in mind. It was "not a plan to just have sex".

6. [275]

   She said on the weekend she saw on Snapchat that the applicant was at a house with "some other males". She knew he had been at a "bucks party" because they had spoken on his way there and when he was there. He asked her if she wanted to go to where he was, but she said no because there were a number of men there, and they had been at a "bucks party" and she did not want to be there by herself. He said to her to bring a friend. She said no.

7. [276]

   They had exchanged messages that she wanted to see him before he left, if he wanted coffee, as set out above. He sent her videos of him singing in a car.

8. [277]

   After she said she would not go to the house where there were other men, the applicant said he would come and see her. She agreed. She said she agreed to him coming over because she wanted to see him and meet him before he went back (to Sydney). She said she did not have a plan to have sex. She did not know, or have an expectation, of what was going to happen.

9. [278]

   She said she knew who the applicant was and she found him attractive but she was not a football fan.

10. [279]

    She said before the applicant arrived at her house she was wearing a leotard type top which buttoned up at the bottom, with a bra underneath and black pants. She did not have underwear under the leotard because they would show an outline in her outside pants, and it was easier to button up the leotard without underwear on. Her pants were made of a stretchy, "loose" type fabric. The button on her pants was broken.

11. [280]

    Her mother was in the house. She told her mother the applicant was coming around.

12. [281]

    It was an agreed fact in the trial that the applicant's taxi arrived at the complainant's address at 9:07pm.

13. [282]

    The complainant said she was in her bedroom when she heard a knock on the door. She answered the door. She did not know if her mother was in her own room or the lounge room. She could hear the television. When she answered the door she was feeling excited and nervous. She said the applicant went into her bedroom. She said that was because she was embarrassed to be living with her mother at age 26, and that was the only private area other than "out the back".

14. [283]

    She said when they went into the bedroom she sat on the left side of her bed, in front of the pillows, with her legs crossed. The applicant knelt over from the right side, leaning towards her on his left side.

15. [284]

    The window blinds and bedroom door were closed. She said they did some small talk, although the applicant did not talk. She had her laptop out. The applicant suggested "singalongs", took her laptop, looked up some videos and began singing songs. She thought that was awkward and "weird". Not long after she heard a beeping outside. She asked the applicant if he could hear a car beeping. He did not say anything. She looked out of the blinds. She asked the applicant if there was a car waiting, a taxi outside. He was singing. He did not respond. At some point he said "It's okay. I can stay as long as I want". The complainant said when she realised there was a car outside she felt "confused and not very good".

16. [285]

    There was a knock on the front door. Her mother answered the door. Her mother then knocked on her bedroom door. The applicant jumped up and said "Is that your mum?". She said "Yeah just open the door". He hesitated. She said to him "Open the door, she's gonna think, like, we’re having sex or something." He opened the door. Her mother said "The taxi lady’s waiting for you". Her mother said the taxi person had said "Is Jarryd here? It's been 20 minutes". The applicant went outside.

17. [286]

    The complainant said her "heart dropped"; she "felt like he had only come there for one thing". She said she felt "saddened" that "he must only have seen me in one type of way" if he was only going to come in for 20 minutes and then leave. The complainant was lying on her bed. She said to her mother "There is no way I’m about to have sex with him", "What does he think is going to happen? Like does he think we’re going to have sex or something? There is no way". Her mother said "No".

18. [287]

    The complainant said when she agreed for the applicant to come to her house, she wanted to meet him, she did not "really have any intentions" or "plans", or “didn't really know what was going to happen; if it had gone that way, it might have gone that way, but it didn't go that way. It didn't go a sexual way."

19. [288]

    The applicant came back inside, walked past her bedroom. She assumed he walked into the lounge room. She heard him say "Go the Roosters". It was an agreed fact in the trial that the 2018 National Rugby League grand final was on that night between the Sydney Roosters and Melbourne Storm.

20. [289]

    The complainant said when the applicant walked back into the house, past her bedroom towards the lounge room she felt "like absolute crap. Like, I felt like it was obvious what he wanted and I felt sad and stupid for flirting with him at the start."

21. [290]

    About a minute after the applicant walked past her bedroom, he was in the hallway outside her room or in her doorway and he said "I'm jealous", which she thought was about the football. She felt angry. She was still lying across the bed on her stomach, with her head towards the door.

22. [291]

    The applicant closed the bedroom door. She moved away from him up towards the pillows. She was again sitting with her legs crossed.

23. [292]

    She asked the applicant "Why would the taxi be waiting outside for 20 minutes? Why would you get them to wait outside for 20 minutes, what did you expect was gonna happen". He said "It's okay. I gave them $500. I can stay as long as I want". She said to him something like "Did you think I was just going to have sex with you?". She said she felt angry, hurt and sad, that he was a "sleaze", he saw her as an object, and he only came there for one thing.

24. [293]

    She said the applicant walked around to where she was sitting on the bed, leant on the bed, was sort of on top of her and tried to kiss her or kissed her. She said no. He pushed her face sideways down into the pillows with his hand on the side of her face. He kept trying to kiss her. She said no.

25. [294]

    She said he grabbed her pants, and she grabbed her pants. She thought to herself "Should I just let him go? Should I just him do it?", then she thought "No". The applicant pulled her pants off in one go. She did not know whether he ripped the buttons open on her shirt or whether it was pulled to the side. He lent down "into there" when she was still saying no. She was "kind of sitting up in a way," and "his face was kind of like down there". She said "I'm not sure whether it was his mouth. I think it was his mouth. I don't know whether he cut me with a ring or nails or... He was just being really rough." She said it was forceful and fast. She said she said “No” and “No Jarryd” probably three or four times.

26. [295]

    She said she did not want the applicant to touch her, she did not agree to him kissing her or pulling her jeans off.

27. [296]

    She said she thought she pushed the applicant. She thought she froze. She said no. When he was trying to kiss her she pushed him. He pulled her pants down, she pulled them up, and they just came off. She said when she said no the applicant did not respond and did not stop.

28. [297]

    She said his face and mouth ended up at her vagina. She saw the top of his head. She felt roughness. His mouth was involved, his mouth and fingers. She did not know if he bit her. She did not know if it was one or two fingers, "whether there was a finger trying to get in there". It went on for 30 seconds. She said she did not know he was going to do that, she did not ask for it. She said no. She said she did not yell or scream even though her mother was in the house because her mother has mental health problems and has panic attacks.

29. [298]

    She said she saw blood on the bed. The applicant stood up with blood all over his hands and fingers. She shuffled back towards the other side of the bed. The applicant walked into her ensuite bathroom, and washed his hands in the sink.

30. [299]

    She said she felt she had to get into the shower because "there was blood all down [her] legs and… dripping everywhere". The blood was coming from her vagina. It was not her menstrual period. She went into the shower. She stayed in the shower for a couple of minutes. Her vagina was stinging. There was blood in the water and running down the drain.

31. [300]

    She said she got out of the shower, wrapped a towel around herself and walked out of the bathroom. The applicant was standing in the bedroom with his phone in his hand. She said to him, "I'm really hurting". She saw the applicant had blood on his lip and told him. He went and washed it in the bathroom. He came out and said "I'd better go". He left.

32. [301]

    It was an agreed fact in the trial that the applicant left the complainant's address in the taxi at around 9:53pm on 30 September 2018.

33. [302]

    The complainant said she did not consent to the sexual activity because she was angry that the applicant had the taxi waiting outside and she thought he had come thinking he was going to "get sex". She said she felt degraded, upset and angry.

34. [303]

    She said she took photos and a video recording of the blood on the pillow, bedcover, and towel.

35. [304]

    At 10:11pm the complainant sent the applicant a message "I'm hurting so much". She said she sent that message because the applicant had wanted to kiss and touch her but she knew he had a taxi waiting outside for 20 minutes and she did not want to, she said "No", "Don't", "I don't want to" and she was not sure if he "bit" her or "cut" her or what he did but then she was bleeding everywhere.

36. [305]

    The complainant sent another message to the applicant:

37. [306]

    The complainant said when she wrote in that message "I thought you would have at least stayed”, she meant because he knew he had injured her, but he just walked out.

38. [307]

    The applicant replied to that message "Go doctor tomorrow".

39. [308]

    The complainant said she went to her mother's room because of all the blood in her room. She told her mother "Jarryd's got a nosebleed and gone". They discussed how his behaviour and the situation were weird.

40. [309]

    The complainant then exchanged messages with her friend Haylie Hartley.

41. [310]

    The complainant and Ms Hartley then discussed the complainant's injuries, photographs of which the complainant had sent to Ms Hartley.

42. [311]

    There was then further discussion between the complainant and Ms Hartley about the complainant's injury. The complainant said:

43. [312]

    The complainant said in evidence she spoke to her friend Sam McCarthy on Snapchat and told him "vaguely" what had happened. She told him the applicant came over and wanted to do stuff. She told him about the taxi and the applicant had hurt her but she said no, and she did not know what to do, and she was confused.

44. [313]

    The complainant said the next day she told her mother "what had really happened that night and that are [the applicant] didn't have a bleeding nose and what had happened that night with him”. She said her mother and Hailey were telling her to go to the doctor. Her vagina still hurt the following day.

45. [314]

    The complainant said she went to see a doctor on Wednesday 3 October. She told the doctor what happened. The doctor looked at the area and said it looked like a bite, and not to touch it because it could heal easily. She said the doctor spoke to her about reporting it to the police. The doctor wrote down what had happened in case the complainant ever wanted to report it. I will refer to the evidence about the doctor’s note later.

46. [315]

    The complainant said a few days later she Snapchatted to the applicant that her friend had said she should report what happened. The applicant replied “What?". Then later, she was not sure if it was the same day or next day he wrote "Any allegations?". She did not reply. She said she had three missed calls on Snapchat from the applicant around the middle of October.

47. [316]

    The complainant said in probably the last week of October or the first week of November she told her sister on the phone what had happened with the applicant.

48. [317]

    There was an exchange of messages between the complainant's sister and the complainant:

49. [318]

    The complainant said she told her sister not to tell anyone because she did not want to report it. She later found out that her sister had told her husband, the complainant's brother-in-law. He called the complainant. He asked her if she would be comfortable talking to a person from the NRL Integrity Unit. The complainant spoke to that person, who wanted to contact the police. The complainant said she was at first scared, but said yes. The complainant was then contacted by police.

50. [319]

    While the police were at her home the complainant contacted the applicant on Snapchat. The police video recorded her Snapchat conversations with the applicant. The first message the complainant sent to the applicant, on 14 November 2018, in the presence of the police, was "I thought you would have at least asked whether I'm okay or not by now".

51. [320]

    The applicant’s reply, received possibly the next day, was "You said you were okay the last time we spoke?" (received at 9:35am on 15 November 2018). The complainant replied:

52. [321]

    The applicant replied (at 11:20am on 15 November 2018):

53. [322]

    The complainant replied (at 12:36pm):

54. [323]

    The applicant replied at 12:36pm on 15 November 2018: "That's completely untrue! Everything we did you consented to."

55. [324]

    In cross-examination, the complainant agreed that she knew when the applicant arrived at her home that her mother was watching the rugby league grand final. She said she was unsure if the applicant would be interested in what was happening in the grand final. She said she went into her bedroom with the applicant immediately. She did not think to introduce him to her mother, who was watching the grand final, because she was embarrassed about living with her mother and she was nervous.

56. [325]

    When asked "Did it occur to you when Jarryd Hayne came into your bedroom that he might think that you would be interested in sexual activity?", the complainant said "Probably". She said she did not think about it at the time, she just wanted to meet him. She said she thought her bedroom was appropriate and private, and the best option in the circumstances to talk with the applicant.

57. [326]

    She said she was physically attracted to him. She agreed she was unhappy about the taxi outside when she became aware of it. She maintained her account that when the applicant returned to her bedroom he moved to kiss her, which she did not want, and he applied force to her face. She said she did not kiss the applicant. She said the applicant removed her pants while she had hold of the top of her pants to stop them coming off and while she was sitting on the bed. She said he pulled them off in one movement. She said the trousers were not tight or clinging. She denied that she cooperated with the applicant to remove her trousers.

58. [327]

    She disagreed with the applicant's version of the events as it was put to her in cross-examination.

59. [328]

    She said she was unsure if the applicant put a finger or fingers inside her vagina. She agreed that when the two of them became aware of blood she had felt no pain and the applicant immediately got up and went to the bathroom.

60. [329]

    She disagreed that when she went into the bathroom the applicant said he might have scratched her with his finger. She agreed she got into the shower. When she got out of the shower the applicant was in the bedroom. She told him how much it was stinging. She disagreed he said it was probably just a nick he did with his finger, or that she should go to the doctor in the morning. She agreed the applicant did not stay long after she got out of the shower and she did not like that.

61. [330]

    She said that when the applicant came to her house that day she wanted to see him, she did not plan that anything sexual might occur, she did not know what was going to happen. She said she possibly thought it was possible when the applicant was in her bedroom something sexual might happen. If it had happened in the right way, she would possibly have been open to it.

62. [331]

    She agreed that a lot of communications she had with the applicant in the previous fortnight were about sexual activity. She agreed it was clear from the Instagram messages that she had a sexual interest in the applicant. She agreed she had thoughts about wanting to have sex with him, and if things worked out, she would. She thought from his messages that he might be interested in her. She agreed that after the Instagram messages she suggested communicating by Snapchat, which would be more private. She agreed that when she sent photos or videos of herself to the applicant on Snapchat she was open to the idea of having sex with him. She said she wanted to meet up before he went back to Sydney. She did not plan for him to come to her house; she had asked him to coffee.

63. [332]

    She said she did not ask the applicant to come to her place; she gave him her address because he asked for it when he was coming to her house. She did not ask him over, she agreed to him coming to her place because she wanted to see him before he went back to Sydney.

64. [333]

    She agreed she distinguished between sexual intercourse, which she defined as penile-vaginal, and oral sex or penetration with a finger.

65. [334]

    She said when the applicant arrived at her place she was not planning or hoping for anything. She agreed that before she became aware of the taxi outside and her mother came to her door, she and the applicant had not touched each other.

66. [335]

    She said when she realised the taxi was there she felt bad because it was obvious the applicant was only there for one reason. She agreed sex was a possibility but she did not think it was going to happen straightaway.

67. [336]

    In cross-examination the complainant said she had told a girl Monique that Jarryd Hayne was coming to her place. She was then shown the messages exchanged between her and Monique Smiles on 30 September.

68. [337]

    She agreed she “linked up” with the applicant despite Ms Smiles’ advice that it would likely be for sex but disagreed she thought it highly likely she would participate in some sort of sexual acts with him. She agreed at 10:18pm on 30 September 2018 (that is, after the applicant had left the house) she sent a message to Ms Smiles "You were right", followed by one which said "I'll snap you. I don't want to write it here".

69. [338]

    She was asked if she sent the following messages by Snapchat to Monique Smiles. She agreed that she said that she (Ms Smiles) was right. She said she possibly said the applicant paid a taxi driver to stay for 20 minutes and the driver kept beeping, but she could not remember her messages to Ms Smiles. She probably said "It was really rushed". She said she possibly said, "He went down on me and that was it". She agreed she said "I feel used and he just left". She said she possibly said "I feel like an idiot."

70. [339]

    She agreed Ms Smiles said "I did tell you this would happen. What do you expect?" and that she replied "You were right".

71. [340]

    The complainant agreed that if they were her messages she did not tell Ms Smiles that the applicant had forced himself on her.

72. [341]

    Monique Smiles gave evidence in the third trial that at the relevant time she had communicated with the complainant for about six months by Instagram, she had not met her personally or spoken to her on the phone and they were not friends. She said they communicated through Instagram once every week or every few weeks. She agreed that she and the complainant shared some fairly intimate details of their lives over the six months they were communicating.

73. [342]

    Ms Smiles confirmed the exchange of messages about the complainant proposing to meet up with the applicant. She said the Snapchat conversation with the complainant at around 10:18pm on 30 September was that the applicant had come over, paid for a taxi driver to stay out the front, it was really rushed, and then he left. She said he went down her. Ms Smiles said she replied to the effect of "What do you expect?" And the complainant responded “You were right”.

74. [343]

    She agreed that the complainant did not tell her anything about any injury or bleeding or that anything happened against her will.

75. [344]

    On 20 November 2018, the day after the applicant was arrested and charged, the complainant had the following exchange of messages with Monique Smiles:

76. [345]

    Monique Smiles said the police did not contact her and she did not contact them because the complainant had said she would give the police her name. Ultimately she contacted the applicant's solicitors.

77. [346]

    Detective Inspector Eugene Stek gave evidence that he did not have the complainant's communications with Monique Smiles in November 2018; he did not become aware of those communications until May 2020. The complainant did not tell him about her exchanges with Ms Smiles on 30 September 2018.

78. [347]

    Detective Stek agreed that some of the messages between the complainant and the applicant had been deleted from her phone before she handed her phone to police in November 2018.

79. [348]

    He said police did not know about the complainant's exchange of messages with Stephen Page on 30 September 2018 until November 2020.

80. [349]

    The complainant's mother gave evidence that on the day of the grand final, Sunday 30 September 2018, or the day before, the complainant told her that the applicant had asked her to a house party in a suburb of Newcastle and the complainant said she was not going. She said on the night of the grand final she was going between her room and the lounge room, and the complainant was in her room. She said she was in the lounge room when she heard a knock on the door and the complainant answered the door. About 20 minutes later she heard a louder knock. She answered the door. A woman at the door said she was the taxi driver and asked if the applicant was there, that he had been 20 minutes. She did not respond. The complainant's bedroom door opened and the applicant came out, and went outside with the taxi driver.

81. [350]

    She said she asked the complainant "What's going on?". The complainant said to her "He wants to karaoke on the laptop. I think he wants to have sex. And there’s no way". Her mother replied, "That's right, no" and she walked back up the hall to her room and the lounge room.

82. [351]

    She said it was near the end of the grand final and the applicant came into the lounge room and stood next to her. She said the grand final had just finished and the applicant called out "Go the Roosters. I'm jealous". Then he walked back down the hall. She did not say anything to the applicant and he did not talk to her. She said he was hyped up and loud and excited. She said she turned off the TV and went to her room. She said the complainant knocked on her bedroom door and said "He's gone, he’s left, he had a nosebleed."

83. [352]

    She said the next day the complainant came to her upset and showed her photographs on her phone of the injuries to her genitalia. She said the complainant said the applicant had been quite forceful, persistent and overpowering, he pulled her pants down and she thought he had bitten her. The complainant told her she had not wanted to do anything, she said no, then the applicant got up and washed himself and left.

84. [353]

    She said the complainant told her she had sent a message to the applicant saying that she had not wanted to do that, that she had said no, and that she was hurt physically and he responded "Go see a doctor".

85. [354]

    The complainant's sister gave evidence that the complainant told her on 30 October 2018 by FaceTime (video) call that the applicant had come over to her house and he wanted her to go to a party and she did not want to go to the party and he was “a bit of an arsehole” and he had a taxi waiting the whole time and she said that he tried to go down on her and she said "Stop" and "No". She said the complainant said she ended up bleeding, and after the call she sent her sister some images.

86. [355]

    She confirmed the exchange of messages set out above at [317].

87. [356]

    The complainant’s sister said she told her husband what the complainant had told her.

88. [357]

    The complainant’s sister's husband gave evidence that he was told by his wife of the complainant's allegations, about a month after the grand final. He spoke to the complainant later that day. He told her he had spoken to a journalist and to the NRL Integrity [Unit]. He then met with Karen Murphy from the NRL Integrity [Unit] and the complainant.

89. [358]

    Helen Morel, taxi driver, gave evidence that on 30 September 2018 she picked up the applicant about 9:00pm, negotiated a price of $550 to drive him to Sydney and he paid the agreed price when he got into the taxi. He told her he needed to stop at a house to pick up a bag. He was on his phone and he was drinking mixed drinks.

90. [359]

    She said they stopped at the house he pointed out. He said he would be back in a few minutes. She said he needed to be quick. After the applicant got out of the taxi Ms Morel sent a message to a colleague at 9:07pm. She saw the applicant go into the house he had pointed out.

91. [360]

    After about 20 minutes she went and knocked on the door. A middle-aged woman answered the door. Ms Morel asked the woman if the applicant was ready to go. A few minutes later, the applicant came out and lent through the car window and said he would be a few more minutes because his bag had not arrived.

92. [361]

    She said she did not remember beeping her horn while she was waiting.

93. [362]

    She was not sure how long after that she waited for him, although she had a phone call with her colleague at 9:41pm which lasted about five minutes.

94. [363]

    As previously noted, it was an agreed fact in the trial that the applicant left the complainant's address in the taxi at around 9:53pm.

95. [364]

    Hailey Martin (formerly Hartley) gave evidence that as at 2018 she had been friends with the complainant for about 10 years. In 2018 she thought they were best friends. They spoke every day and saw each other almost every day.

96. [365]

    She said before the grand final weekend of 29-30 September 2018 the complainant had mentioned that she was speaking to the applicant but Ms Hartley did not know how often they were speaking or the nature or content of their messaging.

97. [366]

    On 30 September 2018 after 10:00pm she heard from the complainant. She was taken through the messages of that night between her and the complainant, set out above at [309]. She accompanied the complainant to the doctor on Wednesday 30 October.

98. [367]

    The evidence of Dr Susanna Smart from a previous trial was read to the jury in this trial.

99. [368]

    She said she was a GP and the complainant had been her patient since May 2016. She referred to her notes of the consultation of 3 October 2018. She said her practice was to make notes as the patient told her things. She said she did not take verbatim notes; she tried to record what she considered salient points.

100. [369]

     She said there was a later consultation with the complainant on 2 November 2018. She said the complainant had told her that her sister and brother-in-law had been in contact with someone from the NRL. Dr Smart thought the situation was getting serious. She wanted to ensure that everything in her notes from the first consultation was correct. She said she and the complainant went back to the notes and went through them. The complainant corrected her on two notes - that she did not have an upstairs in her house, and she also said she was pressured into oral sex, not just sex. The complainant told her she said no to oral sex.

101. [370]

     Dr Smart said on 3 October she examined the complainant's genitals, when she complained of an injury there. Her note and evidence of what she observed were: purplish bruising, about 1.5cm in diameter, on the right inner labia; within that there was a small raised lump or flap of tissue and there was an abrasion or some superficial damage to the mucosa (moist inner lining) of the inner labia and some redness.

102. [371]

     In cross-examination she agreed she tried to take an accurate history. She agreed that in her original notes, there was nothing about the complainant saying she said no to oral sex. She said the handwritten amendments on her notes were not made in her presence in the surgery during the consultation of 2 November. She agreed the injuries she observed were consistent with rough sexual activity.

103. [372]

     The notes are signed by the complainant and dated 7 November 2018. Detective Stek gave evidence that the police spoke with the complainant that day, but the police had no role in the complainant's amendment of Dr Smart's notes.

104. [373]

     Dr Maria Nittis gave evidence that on 12 November 2018, she examined the complainant at the request of police. Police gave her 10 photographs the complainant had taken of her injuries, and she also had Dr Smart's consultation notes from 3 October 2018. She focused in her examination on the injury to the genitalia of which the complainant was complaining.

105. [374]

     Dr Nittis read out the history she took from the complainant which is as follows.

106. [375]

     Dr Nittis said on examination she noticed a mucosal tag on the inner upper right labia minora and a defect in the mucosa below that. From the photographs she said the complainant had two areas of laceration, one to the inner aspect of the right labia minora and one to the posterior fourchette. She said a laceration is caused because the skin or mucosa tears from stretching or being crushed. She said the posterior fourchette injury (where the vaginal lips meet closest to the anus) was a stretch laceration. She said it was a fairly minor small split, a very common injury to see both after consensual and non-consensual intercourse. She said the laceration to the upper inner right labia minora was a type of crush laceration, an extensive laceration. She considered that injury was caused by penetration by a finger, fingers, hand, object, penis, fingernails or sharp object such as a ring. She said the injury was not caused by licking or sucking of the genitalia; it could be caused by digital penetration or biting. She said the extent of the injury in terms of the area it occupied was unusual in her experience. She agreed that it was measured in millimetres.

107. [376]

     During the investigation police recorded some telephone calls between the applicant and other people.

108. [377]

     After the applicant received a phone message from a person from the NRL Integrity Unit, he had the following phone conversations on 15 and 16 November 2018.

109. [378]

     There was another conversation between the applicant and another man.

110. [379]

     In another conversation, the applicant said the following:

Accused’s evidence

1. [380]

   The audio recording of the accused’s evidence in a previous trial was played to the jury in this third trial. The trial judge directed the jury that there was no video taken, that there was only an audio recording of the accused’s evidence, whereas they had seen the video recording of the complainant's evidence, which the jury might think was an imbalance. Therefore the trial judge directed the jury that to "alleviate this imbalance" when they were assessing the evidence they must not take into account any perception they might have about the demeanour of the accused in order to reject his version and any difficulty they might have, or any doubt which arose in their minds, any reasonable doubt, must go to the benefit of the accused. The trial judge warned the jury to "guard against allowing that imbalance to work an injustice in relation to precluding you from giving full and appropriate weight to the account provided by the accused".

2. [381]

   The accused’s evidence, in summary, was as follows. He said he first met the complainant on the evening of 30 September 2018. He had first messaged her in 2014, wishing her good luck in a modelling contest for "The Face of Origin", related to the State of Origin football competition. He said he had no further contact with or from the complainant until the messages began ("You are absolutely gorgeous x"), as set out above at [254]-[255]. He said he thought the complainant was just flirting with him in the messages. He said when the complainant sent the message "I imagined what it would be like to be fucking you", he had not spoken to her at that time. He said he thought the complainant was keen and upfront in sending that message. He said it was "a bit full on" straightaway, so it was a bit awkward for him. He said she was “pretty straight to the point”.

3. [382]

   He said thereafter they were speaking on Snapchat, texting, sending selfies. He said the complainant sent nude and lingerie selfies. He said he knew the complainant was keen to meet up or link up. He said between those messages and when he went to Newcastle they were in touch pretty regularly, every day or every second day.

4. [383]

   He said on 29 September 2018 he went to Newcastle. He described the “bucks” activities. He thought by the Saturday night he had told the complainant that he was in Newcastle. His telephone records showed that he called the complainant on Saturday night, but he could not recall the call or conversation. The call was shown to have lasted for one minute and 33 seconds.

5. [384]

   Thereafter the complainant sent the message "Babe will you be here tomorrow night?" and the applicant replied that he was going back tomorrow. There was the exchange of messages set out at [260], which ended with the complainant suggesting “Coffee in the morning?”. The accused said in his evidence he thought it was pretty clear that the complainant wanted to meet up. He said he thought if he got the chance he would meet up with her. He said he was out on Saturday night and heavily intoxicated but functioning fine. Then the “bucks” party continued.

6. [385]

   He said the next day he was communicating with the complainant by Snapchat as well as the messages in evidence and was explaining he was going back to Sydney. The "bucks" activities continued on Sunday. He said by the time the grand final started he was "pretty intoxicated", around a 5 or 6 on a scale of 0-10. He said he knew what he was doing and he was not slurring his words. He said when the grand final started he was still drinking but he was also planning to go back to Sydney so he was drinking water as well as alcohol. His plan to go back to Sydney was by taxi or Uber. His phone records showed he called the complainant at 7:31pm on Sunday night. He said he recalled talking to her at that time. He said he was going back to Sydney, asked where she lived, and if she was on the way to the freeway, he would “pop in” on the way. He said she sent a message with her address and he realised it was on the way.

7. [386]

   He said when the taxi arrived he got in the taxi and paid the fare by credit card. He said on the way to the complainant's house he called her to say he was coming over.

8. [387]

   When asked what he intended to do at the complainant's place when he got into the taxi, he said:

9. [388]

   He said in the phone call in the taxi the complainant had said her mother would be answering the door. When he got to the house and knocked on the door her mother answered the door and gestured to where the complainant's room was. He said he walked into the complainant's room and she was on the bed, lying stomach down, on her phone or laptop. He got on to the bed, said hello. He was lying towards her head, on a diagonal angle, said hello and tried to get "a bit of small talk conversation going”. He said he could feel she was nervous. He said he felt awkward. He felt that she was nervous about him seeing her eye for the first time. He said he tried to get a flow of conversation going but nothing happened so he saw her laptop and asked if he could play a couple of songs to try to break the ice. He said the whole setup was "kind of strange", that they had been "speaking, flirting”, and that when the mother answered the door it caught him off guard and when he got there it wasn't the person that he was speaking to. It was a bit strange; he thought she was nervous.

10. [389]

    He said he played two or three of his "go to songs" to break the ice.

11. [390]

    He said the complainant’s trousers were firm fit skinny jeans.

12. [391]

    He said the complainant got up and looked through the blinds and asked if that was his taxi. He said yes. He thought in his head "You knew I was going to Sydney, like, why – like, what's the confusion?".

13. [392]

    He said the complainant said something along the lines of “Did you think you were just gonna come have sex with me or something like that?". He said his response was along the lines of "It's up to you really, you know, whatever". He said he thought then the taxi driver came knocking on the door looking for him and the complainant's mother knocked on her door. He walked outside to the taxi driver and told her it was going to be another 10 or 15 minutes, someone was going to drop his bag off. The driver said something along the lines of “Just hurry up”.

14. [393]

    He went back into the house, back into the complainant’s room and lay on the bed again. He said he tried to talk but it was awkward, there was no real chat like they had been talking on the phone. He took his phone out to check the score of the grand final. He realised the Roosters were winning and it was getting to the end of the game. He tried to get the game on his phone but could not, then he tried to get the game on the complainant's laptop but could not do that either. He then asked the complainant was her mother watching the game and she said yes. So he went out to the lounge and watched the end of the game. The complainant's mother was on the lounge. He watched the last minute or so, maybe less, of the end of the game. He remembered the Roosters winning. He agreed he said “Go Roosters” and that he was jealous.

15. [394]

    He said while he was in the lounge room watching the end of the game the complainant stayed in her room the whole time. Then he walked back to the room. He knew he had to go soon. When he went back into the room the complainant was lying on the bed and he lay next to her. She was right next to him, lying down. He said he attempted to kiss her. When asked why, he said "I just did". He said she kissed him back. He said if she kissed him back he did not have a doubt that she wanted to kiss him. He said the kissing went for about 30 seconds. He might have caressed her face. He said they continued kissing for a bit and then he put his hand near her vagina on the outside of her pants. He felt she would like that because of the flirting before and he felt in the moment it was fine. He said when he touched her on the outside of her trousers she kept kissing, he was touching her and she was fine. Then he grabbed her hand and put it near his penis. Then she rubbed his penis. He continued to rub her vagina. Then he tried to put his hands down her pants, into the top of her trousers. He said they were high enough that he could not get his hands down. He said her pants were tight enough for him not to get his hand down them.

16. [395]

    He said then he put his hand on the right side of her jeans and tugged them and the complainant grabbed on the left side of her jeans and they both tried to take her pants off. They were both tugging the pants down. Then the complainant wriggled to the end of the bed and hopped to get her pants off and did get them off. He was still on the bed. The trousers were completely off. Then the complainant came and lay next to him on the bed again. He thought he touched her vagina again and then she told him about how to unclip the top she had on, which clipped near her vagina. Then she unclipped it, then she lay there. He said he thought they started kissing and he put his finger inside her vagina. He said he put his finger in the complainant’s vagina because she had taken her pants off and lay down next to him, and he felt that was the next step. He said he knew she did not want to have sex, so he thought he would "just please her and that was it". He said she did not react, respond or say anything about it. He put the middle finger of his right hand inside her vagina and moved it in and out, over about 20-30 seconds. He said it was hard to estimate time. He said he and the complainant were "just kind of kissing". He said the complainant did not say "Don't" or "Stop". He said then the complainant was "a bit dry" so he decided to "go down on her". He thought she would like it and he felt like doing it. He said he licked the complainant’s vagina for again 20-30 seconds or maybe longer. He said she was “breathing heavy” and “she was fine”.

17. [396]

    He said he felt a sense of a different liquid hit his lip and it was like a shock and he jumped up. He did not know what was it. He looked at his hand when he jumped up and there was blood. The complainant had not said anything before that about how she was feeling. He said they were both in shock. The complainant said it was not her period. He went to the bathroom. He was in shock because "You never expect to have blood on your face going down on a girl”. He said he was trying to clean himself up; it was on his lip and he had a beard.

18. [397]

    He said he did not intend to hurt the complainant, he did not think anything he was doing was going to hurt her, he did not think it might hurt her.

19. [398]

    He said after he cleaned himself up the complainant was a bit rattled and he said "Look, it's okay. So, obviously it’s just my finger… that it's just cut you obviously in your vagina… you – like – it will be fine”. He repeated that it was obviously just his finger and she would be fine because she was a bit "frazzled".

20. [399]

    He said after he cleaned his face he walked out and she walked into the shower. He said he was a bit rattled at that stage.

21. [400]

    He said the complainant had not expressed any pain until she got into the shower, and when the shower was turned on that was the first sign that she experienced pain. She said it was stinging or hurting. He said the complainant had a shower and when she got out of the shower she stood there and looked at him and said "It hurts" and he said she would be fine, to go see her doctor tomorrow if it kept hurting, and reiterated that. He said the complainant dried herself and he thought she got dressed. He just reassured her that if it was still sore tomorrow, to see a doctor. He said there was nothing else he could say. He kept reiterating it was an accident and his finger had done it and he was apologetic.

22. [401]

    He said he did not bite the complainant.

23. [402]

    He said after the complainant came out of the shower he stayed to make sure the message got across as to how the injury occurred and that he felt he had to go, but he did not want to just walk out, so he waited until she was comfortable. She walked around and he was waiting for her to talk or chat and he said he had to go. He said he left, got in the cab and they proceeded towards Sydney.

24. [403]

    As they were driving towards Sydney when he was in the cab he saw the complainant had sent him a message. He was shown the messages, the first one being "I'm hurting so much" and the second:

25. [404]

    He said when he received that second message he felt like he had exhausted everything, explained to her what had happened, explained it was an accident, explained to her that if it kept hurting go and see a doctor tomorrow, and when he saw that message he did not know what to reply. So he sent the reply "Go doctor tomorrow".

26. [405]

    He said on the Tuesday the complainant sent him a Snapchat of her in a park saying "Why do I feel weird in a park?” Or maybe it was "scared”. He did not respond to it. He did not really understand it.

27. [406]

    The accused was then taken to the message from the complainant on the evening of 14 November "I thought you would have at least asked whether I'm okay or not by now". He agreed he responded on 15 November 2018 although he did not recall writing it at the time he gave evidence on 27 November 2020.

28. [407]

    He said the complainant did not ever tell him to stop the sexual acts he was performing on her.

29. [408]

    He said the message he sent "Wtf are you on about!!! I stopped starught it away and made sure you were okay…" was accurate about him stopping straightaway and making sure she was okay.

30. [409]

    He said the response he sent to her message " That's completely untrue! Everything we did you consented to" was the case.

31. [410]

    In cross-examination he agreed that before he went to the complainant's place, he accepted that the whole issue of consent to sexual activity was still up in the air, that the complainant had not given him any consent to come around for purely sexual activity at that point. He said if the complainant had said no about sexual activity he would have respected that.

32. [411]

    He agreed that the exchange of messages with the complainant did not mean she was going to have sex with him, did not amount to consent on the night. He said if the complainant had told him no, he would have known she was not consenting and he would have respected that. He agreed that even if she did consent to some sexual activity the complainant was entitled to withdraw that consent at any point, and once he realised she had withdrawn consent, he would have had to stop, and he would have stopped.

33. [412]

    He agreed that when the complainant asked about the taxi and did he expect he was going to come there and have sex with her, he said something along the lines of it was up to her, meaning if she had indicated she was not consenting he would not have engaged in any sexual activity. He agreed the complainant said she did not want to have sex, so he thought he would "just please her and that was it".

34. [413]

    He said when he arrived and went into the complainant's bedroom he did not take that as an indication that she was going to consent to sexual activity. He said he was still a bit rattled that her mother answered the door, so he was not even thinking about that.

35. [414]

    He maintained that the complainant did not say “No” or “Stop”, which he would have understood indicated she was not consenting.

36. [415]

    He agreed he went there potentially to have sex with the complainant; "More of a fling, really".

37. [416]

    He agreed the complainant was upset when she found out about the taxi waiting outside. He said when he gave evidence that he knew the complainant did not want to have sex with him, he distinguished between penile-vaginal sex and everything else.

38. [417]

    He again denied that the complainant said “No” and “Stop”. He denied he forcibly removed her pants by pulling them straight off. He said he thought the complainant was more upset that he was leaving and going to Sydney.

Applicant’s submissions

1. [418]

   The applicant submitted that the complainant sought to curate the narrative in a number of ways. The first was by removing from the narrative her communications with Monique Smiles, to whom she did not make any complaint about the applicant having forced himself on her. The applicant submitted the complainant did not tell the police about her communications with Ms Smiles and she deleted the messages between her and Ms Smiles from her phone before she gave her phone to police, and the first police knew about Ms Smiles was in 2020 during the applicant's first trial. The applicant referred to the complainant having told Ms Smiles that she had spoken to police and she did not need to give police her name, and submitted that was untrue.

2. [419]

   The applicant submitted the complainant did not mention Ms Smiles during her evidence in chief when asked whom she had informed about the incident with the applicant.

3. [420]

   The next aspect relied on as the complainant’s "curation" of the narrative was that she deleted a number of messages between herself and the applicant from her phone before she gave her phone to police, being messages exchanged before their meeting which showed her sexual interest in him. The applicant relied on the complainant not volunteering or disclosing to police messages about her interest in the applicant exchanged between herself and Monique Smiles, and herself and Stephen Page, on 30 September 2018.

4. [421]

   The third aspect relied on as the complainant's "curation" of evidence was the complainant having amended Dr Smart’s contemporaneous note of the consultation on 3 October 2018 by handwriting on 7 November 2018, that is after the second consultation with Dr Smart on 2 November 2018. The applicant submitted the complainant amended Dr Smart’s note to support her allegation.

5. [422]

   The applicant submitted that the complainant was demonstrated to be emotionally changeable. The applicant submitted the complainant's communications with Stephen Page on 30 September 2018 demonstrated her emotional changeability, from calling him names then asking if he was coming to her house. The applicant submitted the complainant's changeability of mood was also demonstrated in her exchange of messages with Monique Smiles about potentially meeting with the applicant on 30 September 2018. The applicant submitted that those demonstrations of the complainant's ability to change her mind from one extreme to another, within a short time, were capable of explaining how the complainant changed from being angry about the taxi waiting to participating in kissing the applicant when he returned and agreeing to participate in sexual activity with the applicant of the kind which occurred.

6. [423]

   The applicant submitted that the complainant’s version of events did not account for the 27 minutes after the grand final finished at 9:26pm until the applicant left her house at 9:53pm, whereas he submitted that the applicant's evidence was consistent with that timeframe.

7. [424]

   The applicant submitted that the complainant’s evidence was that the applicant returned from the taxi, went to the lounge room briefly to see the end of the grand final, then came into her bedroom, the digital and oral sex lasted about 30 seconds, then the applicant went into the ensuite bathroom to clean himself up, the complainant showered, then after a short conversation in the bedroom the applicant said he had to go and left. The applicant's counsel submitted his version of events was that after speaking with the taxi driver he went back to the complainant’s room, things were awkward, he checked his phone for the score, then the complainant's laptop, then went to the lounge room and watched the last few minutes of the game. Then he went back to the complainant’s room, lay on the bed, kissed her, and the sexual activity occurred as he described. He then jumped up and washed his face, the complainant showered, they spoke and he left.

8. [425]

   Counsel submitted that the applicant's version of events was consistent with the 27 minute timeframe and that the timing evidence raises a reasonable doubt about the credibility of the complainant's evidence and supports the reasonable possibility of the truth of the applicant's evidence.

9. [426]

   The applicant submitted that the complainant's complaints or lack of complaints created doubt that non-consensual sexual intercourse occurred.

10. [427]

    The applicant submitted that the complainant did not complain to her mother, that her first account to her mother was that the applicant had had a nose bleed. The next day she told her mother, according to her mother's evidence, that the applicant had been quite forceful and persistent and that he had pulled her pants down and she thought he had bitten her.

11. [428]

    The applicant submitted the complainant did not make any complaint to Monique Smiles that the applicant had forced himself on her.

12. [429]

    The applicant submitted the complainant did not make a complaint to the applicant in her message to him at 10:39pm which included "I thought you would have at least stayed", which the applicant submitted was inconsistent with her allegations.

13. [430]

    The applicant submitted that the complainant’s account to Hailey Hartley was ambiguous: "I was sort of scared and unsure and I wanted to but I also didn't”. The applicant submitted that this was different from her account of the applicant acting with force and aggression and was not consistent with an obvious demonstration of refusal of consent.

14. [431]

    The applicant submitted the complainant's complaint to Dr Smart on 3 October 2018 was that the applicant tried to kiss her, pressured her for oral sex, she said no to sex, while he was performing oral sex she had a lot of pain and she asked him to stop. The applicant referred to the complainant later amending the notes to include that she said no to oral sex.

15. [432]

    The applicant referred to the complainant's complaint to her sister, that when the sister said that what had occurred was rape, the complainant replied "No it's not".

16. [433]

    The applicant submitted that the totality of the complainant’s complaints create a doubt about whether the sexual activity which occurred was non-consensual or a short regrettable episode which ended when the complainant’s vagina bled and the applicant left for Sydney.

17. [434]

    The applicant's counsel submitted that ground 1 does not turn on whether the applicant's evidence gives rise to a reasonable doubt about the complainant's account, but that the applicant's account should be considered by the Court, in deciding whether the Court can accept the complainant's account beyond reasonable doubt. Counsel submitted that the applicant's evidence was consistent with what he said about the incident afterwards and he made appropriate concessions.

18. [435]

    Counsel submitted that the Court should have a reasonable doubt about the complainant's account and acquit the applicant. Counsel submitted the complainant’s evidence lacked credibility for reasons which are not explained by the manner in which it was given, such that a reasonable doubt experienced by this Court is a doubt which the jury should have had.

19. [436]

    Counsel relied on the test in M v The Queen (1994) 181 CLR 487; [1994] HCA 63.

20. [437]

    Counsel referred the High Court's decision in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]:

21. [438]

    Counsel submitted the "assumption" referred to by the Court in that paragraph is not a presumption.

Crown’s submissions

1. [439]

   The Crown submitted that the complainant gave a very consistent account, that she was straightforward and open about her attraction to the applicant but was clear that there was no plan for sex. The Crown submitted that in the complainant's account, the pivotal moment for her was realising the taxi was outside and from that moment there was no consent to sex, and she expressed that to her mother while the applicant was outside talking to the taxi driver, and made it known to the applicant, who persisted and only stopped because the complainant was bleeding.

2. [440]

   The Crown submitted that the applicant gave evidence that he was aware after he spoke to the taxi driver that the complainant was upset and did not consent to sex. The Crown submitted that the applicant's description in his evidence of the sexual activity did not explain the complainant's injuries.

3. [441]

   The Crown submitted that there is considerable evidence of complaint from persons close to the complainant to whom she might be expected to complain, and to Dr Nittis, and the complaints are consistent, especially as to roughness, her saying no and the taxi.

4. [442]

   The Crown submitted that the complainant's complaint to the applicant afterwards was also consistent: “I didn't want to do that, after knowing the taxi was waiting".

5. [443]

   The Crown submitted that the complainant gave an explanation of her mother's panic attacks for why she did not complain to her mother on the night, but she told her mother the next day what had happened.

6. [444]

   The Crown submitted that in her unambiguous complaint to Hailey Hartley, her best friend, the complainant maintained she did not consent to any of the sexual activity which happened.

7. [445]

   The Crown submitted that when the complainant told her sister what had happened she was observed to be upset and she said she had said “No” and “Stop”. The Crown submitted that the complainant's denial of rape to her sister was consistent with her view that rape required penile-vaginal intercourse.

8. [446]

   The Crown submitted it was well open to the jury to regard the timing and content of the complaints as very supportive of the complainant's reliability and honesty.

9. [447]

   The Crown submitted in respect of the amendment to Dr Smart's notes that it was not that the complainant took the initiative as to Dr Smart revisiting her notes, but rather that Dr Smart wanted to check that her notes were correct because she felt the situation was becoming serious, a complaint having been made. The Crown submitted it was not a revisionist attempt by the complainant to change what she had told the doctor, or the complainant curating the evidence.

10. [448]

    The Crown submitted that the original typed note of the complainant's complaint to Dr Smart gives significant support to the credibility of the complainant’s account of a non-consensual encounter, and the handwritten addition in respect of oral sex was simply the complainant making clear that she did not consent to oral sex.

11. [449]

    The Crown submitted that the lack of complaint to Monique Smiles was explicable, having regard to the nature of their acquaintanceship.

12. [450]

    The Crown submitted that the applicant's submission that the complainant sought to remove Monique Smiles from the narrative should not be accepted, as the complainant volunteered Monique Smiles’ name in cross-examination as a person she had told the applicant was coming over to her place.

13. [451]

    As to the assertion of the complainant deleting messages, the Crown relied on Snapchat messages not lasting and submitted that the complainant’s evidence that she deleted messages all the time, which was not challenged further by the applicant's trial counsel, should be accepted.

14. [452]

    The Crown submitted that the applicant's submission that the complainant’s evidence left unaccounted for minutes in the timeframe between the end of the grand final and the applicant leaving does not withstand scrutiny when regard is had to the events recounted in the complainant's evidence at that time. The Crown submitted that the complainant's account of times which actions took is a peripheral matter which complainants sometimes do not remember, but that she recalled specific details of the assaults. The Crown submitted that the times in the complainant's account should not lead to an assessment that her credibility was undermined.

15. [453]

    The Crown submitted that the complainant's texts to Stephen Page and Monique Smiles did not demonstrate general emotional changeability about the complainant, as the applicant had submitted.

16. [454]

    The Crown submitted that the applicant's evidence in the trial was inconsistent and implausible. The Crown submitted that the applicant’s awareness and acceptance that the complainant did not want to have sex with him is not easily irreconcilable with his trying to "hook up with her”, commencing by kissing her.

17. [455]

    The Crown submitted that the jury had the advantage, given the credibility issues, and that both the complainant and applicant gave evidence. The Crown submitted that this Court must not disregard or discount that the jury is the body entrusted with the primary responsibility of determining guilt and had the benefit of seeing and hearing the witnesses.

18. [456]

    Therefore, the Crown submitted that there is no significant possibility that an innocent person has been convicted, and the appeal should be dismissed.

Consideration

1. [457]

   The charges before the Court required the Crown to prove beyond reasonable doubt two acts of sexual intercourse (which were not disputed), that the complainant did not consent to either act, of which she gave evidence, and that the applicant knew that she was not consenting to each act of sexual intercourse at the time it occurred. Proof of the last element required the jury to accept the complainant's evidence that she said "No" and “Stop" to the applicant when he was performing the relevant acts.

2. [458]

   The task of this Court is to make an independent assessment of the sufficiency and quality of the evidence adduced at the trial, however, making allowance for the advantage enjoyed by the jury in seeing and hearing the witnesses, as stated by the High Court in M v The Queen (at 493-5):

3. [459]

   The test formulated in M v The Queen has been affirmed in subsequent decisions of the High Court, to which further reference is not required in the circumstances of this case.

4. [460]

   As the Crown case rested heavily on the evidence of the complainant, although the Crown relied on complaint evidence to support her evidence, the focus of this Court in its independent assessment of the sufficiency and quality of the evidence must focus on the complainant's evidence.

5. [461]

   As the applicant submitted, the complainant's account of events after the applicant returned to the house from speaking to the taxi driver, does not appear to account for the timeframe between the agreed time of the football match ending and the agreed approximate time of the applicant departing the house in the taxi. However, that is a small point and not sufficient to undermine the complainant's credibility.

6. [462]

   The complainant made no complaints to her mother, who was in the house at the time of the asserted assaults. Her explanation for not calling out to her mother was her mother's mental health or anxiety. That explanation can be accepted but it is not entirely convincing that the complainant did not raise the alarm with her mother, who was in the house and not too far away, especially since on their evidence they had discussed that the complainant would not agree to sex with the applicant when he was outside talking to the taxi driver. That is one factor which impacts adversely on the credibility of the complainant's evidence.

7. [463]

   The complainant made no complaint to her mother after the applicant had left the house. Instead, she told her mother that the applicant had suffered a nosebleed. She said this was to explain the appearance of blood on the bedclothes and towels in her room. Again, her explanation was that she did not wish to cause her mother anxiety. Again, it is an explanation which can be accepted but again, is not entirely convincing. On the evidence the relationship between the complainant and her mother seemed close; indeed, the complainant was living with her mother who had rented new premises to look after her daughter while she was recuperating from an illness.

8. [464]

   The complainant said she complained to her mother the next day. Her mother’s evidence of that complaint included that the complainant had said that she had said no to the applicant at the time of the sexual acts.

9. [465]

   The injuries the complainant suffered do not indicate anything about whether the acts occurred with consent or without consent.

10. [466]

    The complainant's messages to the applicant after he left the house were “I'm hurting so much” (10:11pm), and:

11. [467]

    It was the position of both the complainant and applicant that when they referred to sex they meant penile-vaginal intercourse and it was the agreed position of both of them that after the complainant became aware that the applicant had a taxi waiting outside that she did not consent to penile-vaginal intercourse. The complainant’s messages to the applicant are not an unequivocal allegation of having been sexually assaulted in the way charged. The reference to hurting appears to be a reference to a physical injury she suffered, although could be construed more broadly. "I didn't want to do that" may be a reference to sexual intercourse or sexual activity more broadly. The comment "I thought you would have at least stayed" appears to be a reference to the applicant leaving soon after the complainant's injury became apparent and her unhappiness that he left so soon. This is not strong evidence of complaint or accusation of the offences charged.

12. [468]

    At 10:15pm the complainant sent a text to her friend Hailey, but Hailey did not immediately respond, so the complainant's first complaint was to Monique Smiles, in terms "You were right". Then the evidence was that in Snapchat messages, the complainant told Ms Smiles that the applicant had come over, paid for a taxi driver to stay out the front, it was really rushed and then he left, and he went down on her. The evidence was that Monique Smiles said "What did you expect?" and the complainant responded “You were right". That is not in its terms a complaint of sexual assault. It appears to be a rueful agreement that, as Monique Smiles had warned the complainant in their communications during that day when discussing the applicant, that he would only be coming to see the complainant for sex and she would feel bad. That is in substance what the complainant said to Monique Smiles on that night. The complainant’s explanation that she was not close enough to Monique Smiles to tell her that she had been sexually assaulted by the applicant is not convincing, given the personal tone of their communications earlier on that day about the applicant and the complainant’s interest in him.

13. [469]

    Her not disclosing Ms Smiles and their communications to the police, when her account to her was not consistent with her allegations, is a matter which seriously adversely affects the complainant's credibility. Her statement to Ms Smiles that she had spoken to police and did not need to tell police Ms Smiles’ name was at least misleading, because the evidence from the police was that they had not been told of Ms Smiles and were not aware of her until the applicant's first trial in 2020.

14. [470]

    The complainant's complaint to Hailey Hartley contains some elements of the complainant having said "No" and that she “didn't want to”, but there are also equivocal elements. Certainly she expresses concern to Ms Hartley about the injury. Then she says:

15. [471]

    That casts some doubt on whether the Crown has established beyond reasonable doubt that the applicant knew the complainant was not consenting to the acts of sexual intercourse.

16. [472]

    The complainant's complaint to Dr Smart on 3 October, as initially recorded by Dr Smart, is not inconsistent with the applicant's account, as both the applicant and complainant defined sex as penile-vaginal intercourse and the history as recorded by the doctor included that the complainant said no to sex.

17. [473]

    It is accurate that the doctor asked to check the notes when she became aware of a complaint having been made, to at least the NRL, but for the complainant to take the doctor's notes away and make handwritten amendments on them some days later on her own is very unusual. The complainant’s handwritten addition to the doctor’s notes that she also said no to oral sex can be construed as her adding something she told the doctor and the doctor did not record, or adding something she forgot to tell the doctor but maintained was her account, or adding something to make the doctor’s record consistent with her allegations. The latter construction is quite adverse to the complainant's credibility. There is no reason why it is not an acceptable construction, particularly in combination with the lack of complaint to some people immediately after the alleged offences and the lack of disclosure of Ms Smiles and their communications to the police.

18. [474]

    The complaint to the complainant’s sister is consistent with her allegations, but it was made a month after the event and in the circumstances of this case does not provide strong support for the complainant's evidence.

19. [475]

    The history given by the complainant to Dr Nittis on 12 November, about six weeks after the 30th of September, again is consistent with the allegation the complainant had made by then, but given the timelapse does not have the strength of an immediate complaint in those terms.

20. [476]

    The applicant’s candid account of what happened in his intercepted phone calls is acceptable and not implausible.

21. [477]

    The applicant’s evidence was consistent, not implausible, he was frank and candid about his desire to have sexual intercourse with the complainant if the circumstances arose, and he credibly maintained his account in cross-examination. There is no reason why his evidence should not be accepted as a reasonably possible version of events.

22. [478]

    The matters I have referred to above about the complainant's evidence are significantly adverse to the honesty and reliability of her evidence. It is clear the complainant was upset about the taxi waiting outside. It is clear she did not agree to having penile-vaginal intercourse with the applicant once she knew the taxi was waiting for him. It is clear the complainant was upset about her injuries.

23. [479]

    It is not clear, to the requisite standard, that she did not consent to the two sexual acts which occurred, or, if she did not, that the applicant knew that. On my own assessment of the quality and sufficiency of the evidence I have a reasonable doubt that the applicant committed the offences charged. I am not of the view that the advantage enjoyed by the jury in seeing and hearing the complainant give evidence was capable of resolving that doubt. I am of the view there is a significant possibility that an innocent person has been convicted. Therefore, I am of the view that the verdicts of guilty are unreasonable.

24. [480]

    I would uphold ground 1 and would propose verdicts of acquittal on counts 1 and 2. However, having read the judgments of Meagher JA and Rothman J, I am aware that my view about ground 1 is a minority view.

Grounds 2 and 3

1. [481]

   In relation to grounds 2 and 3, I have had the benefit of reading in draft the judgments of Meagher JA and Rothman J. I gratefully acknowledge, and will not repeat, their Honours’ exposition of the factual and legal background to those grounds.

2. [482]

   I am of the view that the trial judge erred in not giving leave for the complainant to give further evidence in the third trial, to be cross-examined about her communications with Monique Smiles, on 30 September 2018, in November 2018 and on 29 November 2021, and her views conveyed that same day about Stephen Page ("If those messages get out I’m fucked and he will get off"). Those matters were significant to the credibility of the complainant, which was the critical issue in the trial. The evidence of the complainant's not disclosing to police or the Crown her communications with Monique Smiles in September 2018 and November 2018, and her views expressed on 29 November 2021 about Ms Smiles’s evidence and the messages with Mr Page, had the capacity to demonstrate consciousness by the complainant that the evidence of her communications with those witnesses did not support her account of the events the subject of the charges.

3. [483]

   The complainant had indicated that she chose to give further evidence.

4. [484]

   It was not appropriate for the trial judge to anticipate how the complainant would answer further questioning by trial counsel for the applicant as a basis to refuse the application or decide that it was not necessary in the interests of justice to give leave to the complainant to give further evidence. The trial judge's assumption of how the complainant would answer the questions sought to be asked could not be a factor in his determination of the application. It was for the jury to have the opportunity to see how the complainant answered the questions asked, assess her answers and the way she gave them, and decide if they accepted her answers. Nor was it appropriate for the trial judge to take into account his view of the complainant's reactions on the day of the hearing of the first appeal in this Court in refusing the application.

5. [485]

   It is not clear why, when the complainant was willing to give further evidence, and the trial judge permitted her to be cross-examined about the civil claim she had commenced against the applicant, his Honour did not permit her to be cross-examined on the topics which were potentially as significant, if not more significant, to the credibility of her evidence.

6. [486]

   It was necessary in the interests of justice that the trial judge give leave for the complainant to give the evidence in the proceedings, to be cross-examined on those subjects, to permit the then accused to fairly and fully present his case to the jury about the credibility of the complainant's allegations and evidence.

7. [487]

   Further, the way the trial developed on the topic of the complainant's dealings with Ms Smiles gave rise to a miscarriage of justice. When the trial judge was considering the application by trial counsel for the applicant to further cross-examine the complainant, the Crown Prosecutor said to his Honour that if what was sought to be put to the complainant was that she deliberately concealed Ms Smiles because she understood that their communications did not support her version, it would be open for that proposition to be put to the jury without the proposition being put to the complainant.

8. [488]

   In her closing address to the jury trial counsel for the then accused made submissions about the complainant having curated the evidence to support herself, crafted evidence, made up evidence to assist herself, concealed the messages with Monique Smiles from investigators, concealed Ms Smiles, concealed her exchange with Stephen Page, and lied in her evidence by not mentioning Monique Smiles when asked who she had spoken to on the night of 30 September. Senior Counsel compared what the complainant had said to Monique Smiles and Hailey Hartley on the night of 30 September. She then said "That was just lies. She did lie, ladies and gentlemen. She lied about Monique Smiles and she was shocked when it came out…".

9. [489]

   During the summing up the trial judge said to the jury:

10. [490]

    After the summing up had finished and the jury had retired to consider its verdicts, Senior Counsel for the accused said:

11. [491]

    The following morning, Senior Counsel for the accused told the judge:

12. [492]

    His Honour said "Do I apprehend from your demeanour, Mr Crown, that that's not something you’d accept?".

13. [493]

    The Crown Prosecutor said:

14. [494]

    His Honour said:

15. [495]

    As I have noted above, the Crown Prosecutor, albeit a different Crown Prosecutor who presented the argument on behalf of the Crown opposing the complainant being cross-examined about the Monique Smiles and Stephen Page issues, had conceded that such a submission was open. The trial judge, having not permitted counsel to cross-examine the complainant about those matters, then criticised her for making the submission to the jury without putting the matter to the complainant and effectively told the jury to disregard that submission.

16. [496]

    The Crown in the hearing of this appeal sought to distinguish between submissions about concealing evidence and submissions about the complainant lying. Having read the whole of Senior Counsel's closing address to the jury I am of the view that was not a distinction counsel made in her address, nor is it a sustainable distinction in this case. The whole tenor of counsel’s submission to the jury was that by concealing from the police her interactions with Ms Smiles and Mr Page, the complainant was not presenting an honest account of what had occurred on the relevant night.

17. [497]

    The jury was required to decide whether they were satisfied beyond reasonable doubt that the complainant's evidence was honest and accurate. The trial judge prevented counsel from asking questions on those topics and then when counsel addressed the jury about the complainant's dishonesty, effectively told the jury that it was an unfair submission by counsel for the accused because it had not been put to the complainant to permit her to respond. That was the very thing counsel had applied to do.

18. [498]

    The jury were deprived of evidence which had significance for their assessment of the honesty of the complainant. By not permitting counsel to cross-examine the complainant on those topics and then telling the jury that in considering the submission that the complainant had lied about matters including deletions from her phone, they should consider whether that was "fairly put", this created an unfairness in the accused’s trial. The combined effect of those circumstances was to cause a miscarriage of justice in the trial.

19. [499]

    I would uphold grounds 2 and 3. Although in respect of ground 1 I would order the appellant’s acquittal on both counts, the appellant’s success on grounds 2 and 3 would ordinarily give rise to consideration of a new trial. I am of the view that in the circumstances of the history of this matter, to put the applicant on trial for a fourth time would not be in the interests of justice. I appreciate that is a decision for the Director of Public Prosecutions.

20. [500]

    I agree with the orders proposed by Rothman J.