Coleman v R

1. [1]

   DAVIES J: I have had the considerable advantage of reading in draft the judgment of McNaughton J. From my own examination of the evidence I agree with her Honour’s reasons for the orders she proposes.

2. [2]

   HAMILL J: I have had the advantage of reading the draft judgment of McNaughton J and agree with the orders her Honour proposes. Her Honour’s comprehensive summary of the evidence and clear analysis of the issues makes it unnecessary to add much, or to explain in any detail why I agree that the appeal should be dismissed.

3. [3]

   I have reviewed the whole of the evidence and applied a critical eye to the evidence of the complainant and the complaint witnesses. I am not persuaded that the issues raised on the applicant’s behalf concerning the complainant’s credibility, reliability and accuracy mean that it was not open to the jury to reach verdicts of guilty in relation to counts 5 and 7. In reaching that conclusion, I have borne in mind that the jury was in a far better position to assess the testimony of the critical witnesses including the complainant, the applicant, JG and Ms Rodrigez. Even taking into account the issues raised at the trial and on appeal, the case against the applicant appeared to be a strong one.

4. [4]

   In terms of the applicant’s reliance on the acquittals on counts 2, 3, 4, 6, 8, 9 and 10, I agree with McNaughton J that the respondent’s submission as to the approach taken by the jury should be accepted. That is, put slightly differently, the jury generally accepted that the complainant was an honest and reliable witness and did not accept the applicant’s evidence and explanations for his conduct. In accordance with the Liberato direction, it focussed on the evidence adduced by the prosecution and applied the trial Judge’s directions concerning the onus and standard of proof and the need to consider each count separately. The jury gave the applicant the benefit of a generous doubt in relation to most of the offences. However, as McNaughton J demonstrates (at [133]-[143] and [163]), the complaint evidence was more compelling in relation to count 5. In relation to count 7, any concerns the jury may have had about the applicant’s knowledge that the complainant did not consent, was dispelled by the sequence of events provided by the complainant as to the rather extraordinary incident at the police station on 5 May 2022. That sequence of events, the conflict in the evidence, and the significance of those matters is set out by McNaughton J at [49]-[58], [150], [153]-[155].

5. [5]

   The mixed verdicts comfortably pass the test of logic and reasonableness and do not lead to a conclusion that the verdicts of guilty on counts 5 and 7 were unreasonable or unable to be supported having regard to the evidence.

6. [6]

   I am unable to accept that the record of the trial supports a conclusion that the jury compromised as a result of the way the case on count 1 was presented or otherwise. The differing verdicts are explained by the different supporting evidence on count 5 and the sequence of events in count 7 as that matter related to the issue of the applicant’s state of knowledge.

7. [7]

   An explanation for the foregoing conclusions is to be found within the judgment of McNaughton J and I need not repeat those reasons. Like her Honour, I am not left with a reasonable doubt as to the applicant’s guilt of the allegations in counts 1, 5 and 7. Nor do the acquittals on the remaining counts, in the circumstances of this case and considering the matters impacting on the reliability of the complainant’s evidence more generally, mean that the complainant’s credibility was diminished in relation to the counts upon which the jury returned guilty verdicts.

8. [8]

   The way the prosecution presented its case in relation to count 1 was somewhat unusual in that the particulars of the misconduct (set out by McNaughton J at [102]) were cast in wider terms than the specific allegations in counts 2-10, whereas the case was put to the jury on the basis that it needed to be satisfied beyond reasonable doubt of at least one of the discrete allegations in counts 2-10. That created no unfairness in the trial. On the contrary, it was to the applicant’s advantage because, as a matter of law, it may have been open to the jury to find that the admitted misconduct which did not constitute a particular offence was serious enough to warrant criminal sanction. On any view of the case, the misconduct and abuse of a position of power established in this case was at a very high level. In any event and relevant to the disposition of the appeal, once it is accepted that the convictions on count 5 and 7 were not unreasonable, ground 2 does not arise.

9. [9]

   I agree with the orders proposed by McNaughton J.

10. [10]

    McNAUGHTON J: The applicant, Glen Coleman, seeks leave to appeal against his convictions. The applicant stood trial at the District Court of New South Wales at Penrith before his Honour Judge Montgomery and a jury between 6 May 2024 and 24 May 2024 on an indictment containing 10 offences, in relation to which he was convicted of three. At the time of the alleged offending, the applicant was a 55 year old detective with the New South Wales Police Force. The alleged offences related to his sexual interactions with a 19 year old complainant (“AK”) who first encountered the applicant when she attended the Windsor Police Station to report a matter.

11. [11]

    The counts on the indictment, and the verdicts returned by the jury, can be summarised as follows (including convenient descriptors):

12. [12]

    In summary, the applicant was convicted of the common law offence of “misconduct in public office” (Count 1), and two of the six counts of sexual touching without consent (Counts 5 and 7) (Crimes Act 1900 (NSW), s 61KC(a)). He was acquitted of the four remaining counts of sexual touching without consent (Counts 2, 3, 4 and 6), as well as the three counts of “sexual intercourse without consent” (Counts 8, 9 and 10) (Crimes Act, s 61I).

13. [13]

    The applicant was sentenced to an aggregate sentence of 3 years and 7 months’ imprisonment, with a non-parole period of 2 years and 2 months. The sentence was imposed on 28 November 2024 and ordered to commence on 24 May 2024. The applicant will be eligible for release to parole on 23 July 2026. There is no application for leave to appeal against the sentence.

14. [14]

    The applicant relies on the following grounds of appeal:

15. [15]

    In relation to Ground 1, the applicant relies on a combined contention of unreasonableness and inconsistency of verdicts. In relation to Ground 2, given the way the trial was conducted, the applicant contends that the unreasonableness of the verdicts in relation to Counts 5 and 7 must render the verdict in relation to Count 1 unreasonable.

16. [16]

    As neither ground involves a question of law alone, the applicant requires leave to appeal: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The appeal is within time.

Summary of the evidence

1. [17]

   Evidence in the prosecution case was presented over seven days, and commenced with the evidence of the complainant, AK.

2. [18]

   In February 2022, AK (then 19 years old) was living in supported accommodation in Richmond House, a residence for young people at risk of homelessness. On 17 February 2022, AK attended Windsor Police Station with two of her support workers to report that her cousin had been threatening to post naked photographs of her online. The applicant worked at Windsor Police Station and was asked by his team leader, a Detective Sergeant (and by the time of the trial, a Detective Inspector), to speak to AK about this. After speaking to the applicant, AK indicated she wanted to think about whether she wanted to do anything about it. At the conclusion of the meeting, the applicant gave AK a business card with his details and said that she should contact him when she knew what she wanted to do. Shortly after this first meeting, the applicant told his team leader, in passing, “she’s just a halfwit, and I can’t see any offences in what she’s saying”.

3. [19]

   After speaking to her relatives, AK decided she wanted to do something about the issue and contacted the applicant. It was arranged for AK to attend the station for a second time, although the meeting date was changed because of floods in the area. In examination-in-chief, AK could not remember if the date of the meeting was 2 March 2022 (as written on the back of the business card) or if that was the original date which was later changed. AK accepted in cross examination that the second meeting occurred on 2 March 2022.

4. [20]

   AK said that the applicant wanted her to show him the photos she had sent to her cousin, which she did. The applicant then told AK that he did not know if there was anything he could do about it because it was morally wrong but not criminally wrong.

5. [21]

   Given the applicant’s indication, AK was really confused as to why she had been brought back in but decided to use the opportunity to ask about some other matters including an allegation against an ex-boyfriend. The applicant said he would arrange a further meeting to discuss that matter. The applicant asked AK if she had plans for the weekend and she said she was going to an interview at a strip club, but she did not tell him which club (it was the Petersham Inn). The applicant said, “Be careful” and AK replied, “I’m fine”, and that she was going with a friend. AK and the applicant organised to meet a further time.

6. [22]

   In examination in chief, AK did not remember the time frame between the second and third meeting, but said it was less than a month. In cross-examination, she agreed the date would have been 31 March 2022.

7. [23]

   AK was told to message the applicant when she arrived. As usual, they went to the first interview room. The applicant asked AK about her weekend, and she told him about the guy she was seeing at the time, and also some stuff she had found out about her uncle. In response to that information, the applicant stated, “Some of us old blokes go all right”. The applicant took a statement from AK about her ex-boyfriend, including details of sexual activity. At the conclusion of the meeting, as they were walking out, AK observed a wet patch on the applicant’s trousers around his groin area. She asked him about it and the applicant replied, “I’m so hard right now […] I’m hard for you”. Investigators located those trousers during a search of the applicant’s house on 20 May 2022 but did not seize or forensically test them. A still image of the trousers was tendered on the defence case (Exhibit 5).

8. [24]

   AK recalled that, at one stage, the applicant “asked over text and I told him that I didn’t like Petersham and that I was going to Velvet for an interview”.

9. [25]

   It was an agreed fact at trial that on 31 March 2022 the applicant used the internet on his phone to look up “velvetunderground.net.au”.

10. [26]

    On 5 April 2022, AK went for an interview at a strip club named Velvet Underground. The applicant texted AK to say he would attend, but AK did not see the applicant there. It was also an agreed fact that on 5 April 2022, the applicant attended the Velvet Underground strip club.

11. [27]

    AK stated that she did a trial at Petersham Inn and “didn’t like it”; did the interview at Velvet Underground and “didn’t go back”; and did a trial at Minx Gentlemen’s Club and “was there for no more than two hours and didn’t like it, so I left and never went back”.

12. [28]

    In cross-examination, AK was read part of her statement, where she had stated:

13. [29]

    She agreed she had invited the applicant to the Velvet Underground, but that was because “[i]t was the only control I had” and that at such venues “they’re not allowed to touch you” and “I invited him – I told him to go there because I knew that you’re not allowed to touch the girls and I didn’t want him touching me.”

14. [30]

    AK saw the applicant in person after the Velvet Underground interview. She could not remember how long after, but it was less than a month. It was put to her in cross-examination that it was around 7 or 8 April 2022, but AK could not remember the exact date, although she agreed it was after the Velvet Underground interview.

15. [31]

    The applicant arranged the meeting with AK by text message to discuss the police statement concerning her ex-boyfriend. She asked him when he wanted her to be at Windsor Police Station and he responded, “Not at the police station. It’s too loud and I don’t want people to hear what I have to say”. AK suggested they meet at Kable Street because “it’s still a public place”.

16. [32]

    AK drove to Kable Street and met the applicant. She arrived first. He had two coffees with him, and he sat beside the applicant and straddled the seat next to a table. He was wearing business pants, a buttoned up top and tie, and was wearing his gun. The applicant gave her paper and asked her to draw diagrams relevant to the matter involving her ex-boyfriend. It began to rain, and the applicant said “I’m not sitting in the rain. Let’s go to the car”. They both entered the applicant’s unmarked police car. The applicant said, referring to the pieces of paper, to get those done and get them back to him. He then said, “I have an offer for you. I will give you $500 to have sex with me”. AK replied “no”. When AK stated, “Is there anything else”, the applicant said, “Would you do a dance for me naked where you touch yourself and I touch myself and I come on your arse”. AK said “no” and the applicant replied, “Please think about it”.

17. [33]

    The applicant then started touching and rubbing AK’s leg on her upper right thigh. Then he started “grabbing” at her, outside of her clothes on her genitals and she froze. She asked if she could go. The applicant then asked “if he could see [her] boobs”. AK said, “I have to go” and the applicant then touched her breasts underneath her clothing and bra. The act of the applicant touching AK’s breast was Count 2 (in relation to which the jury found the applicant not guilty).

18. [34]

    The applicant then rubbed his hand on the area of AK’s vagina outside of her clothes. This act was Count 3 (in relation to which the jury found the applicant not guilty).

19. [35]

    AK stated:

20. [36]

    AK said to the applicant, “I have an appointment I’m going to be late for. I have to go. Please can I go”. The applicant then said “Please” and pulled AK’s tracksuit pants back to show her underwear. AK froze. He started to rub his penis on the outside of his clothes. He then asked AK about the colour of her G-string, and she showed him she was wearing a pink G-string. He then said, “Show me your pussy”. AK said, “why me?”, and the applicant replied, “Because you’re young. You’ll be tight and there’s just something about you”. The applicant kept begging her to stay. AK got out of the car, said “bye”, and went home. AK said she hated the word “pussy”.

21. [37]

    At some point, the applicant texted AK about whether she had thought about his request for a lap dance. The applicant kept “bugging” and “pestering” her about the lap dance and she wanted to get him off her back. So, she said “fine, to get him away from [her] for a while”. She said she did not intend to give him a lap dance but was buying herself time and that she “still needed his help”. AK stated:

22. [38]

    AK thought if she refused the applicant would not “help and then [she would] be back to square one”.

23. [39]

    In the early hours of 17 April 2022 (which was Easter Sunday), the applicant missed three calls from AK on his mobile phone (between 1:24:18am and 1:25:16am). There was a conversation between them by phone call later that day. In cross-examination, AK said she called because she “probably had a fight with [her boyfriend]” and that “[i]t was an emergency to [her]”.

24. [40]

    The next time AK saw the applicant in person was after she had called him because she wanted the applicant to look up information about her current boyfriend in the police information holdings. The applicant agreed in cross-examination that this meeting occurred on either 20 or 21 April 2022.

25. [41]

    AK stated:

26. [42]

    The arrangement was to meet at Colonial Reserve, Bligh Park, at about 4:00pm. This was just down the road from where AK’s boyfriend lived. When the applicant arrived, he told AK to “get in the car” and, after AK got in, said, “Don’t ask me to look into people. That’s not what I do”. The applicant told AK to delete their messages, then grabbed her phone and deleted the text messages between them. He then said he would need time to get the $400 for the lap dance as he had a joint bank account with his wife. AK told him, “take your time, I’m in no rush” as she did not intend ever to provide the lap dance.

27. [43]

    The next thing to occur was the applicant stroking AK’s right thigh, up and down, from the mid-section of her thigh up to her vagina. The applicant then put his hands inside AK’s track pants and started rubbing her vagina above her underwear, saying “[y]ou are wet and tight”. AK froze. This act was Count 4 (in relation to which the jury found the applicant not guilty).

28. [44]

    AK said, “Can I please go? I want to go see my boyfriend”. The applicant told AK she went for “stupid boys” who did not respect her. When asked what happened next, AK stated:

29. [45]

    This was Count 5 (in relation to which the jury found the applicant guilty).

30. [46]

    The applicant then said, “Come on. Let me see your pussy”. AK asked, “Why?” and the applicant said, “Because I want to see it”. The applicant then pulled her tracksuit pants down and her underwear back so he could see the front bit of her genitals. He looked and said, “It is magnificent”. The applicant grabbed AK’s left hand and placed it on his penis. She pulled back. He grabbed it again and put it back on his penis. This was Count 6 (in relation to which the jury found the applicant not guilty). AK kept saying, “Let me go. Can I please go? I want to go.” The applicant said, “I can lose everything, you need to understand what that – like, what that can do”.

31. [47]

    There was further contact between the applicant and AK including messages on 2 May 2022 when AK sent a message “I need to vent” at 10:47:24; the applicant responded “5 minutes” at 10:48:10; and AK responded “Do you know anything about legal stuff?” at 10:48:48. This is followed by a phone call from the applicant to AK at 10:56:37 for 14 minutes and 9 seconds.

32. [48]

    On 3 May 2022, the applicant texted AK at 12:29:31, “[AK] we need to finish your statement. Have you completed those drawings?” There was then a series of messages between AK and the applicant on 3 May 2022 arranging a time and a place for a meeting to finalise AK’s statement, and then further messages on 5 May 2022 leading up to the meeting on that day, as well as a number of messages subsequent to the meeting.

33. [49]

    The next time AK saw the applicant was at the Police Station. The applicant had messaged AK asking if she had finished the drawings. As AK said she had, the meeting was arranged by the applicant for AK to provide the drawings and finalise and sign the statement in relation to her ex-boyfriend. AK arrived at approximately 1:45pm and the applicant took her into an interview room. She had forgotten the drawings. After the police statement was signed, the applicant asked if two of her friends, who knew about the situation with the ex-boyfriend, would talk about it. AK said she would talk to them and got up to leave.

34. [50]

    As AK got up to leave, the applicant pulled out his wallet, put a $50 note and a $20 note on the table, and said, “It’s yours. Give me a head job”. AK said, “What? We can’t fuck in the police station. I have to go. I’m having lunch with my boyfriend”. The applicant said, “Come on, please. We can go to the car”, and AK said, “No, my boyfriend has my location, he can see where I am”. The applicant said, “Fine, I’ll just keep it”, and he snatched the money off the table.

35. [51]

    AK felt “really bad”. She was scared the applicant would not help with her ex-boyfriend. She had just finished her statement and “didn’t want him to just throw it all away”. AK said, “No, wait. You know, somebody could walk in”. The applicant walked to a door, stuck his head out, looked up, and flipped a switch to turn the light on to show the room was in use, and closed the door again.

36. [52]

    The applicant said, “Come on, let me see your boobs”. AK said, “No, I hurt one, no”. AK gave the following evidence:

37. [53]

    AK gave evidence that she “realised that there was no getting out of it, so I said ‘I’m putting a timer on my phone, one minute. One minute and then I want to go’”. The applicant walked back over to the door, unzipped his pants and withdrew his penis. He looked at AK, cupped his balls and his penis and shook it and said, “Come on”. AK started the timer on her phone and fellated the applicant. AK gave evidence she “did what he told [her] to do” and that she “didn’t want to touch him”. This act was Count 8 (in relation to which the jury found the applicant not guilty).

38. [54]

    The timer went off after a minute and AK grabbed her things to leave. AK gave evidence of the following conversation which then took place:

39. [55]

    AK gave evidence that she thought agreeing with the applicant’s request was “the only way [she was] going to get out of this situation he’[d] just put [her] in”. The applicant inserted his penis into AK’s vagina (after a few attempts) and when AK’s phone timer went off, she moved away, turned the timer off, grabbed some tissues, wiped herself and put the tissues into the bin. This act was Count 9 (in relation to which the jury found the applicant not guilty).

40. [56]

    AK said, “Can I go now please”, grabbed her belongings and took the $70 cash.

41. [57]

    AK said the following about why she grabbed the $70:

42. [58]

    As AK collected her belongings the applicant said, “Give me another kiss”, and he grabbed the side of her face, the back of her neck and kissed her on the lips. He then went underneath her dress, moved her underwear to the side, put his fingers around the outside of her vagina and licked her vagina for a few seconds while AK remained frozen. This act was Count 10 (in relation to which the jury found the applicant not guilty).

43. [59]

    AK said, “Stop, I want to go”. The applicant said, “Let me know about Brad and Aaron”, and AK said, “Yep”. The applicant then walked her out. CCTV footage from the Police Station was tendered at trial, but did not depict what occurred inside the interview room. This Court has not viewed the CCTV footage, but it is apparent from the submissions of both parties that it showed the applicant and AK talking outside after the Police Station incident for a few minutes. I am conscious of what the High Court said and decided in The King v ZT [2025] HCA 9; (2025) 99 ALJR 676, but in this case there was no issue as to what happened outside of the police station, and the parties did not suggest this Court needed to view the CCTV footage for itself.

44. [60]

    There was also a series of text message exchanges on 5 May 2022 after the Police Station incident, including from AK, “Brad said yeah all good he’s happy to help”; the applicant messaging, “Don’t forget Snapchat”; the applicant advising AK not to sell herself short (apparently in relation to her boyfriend), and asking why she was chasing someone who did not treat her how she should be treated. AK stated in response to this, “He gives me money”, and “He’s just bad at plans”. The applicant texted, “I give you money”, and “If your [sic] not number 1 leave”. AK texted back, “Yeah but I do stuff for that money”, and “Yeah I know”.

45. [61]

    In the hours and days which followed, the applicant continued to communicate with AK via text message and the application Snapchat. About 10 minutes after the last message extracted above, “yeah I know”, the applicant texted a naked photograph of himself including his erect penis while he lay on a bed in his bedroom. AK responded with a photograph of her hip and stomach area depicting two tattoos on her hip taken in a shower.

46. [62]

    On 10 May 2022, the applicant sent a Snapchat message to AK asking, “Where’s my pussy pic you promised me 5 days ago?” and “Ao [sic] you don’t want the $600 all good you only had to say”. Of the 30 text messages/Snapchat messages or attempted phone calls between the applicant and AK between 10 May 2022 and 12 May 2022 all but five were sent or made by the applicant.

47. [63]

    The third last contact was at 7:55:04am on 12 May 2022. The applicant sent the following to AK via Snapchat (to AK’s “Mia” Snapchat username):

48. [64]

    This was followed by the final two communications from the applicant to AK on 12 May 2022: at 7:56:09am, a message from the applicant requesting, “Please review Mia’s sc when you wake up”; and at 9:37:28am, by Snapchat stating, “Should say 23rd”.

49. [65]

    On 12 May 2022, AK told her friend NG that the detective in her sexual assault case was “asking to give her money for sex” and showed him some text messages from the applicant. NG said AK “seemed really scared […] about what had happened”. AK then went on a different Snapchat account, and she asked him to read a message. As he did not want to let the sender of the message know that the message was opened, he just “half swiped it” and his girlfriend SB (a pseudonym) took a photo of it. SB then sent it to NG’s mother, who was a police officer.

50. [66]

    AK told NG about an event “from the Friday before” when AK and her boyfriend had a fight. She had asked to meet with the applicant and the applicant had told her to meet at a park. NG gave evidence that AK said:

51. [67]

    As to the incident in the interview room, NG recalled AK’s account as follows:

52. [68]

    JG is NG’s mother and a police officer who also spoke to AK on 12 May 2022. JG recalled AK being worried about reporting the applicant because of what would happen to her other police matters.

53. [69]

    JG recalled AK complaining about all three incidents, during which “[s]he shook like a leaf” and “teared up a couple of times”.

54. [70]

    In relation to the Kable Street incident, JG recalled AK said she received a message from the applicant that he wanted to meet her at a park in Windsor which was down near the river. She questioned him why they couldn’t meet any more at the Police Station and he said that the Police Station was too busy and too noisy. JG said AK complained:

55. [71]

    In relation to the Colonial Reserve incident, JG recounted that AK said she approached the vehicle at the driver’s side and the applicant said he was not going to speak to her unless she entered the car, so she entered the passenger’s side. JG said AK complained as follows:

56. [72]

    JG also stated:

57. [73]

    In relation to the Police Station incident, JG recalled AK complained that the applicant put $70 cash on the table and said, “Suck my dick”. She declined and told him she wanted to leave, but the applicant “again begged, begged, begged, begged until she did what he asked”. AK also said the applicant “[l]icked her vagina, and he put it in for a second”.

58. [74]

    In cross-examination, JG agreed she had given evidence many times before as part of her job and she was aware of the importance of being as accurate as she could be in her statements. Her evidence was not challenged.

59. [75]

    Ms Rodrigez, a case manager, also gave evidence in relation to complaints made by AK on 12 May 2022.

60. [76]

    In relation to the Kable Street incident, Ms Rodrigez gave evidence of AK’s complaint in the following terms:

61. [77]

    Ms Rodrigez said that AK gave her the following account over 12 and 13 May 2022:

62. [78]

    Ms Rodrigez stated, relevantly, that after AK had come into the interview room and looked at the statement, she complained:

63. [79]

    Ms Rodrigez observed that AK was “shaky”.

64. [80]

    Ms Rodrigez also stated:

65. [81]

    Ms Rodrigez also stated that AK said she wiped her vagina with a tissue which she put in the bin; that the applicant tried to kiss her and then, in the end, “I think he tried to toucher [sic] boob again”. She said she had to go, and that she grabbed the $70 “[b]ecause he made me do it. I was bloody taking it,” because she was cranky at him.

66. [82]

    Ms Rodrigez was cross-examined. During the cross-examination she agreed she had spoken to AK before giving evidence, including that week, the day before, and the day of her testimony. It was suggested to her that she had spoken with AK about the evidence she gave in the trial which was rejected by Ms Rodrigez. Several matters were put to Ms Rodrigez which were not in her original statements. She also said that her recollection was better today than it was when she did her first statement.

67. [83]

    Complaint evidence was also provided by one of AK’s support workers and SB, but it was of a limited nature.

68. [84]

    The clothing and underwear worn by AK on 5 May 2022 were forensically tested. A DNA profile consistent with the applicant was located on a tape lift of the inside crotch of AK’s underpants, as well as tape lifts from the inside chest area of her dress. The tape lifts from the inside chest areas of the dress also tested positive for the potential presence of saliva.

69. [85]

    On 17 May 2022, the applicant created a document on his work computer which outlined an account of his interactions with AK. It was referred to at trial as the GCL document.

70. [86]

    This document referred to various meetings between the applicant and AK, and included detail of discussions about paying AK for sex. However, there was no reference to any sexual contact between himself and AK in the GCL document.

71. [87]

    Detective Inspector Sean Beehag gave evidence in relation to the expected conduct and ethical standards applicable to Police Officers of the NSW Police Service. This included reference to the “Code of Conduct and Ethics”, and “Conflicts of Interest Policy”, copies of which were both tendered.

72. [88]

    At trial, there was no dispute that the applicant had engaged in numerous breaches of these policies by his interactions with AK.

73. [89]

    The applicant gave evidence at trial and denied committing all the offences. He admitted that there had been sexualised comments and messages exchanged between himself and AK, but maintained there had been no sexual contact prior to the Police Station incident of 5 May 2022. That is, the applicant denied that any of the alleged sexual acts had occurred at either Kable Street or Colonial Reserve (the subject of Counts 2 to 6).

74. [90]

    It was not in dispute that, whilst in the car at Colonial Reserve, AK asked the applicant to search her current boyfriend on the police database, and the applicant refused to do so.

75. [91]

    It was further not in dispute that the next time the applicant and AK met in person was at Windsor Police Station on 5 May 2022, nor was it disputed that AK signed a statement. He claimed that AK had raised in the interview room that she would “give [him] oral sex for $70”. He accepted that AK had fellated him (Count 8), and penile/vaginal intercourse had occurred (Count 9) but he understood these acts were with AK’s consent. He denied having engaged in cunnilingus with AK in the interview room on 5 May 2022 (Count 10).

76. [92]

    The applicant accepted he had put AK’s right breast in his mouth “for a couple of seconds” (Count 7) whilst in the interview room but stated this occurred after the acts of fellatio and penile/vaginal intercourse. He understood this occurred with AK’s consent.

77. [93]

    The applicant agreed he gave AK $70 in cash whilst in the Police Station.

78. [94]

    The applicant said that he created the GCL document after being informed he was under investigation for sexual assault. He said, “to the best of my recall I put down the details of our meetings, phone calls, et cetera”. He claimed to have left out reference to any sexual contact in the GCL document as he was “embarrassed” and “didn’t want to get into trouble”. The applicant said he had deleted the messages between himself and AK before he wrote the GCL document.

79. [95]

    In cross-examination, the applicant accepted that he knew AK was vulnerable.

80. [96]

    The applicant also conceded the following:

81. [97]

    The applicant admitted that his involvement with AK in negotiating sexual acts in exchange for money was for his own sexual gratification. He accepted that he had failed to disclose the conflict of interest to his superiors and had failed to remove himself from the subject police investigation that brought him into contact with AK.

82. [98]

    In relation to Count 1, however, the applicant contended that his admitted conduct did not reach the level requiring criminal sanction. He argued that his termination from his position as a serving NSW Police Officer on the basis of the Commissioner making an order under s 181D of the Police Act 1990 (NSW), that she had lost confidence, is a non-criminal sanction available for serious misconduct.

Jury directions on the elements of the offences

1. [99]

   Before this Court, the applicant has made no complaint in relation to the trial judge’s summing up to the jury. It can be noted that a number of standard directions were given including one in relation to a separate consideration of counts and also what is known as a Markuleski direction (derived from R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [188] and [191] per Spigelman CJ) in the following terms:

2. [100]

   The trial judge also provided the substance of what is known as a Liberato direction (derived from Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66) to the effect that the applicant did not have to prove anything, that even if the jury rejected the applicant’s account, the jury should put it to one side, and the question would remain whether or not the Crown, on the basis of the evidence that is accepted, has proved the guilt of the applicant beyond reasonable doubt in relation to each element of each count on the indictment.

3. [101]

   The jury was provided by the Crown with an annotated copy of the indictment (MFI 2) which set out fourteen particular acts relevant to Count 1. Some, but not all, of these acts were the subject of Counts 2–10 on the indictment. In the summing up, the judge directed the jury in accordance with an elements document agreed between the parties and provided to the jury (MFI 23). As to the first element, that the accused acted to procure AK for his own sexual gratification, the jury was directed that they needed to be satisfied beyond reasonable doubt that the applicant conducted himself “on any one or more of the occasions, which either alone or together, the Crown says, establish [the applicant] procured [AK] for his own sexual gratification”.

4. [102]

   The 14 acts were as follows:

   1. (1)

      The [applicant] obtained sexual gratification from [AK] and told her that he had an erection.

   2. (2)

      The [applicant] offered, and/or engaged in negotiations, to pay [AK] money for sex and/or sexual favours.

   3. (3)

      The [applicant] touched [AK]’s breasts.

   4. (4)

      The [applicant] asked [AK] to show him her underwear and/or genitalia.

   5. (5)

      The [applicant] touched [AK]’s genitals.

   6. (6)

      The [applicant] touched his own penis in the presence of [AK].

   7. (7)

      The [applicant] placed [AK]’s hand on his penis.

   8. (8)

      The [applicant] requested that [AK] send him intimate photos of herself.

   9. (9)

      The [applicant] sent [AK] a photograph of himself naked.

   10. (10)

       The [applicant] engaged in fellatio with [AK].

   11. (11)

       The [applicant] engaged in penile-vaginal intercourse with [AK].

   12. (12)

       The [applicant] licked and/or sucked [AK]’s breast.

   13. (13)

       The [applicant] performed cunnilingus on [AK].

   14. (14)

       The [applicant] kissed [AK] on the mouth.

5. [103]

   As also noted below in relation to the second ground of appeal, the way the case on Count 1 was put to the jury by the Crown has implications for the appropriate disposition of Ground 2 should Ground 1 succeed.

6. [104]

   For Counts 2 to 10, in relation to proving that AK did not consent, the Crown relied on AK’s evidence that she did not freely and voluntarily agree to any of the sexual touching or sexual intercourse. The Crown also relied on the law providing that a person does not consent if they provide consent because they are unlawfully detained. Further, the Crown submitted, and the jury were directed that if AK consented it was because the applicant abused a position of authority or trust, and this was something the jury could take into account in determining if AK freely and voluntarily consented.

7. [105]

   As to proving the applicant knew that AK did not consent, the Crown relied upon, and the jury were directed as to, four potential bases of knowledge. This was outlined in the elements document as follows:

   1. (1)

      [The applicant] knew AK did not consent; or

   2. (2)

      [The applicant] was reckless as to whether or not [AK] consented because he realised there was a possibility [AK] did not consent; or

   3. (3)

      [The applicant] was reckless as to whether or not [AK] consented because he did not even think about whether or not she consented but went ahead not caring, or considering it was irrelevant whether she consented; or

   4. (4)

      [The applicant] may have actually believed [AK] consented, but he had no reasonable grounds for that belief.

8. [106]

   The Crown also sought to establish from the evidence at trial that the applicant had a tendency to have a particular state of mind, namely a sexual interest in AK, and a tendency to act on that sexual interest. In the Crown closing address, it was submitted:

Ground 1: The jury’s verdicts in relation to Counts 5 and 7 were unreasonable

1. [107]

   This ground was further explained in the applicant’s written submissions as follows:

2. [108]

   As the argument developed in writing and orally, it is apparent that the reasonableness of the verdicts of guilty for Counts 5 and 7 was put in issue based on various matters which were said to undermine the credibility of AK separate to any considerations of demeanour, and which should have undermined her evidence in relation to each count equally to the point where no verdicts of guilty should have been returned. It was further contended that there was no proper basis for the jury to distinguish between the counts.

3. [109]

   The Crown contended that none of the matters raised by the applicant gave rise to a reasonable doubt in relation to the applicant’s guilt for Counts 5 and 7 and further, that there was a proper way to distinguish between the verdicts which would allow the Court to conclude that the jury performed their functions as required.

4. [110]

   The general principles an appellate court must apply in determining whether a verdict is unreasonable have been set out most recently by the High Court in The King v ZT at [7]–[11], referring to the authoritative case of M v The Queen (1994) 181 CLR 487; [1994] HCA 63:

5. [111]

   Further, in The King v ZT at [15], the High Court continued:

6. [112]

   The test to determine whether verdicts are inconsistent is one of logic and reasonableness: Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at p 366. In determining any suggested inconsistency, “if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted”: Mackenzie at p 367.

7. [113]

   Further, as stated in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34], and of particular relevance to this appeal:

8. [114]

   It can also be noted that earlier in [34] of MFA (prior to the extracted passage), the importance of considering the reasonableness of the jury’s different verdicts in the context of the facts and circumstances of the particular case was also emphasised.

9. [115]

   I will deal with the applicant’s submissions in the course of my consideration of this ground of appeal. In line with the way the matter was argued, I will first deal with the issue of AK’s credibility generally. Then, after dealing with Counts 5 and 7 separately, I will consider the submissions relating to jury compromise and lastly turn to the question of inconsistency of verdicts. To an extent, these issues overlap.

10. [116]

    I first note that it was accepted by the applicant in principle that a verdict of not guilty does not necessarily reflect the jury’s disbelief of the complainant’s evidence, but may simply reflect the “discharge of the heavy responsibility” of the jury.

11. [117]

    The applicant further stated in oral submissions that even though the applicant gave evidence, given the nature of the ground sought to be agitated, there could be a “standing assumption […] that the applicant’s evidence has been rejected in its entirety” and “I certainly don’t intend to rely on any aspect of the applicant’s account where there is any point of differentiation”. It was also noted that the applicant had denied in his evidence that the Kable Street and the Colonial Reserve incidents had even occurred, whereas for the Police Station incident (except in some relatively minor respects), other than the act of cunnilingus, the acts were conceded, and only consent was in issue before the jury. Thus, whilst there was a significant overlap as to the issues raised for both Counts 5 and 7, particularly on the question of an asserted inconsistency, it was also appropriate to separately evaluate each count.

12. [118]

    The applicant submitted that whilst it was acknowledged that this was a matter where due deference must be given to the jury’s opportunity to assess AK and the other witnesses, the particular matters relied upon by the applicant in this appeal in relation to credibility were readily discernible from the transcript and the exhibits, and did not rely upon assessment of demeanour. It was also, however, fairly acknowledged by the applicant that the case law recognised the dangers in trying to “pigeonhole” any kind of complainant behaviour. Despite this acknowledgement, the applicant pointed to a number of matters arising from AK’s behaviour which can only have been relied upon on the basis that the behaviour was so unusual to the point of undermining AK’s credibility.

13. [119]

    For instance, the applicant emphasised that it was important to place the charged incidents in sequence and in the factual context of there being ongoing improper and highly sexualised statements before and between the charged incidents. This included AK’s invitation to the applicant to attend the Velvet Underground strip club on the day of her job interview in circumstances where she accepted in cross examination that prior to that the applicant had never tried to touch her. It was also noted that the invitation occurred after one of the meetings at the Police Station where AK gave evidence that the applicant had made some sexually suggestive remarks about “old blokes go[ing] all right” and where AK said there was a visible wet patch on the applicant’s trousers.

14. [120]

    Other matters pointed to by the applicant as going to AK’s credibility which were said not to be dependent upon demeanour were AK’s reason for providing the applicant with her Snapchat account details (being to keep the communications away from her boyfriend) and also the agreement by AK to have sex with the applicant for a fee, which appeared to be after all the offending had occurred, albeit the timing was not entirely clear.

15. [121]

    Other matters contended by the applicant as going to credit but not reliant on demeanour was the acceptance by the complainant of the $70 after the acts on 5 May 2022, and her explanation for it; the alleged deletion by AK of Snapchat messages from SB’s phone which SB said occurred, but AK denied; and that the applicant and AK were filmed by CCTV after the Police Station incident for several minutes in conversation on the footpath outside Windsor Police Station, whereas AK’s evidence was that she wanted to leave the Police Station as quickly as she could.

16. [122]

    Further, as to the times where AK initiated contact with the applicant, it was submitted by the applicant that an appropriate degree of caution should be exercised by the Court. Whilst the Crown had emphasised in its submissions that the reason AK persisted with contact with the applicant was because she wanted her sexual assault investigation in relation to her ex-boyfriend to continue, the applicant contended that was not the complete picture, but rather the picture was “more nuanced”. For instance, the applicant pointed to the Colonial Reserve encounter being initiated by AK as she wanted the applicant to look up information in the police database in relation to her boyfriend. The applicant also pointed to the evidence of the message at [47] above from AK to the applicant, “I need to vent”, which was sent on 2 May 2022, three days before the Police Station incident.

17. [123]

    It was contended by the applicant that the conversation and observations alleged to have arisen at the third meeting at the Police Station (including that the applicant was “hard” for AK, and that he had a wet patch on the front of his trousers) gave rise to “inherent issues of plausibility relating to [AK’s] account and, if that account is to be taken at face value, a logical and common-sense alert for [AK] to carefully limit the location and nature of future contact with the applicant due to an asserted sexual interest that, at least implicitly, seems to have been suggested to have resulted in sexual excitement such that some degree of ejaculation occurred merely from talking to [AK]”.

18. [124]

    It was noted by the applicant that between the Kable Street and Colonial Park allegations, AK recalled a text communication to the effect that she agreed to give the applicant a lap dance. It was further noted that AK agreed in cross-examination that if the Kable Street allegations had occurred, she would have wanted to stay well away from the applicant. Despite this, she had unilaterally contacted the applicant on the day of the Colonial Reserve meeting only days after the Kable Street allegations were said to have occurred. Further, after the Colonial Reserve allegations were said to have occurred, there were text messages initiated by AK on 23 April 2022 indicating she wanted the applicant to answer a question and asking whether he had time to meet up for a bit. In cross-examination, AK said that she wanted to discuss something about her boyfriend. The applicant pointed to the case of Xu v R [2019] NSWCCA 178, and sought to draw strength in his argument in this case from the result in that case.

19. [125]

    Before proceeding further, I make the observation that in my view, the applicant’s reliance on Xu was misconceived in light of the clear emphasis in the case law that the reasonableness of a jury’s different verdicts must be considered in the context of the facts and circumstances of the particular case.

20. [126]

    The Crown contended in its submissions before this Court that the transcript of the complainant’s evidence demonstrates that AK gave clear and cogent evidence. Further, there were aspects of AK’s account that suggested she was telling the truth and not exaggerating what occurred. For instance, she candidly acknowledged telling the applicant about the interview at the strip club, setting a timer for the sexual acts in the interview room, and taking the $70 before leaving (including her motivation for doing so).

21. [127]

    I agree with the Crown’s submission that the jury enjoyed a significant advantage over this Court in their assessment of AK.

22. [128]

    I also acknowledge the applicant’s submission that AK’s account, on one view, included unusual and curious aspects. These have been highlighted by the applicant in this Court. It is fair to observe that an assessment of such unusual aspects could, in some circumstances, be treated as separate to demeanour assessment.

23. [129]

    However, it is no overstatement to observe that the facts of this case provide a truly extraordinary context in which to assess AK’s credibility (including the so-called non-demeanour issues). It is critical to keep in mind that this case involves a 55 year old senior police officer, who has admitted to having conducted himself, in the course of his employment, in a highly sexual manner with a vulnerable 19 year old complainant, including having (admitted) sexual intercourse with her in a police station. This case involves a vast power differential between the applicant and the complainant within which complex human motivations and responses must be assessed.

24. [130]

    In my view, the assessment of AK’s credibility (including the so-called non-demeanour issues) is, in the particular circumstances of this case, quintessentially a jury question. The jurors were able to observe AK give evidence, including her emotional state when recalling events. They could also observe her as she was tested on that evidence. The jury could assess the confidence with which she accepted or denied propositions put to her and the ease with which she accepted or denied propositions. Importantly, the jury was uniquely placed, and in my view, better placed than an appellate court, to use their combined experience of life’s complexities and their wisdom to assess AK’s evidence within the context of this truly extraordinary situation.

25. [131]

    It is also important to bear in mind the observations of McHugh J in M v The Queen:

26. [132]

    As to Count 5, the applicant contended that it was not reasonably open to the jury to conclude that Count 5 had been made out when it had a reasonable doubt about the other Colonial Reserve allegations, said to have occurred during the same single course of conduct. There was no material difference between any level of detail or clarity of recall.

27. [133]

    The applicant acknowledged that the key complaint evidence was given by JG, and extracted the following passage:

28. [134]

    In the applicant’s written submissions in this Court, it was stated:

29. [135]

    It was accepted that JG was not challenged on credit grounds at the trial. Accepting JG gave a reliable account of what AK told her, the applicant pointed to the mention of only a single meeting at the Police Station and “nothing else happened on that occasion” which is at odds with the third meeting recounted by AK which included, amongst other things, AK noticing a wet patch on the applicant’s trousers and the applicant saying “I’m so hard right now” and “I’m hard for you”.

30. [136]

    The applicant also noted JG’s account in relation to the Colonial Reserve incident (described as “a park in Bligh Park”). JG’s evidence was that AK told JG “he asked to meet her” which differed from AK’s account that she had initiated the meeting as she wanted some information about her boyfriend. The applicant also noted the lack of JG’s account including AK telling her anything about the applicant wanting to see her “pussy” on that occasion, let alone numerous times. The applicant submitted “the apparent failure to give full complaint of at least all key acts described as part of the incident should, as a matter of common sense, diminish the quality of the key complaint evidence (i.e., as relates to [C]ount 5), not elevate it to a proper basis for determinative reconciliation of mixed verdicts.” In short, the applicant contended that the complaint evidence provided by JG was not of “determinative significance” in explaining the asserted inconsistency of verdicts. Further, the applicant submitted that if JG’s evidence was so significant, it failed to account for the not guilty verdicts in relation to the matters recounted by JG concerning the Police Station incident, and the guilty verdict for Count 7 which was the only part of the Police Station incident not reported to JG by AK.

31. [137]

    Further, as to the complaint evidence as a whole, the applicant submitted that when the complaint evidence was viewed in totality, there was complaint evidence of at least an equal, and arguably a more precise quality for various charged acts for which the jury acquitted. The overall state of the complaint evidence was submitted by the applicant to be insufficient to provide a rational explanation for the mixed verdicts in relation to the allegations.

32. [138]

    However, in my view, when the complaint evidence is properly examined, the applicant’s contention has not been made good.

33. [139]

    Whilst Ms Rodrigez gave evidence of a complaint concerning the applicant allegedly touching AK on the outside of the vagina and saying words to the effect of “you’ll be tight” or “you are wet and tight”, the location was not specified as at either Kable Street or Colonial Reserve. Neither did Ms Rodrigez provide evidence of a complaint that the applicant touched AK’s breasts as part of either the Kable Street or the Colonial Reserve incident.

34. [140]

    Further, as the Crown noted, NG only referred to the Colonial Reserve allegation and gave no complaint evidence directly referable to the Kable Street allegations (Counts 2 and 3). While NG spoke of AK’s complaint at Colonial Reserve in a car by the applicant, involving sexual advances and a request to touch his exposed penis, his evidence did not detail the acts subject to Counts 4, 5 or 6. That is, while there was a general complaint of sexual advances and requests, none of the acts were on the indictment.

35. [141]

    Further, as also identified by the Crown, there was a concerted attack on the credibility of Ms Rodrigez by the applicant’s counsel in his closing address before the jury. That was because Ms Rodrigez accepted she had discussions with the complainant prior to giving evidence and after giving her statement and there were some inconsistencies between her statement and evidence. Although Ms Rodrigez denied any of those discussions involved her evidence, it was put to the jury that “Ms Rodrigez is somebody who you would have real concerns with”, that she was “making things up as she goes along” and that Ms Rodrigez, who was one of the principal complaint witnesses, “I would suggest, is just unreliable” and “you would just simply set Ms Rodrigez to one side”.

36. [142]

    This submission can be contrasted with that made by the applicant’s counsel in his closing address about the police officer, JG, the mother of AK’s friend. The applicant’s counsel submitted that “[JG] gives the most coherent account”. Whilst JG recalled a request to show breasts in relation to the Kable Street incident, she provided no complaint evidence in relation to either of the Kable Street counts, being Counts 2 and 3. The complaint about “rubbing my leg and stuff” was not specified to have taken place in either Kable Street or Colonial Reserve. The only specific count directly referenced in the complaint to JG by AK was that the applicant touched AK’s breasts, “Yes, he touched my boobs”. It was also noted by JG that AK was noticeably shaking when she spoke of this incident and generally when speaking about what happened, and was tearing up. In summary, JG gave compelling evidence about a general complaint of sexual requests but only a clear complaint in relation to Count 5 and the touching of AK’s breasts.

37. [143]

    I agree with the Crown’s submission that there was cogent complaint evidence in relation to Count 5 which set that count apart from the other Colonial Reserve counts, and the Kable Street counts. In contrast to his submissions about Ms Rodrigez, defence counsel did not undermine JG’s credit, nor did he invite the jury to set her evidence to one side.

38. [144]

    As to the applicant’s submission that following the Kable Street complaints, AK would “logically” have limited the location and nature of future contacts, this fails to take into account the extreme power differential between the applicant and AK. It also fails to acknowledge that AK did not set up the encounter at Colonial Reserve with a view to it being anything other than a request for a short exchange of information as set out at [41] above. It was the applicant who directed AK to “get in the car” and admonished her for requesting the information she had sought. This encounter further highlighted the extreme power differential between the two. It was in this context that the jury was obliged to assess AK’s evidence, that being that if she rejected the applicant, she “didn’t think he’d help and then [she would] be back to square one”. It can also be noted that the jury requested the transcript of evidence of both AK and the applicant. This indicates the care with which the jury undertook its task.

39. [145]

    None of the matters raised by the applicant give rise to a reasonable doubt in relation to the applicant’s guilt on Count 5.

40. [146]

    There was no issue at trial that the applicant had licked or sucked AK’s breast in the interview room. It was admitted by the applicant and supported by DNA evidence. There was a dispute as to the timing of the act in the course of the incident in the interview room, and also, importantly, an issue as to consent.

41. [147]

    It was submitted by the applicant that the confirmatory DNA evidence provided no basis for differentiating Count 7 compared to the other counts said to have occurred during the Police Station incident of which the applicant was acquitted. So much can be accepted. It was conceded by the Crown to provide no such basis at the hearing of the appeal. It was further submitted by the applicant that there was no complaint evidence which properly accounted for the different verdicts.

42. [148]

    The applicant further argued that the dispute in the timing of the Count 7 incident (with AK alleging it occurred first, but the applicant stating it occurred after a brief period of sexual intercourse) did not assist in rationalising the guilty verdict on that count.

43. [149]

    The applicant also contended that the “clear evidence of non-consent” (relied upon by the Crown to rationally explain the verdict of guilty on this count), should have carried through to the rest of the encounter.

44. [150]

    As set out above at [52], the applicant first asked to see AK’s breasts. She responded, “No, I hurt one”. The applicant then pointed to the next portion of AK’s evidence:

45. [151]

    It was argued by the applicant that “acting reasonably, that clear and express communication of non-consent should have coloured every single thing that followed in the interview room incident, including the issue as to any reasonableness of belief as to consent in the mind of the applicant or any issue of recklessness.” It was further submitted that “properly viewed and not just siloing off those protestations to the charge count, it's logically and rationally inconceivable that a jury would accept that consent could just materialise - and real consent could just materialise seconds later for acts of […] vaginal intercourse […] and other forms of sexual intercourse including cunnilingus and fellatio”. (Emphasis added.)

46. [152]

    In my view, there was ample evidence for the jury to convict on Count 7. AK had given a clear account of the act and when it occurred. As observed by the Crown, that the act occurred first was consistent with the complaint she first made to NG on 12 May 2022, stating that the applicant “started grabbing and licking her. And he put $70 on the table and asked her to give him a head job”.

47. [153]

    An acceptance by the jury that the act occurred early in the sequence of events was relevant to the jury’s determination in relation to consent. As set out above at [52] and [150], AK stated she said, “No, I hurt one” when the applicant asked “let me see your boobs”. He “didn’t care” and “pulled my dress down and he sucked my boob anyways”. If this evidence was accepted, it was clear that AK did not freely and voluntarily consent to this act, and importantly, that absence of consent was clearly communicated to the applicant in relation to this act.

48. [154]

    In my view, AK’s account as to why she took the $70 set out at [57] above does not undermine the applicant’s account. Nor does the evidence of AK and the applicant talking after the incident, which was captured by CCTV, which must also be viewed in light of the gross disparity in power between them, and the undisputed fact that she had just signed a police statement. The text message sent shortly after the incident that day, “Brad said yeah all good he’s happy to help”, also indicates that the relationship still involved, in part, the applicant performing his role as a police officer in relation to her complaint about her ex-boyfriend.

49. [155]

    The jury was entitled to view the events involving the clear communication of non-consent in relation to Count 7 in a different light to the events which followed.

50. [156]

    In my view, none of the evidentiary matters raised by the applicant give rise to a reasonable doubt as to the applicant’s guilt on Count 7.

51. [157]

    The applicant highlighted that Counts 5 and 7 were the least serious of the acts charged. It was submitted (in a “very guarded and in some ways reluctant submission”) that this indicated a possible compromise on the part of the jury, providing a compromised basis for conviction on Count 1. It was not in contest on the appeal that the central way the Crown put its case relating to Count 1 was that the applicant’s guilt of any other charged count of specific sexual misconduct would, in effect, be automatically determinative of his guilt for Count 1.

52. [158]

    It was submitted by the applicant that the repeated (albeit correct) reference in the trial judge’s summing up and counsel’s closing addresses as the underpinning conduct for the Count 1 offence needing to be proven to be of a kind that required or deserved “criminal sanctions” may have, potentially, reinforced an erroneous belief on the part of the jury that, should it find the applicant guilty of one or more of the specified charged acts, it would then have an appropriate basis and justification to find the applicant guilty of Count 1.

53. [159]

    In my view, this submission is completely speculative and has not been made good. The jury was directed not to compromise, and it can be assumed that the jury complied with this direction. The submission also fails to account for the fact that one of the two counts of which the applicant was convicted was an act he denied had occurred, as well as there being no conviction at all in relation to the Kable Street incident. Rather than pointing to a compromise, the result suggests a proper consideration of the evidence before the jury.

54. [160]

    As noted above at [99], it is accepted that there was no error in the legal directions to the jury. The jury was directed in an orthodox fashion to consider each count separately, and was directed, as set out at [105], as to the four potential bases of knowledge relevant to consent.

55. [161]

    I agree with the Crown submission that each of the acquittals was consistent with the jury:

56. [162]

    This approach was consistent with the jury being careful to take its task seriously, fully aware of the heavy burden of proof on the Crown and discharging its weighty responsibility cautiously. The verdicts of not guilty do not mean, as contended by the applicant, that the jury must have had a reasonable doubt as to the “issue” of non-consent, if that is taken to mean whether the Crown had established AK was not freely and voluntarily agreeing to the acts.

57. [163]

    Another rational explanation for the verdict of guilty on Count 5 was, as discussed above, that it was directly supported by the complaint evidence given by JG which did not include reference to the conduct the subject of Counts 4 and 6. Further, as noted above, the “rubbing my leg and stuff” complaint did not directly relate to any count on the indictment and can be distinguished. Similarly, that the applicant was acquitted on other counts relating to the interview room in relation to which JG also gave complaint evidence does not detract from the complaint evidence in relation to Count 5, given the different considerations as to knowledge of consent for those interview room acts which (other than the act of cunnilingus) were admitted to have taken place.

58. [164]

    The applicant’s submission that the clear refusal of consent (if the Count 7 act occurred first) logically flowed through to all the other acts does not grapple with the evidence which followed. Importantly, AK stated, after her refusal was completely ignored in relation to Count 7, she “realised that there was no getting out of it”. It was in this context she said that she attempted to regain some control by using a timer in relation to Counts 8 and 9, clearly having implications for the jury’s consideration of knowledge of lack of consent, as well as the cunnilingus which was alleged to have followed. Unlike the other counts in the Police Station, in relation to Count 7, AK gave clear evidence that she did not consent, and importantly, that this was conveyed to the applicant. This set Count 7 apart, providing “something additional” and a rational basis for the conviction on Count 7 and the acquittals for the acts directly after.

59. [165]

    I am of the view that the different verdicts can be logically and reasonably explained. The jury may have found it more probable than not that AK was telling the truth, but were not satisfied beyond reasonable doubt, without something additional, that it had been established that the applicant knew AK was not consenting. Count 5 was supported by cogent and unimpeached complaint evidence and Count 7 was supported by clear evidence of refusal of consent. The verdicts are not irreconcilable, and nor do the acquittals indicate a rejection of AK’s evidence or a finding she was not an honest and accurate witness.

60. [166]

    Ground 1 should be dismissed.

Ground 2: The unreasonableness of the verdicts for Counts 5 and 7 renders the verdict on Count 1 unreasonable

1. [167]

   Given the way the case was put before the jury by the Crown, the applicant’s submission was that if the Court found the verdicts unreasonable in relation to Counts 5 and 7, the appropriate order would be to quash Count 1. This approach was conceded by the Crown to be appropriate. I have examined the manner in which the Crown put its submissions on Count 1 to the jury and agree that the Crown’s conditional concession is appropriate.

2. [168]

   However, given my conclusions in relation to Counts 5 and 7, this ground falls away.

Proposed Orders

1. [169]

   The orders I propose are:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.