Murray v R

1. [1]

   SIMPSON AJA & HARRISON J: The events that give rise to this application for leave to appeal occurred in the early hours of 26 December 2018 at the home of the complainant in a southern Sydney suburb. As a consequence of those events the applicant, Alan Murray, was charged with four counts of sexual offences, three of which were of sexual touching and one of which was of sexual intercourse without consent, offences created, respectively, by ss 61KC and 61I of the Crimes Act 1900 (NSW) (“Crimes Act”). Sections 61KC and 61I are to be found in Div 10 of Pt 3 of the Crimes Act, which Division deals with Sexual Offences Against Adults and Children. Since the date of the events in question amendments have been made to the legislation. The issues in this application are, of course, to be determined by reference to the provisions as they stood in December 2018.

2. [2]

   The applicant entered a plea of not guilty to each count. A trial took place in November 2020, at which the applicant was convicted on each count and was duly sentenced, to an aggregate term of imprisonment for 3 years commencing on 11 February 2021, with a non-parole period of 12 months that expired on 10 February 2022. The applicant was released at the expiration of the non-parole period.

3. [3]

   The applicant now seeks leave to appeal against each conviction. The sole ground on which he seeks to rely is that the verdicts are unreasonable and cannot be supported having regard to the evidence. Leave is required because such a ground involves questions of fact, or, alternatively, questions of mixed fact and law: Criminal Appeal Act 1912 (NSW), s 5(1)(b).

Relevant statutory provisions

1. [4]

   Section 61KC of the Crimes Act relevantly provided as follows:

2. [5]

   Section 61I provided (and still provides) as follows:

3. [6]

   Section 61HE, which, by subs(1), expressly applied (inter alia) to s 61KC and s 61I, explained the concept of consent. Relevant provisions were:

Unreasonable verdict

1. [7]

   The approach to be taken by this Court to a ground asserting the unreasonableness of a verdict of guilty is well established: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (“M”); MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (“Baden-Clay”); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (“Pell”).

2. [8]

   The principles, as originally stated by Mason CJ, Deane, Dawson and Toohey JJ in M at p 493, and repeatedly reaffirmed in the decisions mentioned above, are:

3. [9]

   Their Honours went on to say (at p 494):

4. [10]

   The court proceeds on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable, and examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt: Pell at [39] per the Court.

5. [11]

   Application of the principles has most recently been considered (in relation to a guilty verdict following trial by judge alone) in Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 (“Dansie”) in which a unanimous High Court (at [7]) stated the function of a court of criminal appeal when determining an appeal on the unreasonable verdict ground as:

6. [12]

   Three things are clear: the task of the appellate court is (i) to consider the nature and quality of the evidence, while (ii) paying due regard to the advantage enjoyed by the jury in observing the witnesses at first hand; and (iii) recognising the constitutional role of the jury in the determination of criminal guilt.

7. [13]

   It will therefore be necessary, in due course, to survey, in some detail, the evidence given in the Crown case, and the applicant’s response. For the moment a short synopsis will suffice.

The trial

1. [14]

   It was the Crown case that the applicant and the complainant had been acquainted with one another since school days, having attended the same high school, which each left in Year 11 in 2015. Both were part of an extended “friendship group”, consisting of about 9 male and 9 female members. The “friendship group” socialised regularly, and communicated via Facebook Messenger digital application.

2. [15]

   During the afternoon of Christmas Day 2018, both the complainant and the applicant attended a social gathering at the home of a member of the “friendship group”, TP. They left together at about midnight to go to the complainant’s home, which was nearby, and where the complainant lived with her parents and brother. The circumstances in which they attended the complainant’s home were the subject of some conflict in the evidence given by the complainant, and the evidence given by the applicant. It is not suggested by either that those circumstances involved any romantic intent. Both the complainant and the applicant agreed that the reason for the applicant’s visit to the complainant’s home was so that he could recharge his mobile phone (the battery of which was flat) so that he could order an Uber to take him to his home, some distance away. So much was undisputed, although there was a conflict as to the circumstances in which the applicant came to accompany the complainant to her home (the complainant said it was at the instigation of the applicant, who, effectively, invited himself; the applicant said he did so at the complainant’s invitation).

3. [16]

   Also not in dispute was that, on arrival at the complainant’s home, the complainant and the applicant went upstairs to the complainant’s bedroom, where they talked and played with a new puppy that the complainant brought from her parents’ bedroom, and that (while the applicant discreetly turned his back) the complainant changed some of her clothing. She was then wearing a sleeveless top, a bra and underpants.

4. [17]

   On the Crown case, the complainant then lay, face down, on the bed, and eventually fell asleep. She awoke to find the applicant’s hands in her underpants, one hand squeezing her right buttock. This, on the Crown case, constituted the first offence of sexual touching, the subject of count 1 on the indictment. The complainant did not respond, feigning sleep. Thereafter (on the Crown case) the applicant digitally penetrated the complainant’s vagina (giving rise to the count of sexual intercourse without consent, count 2 on the indictment) and performed two other acts of sexual touching, one by putting his penis into her left hand, and one by attempting (unsuccessfully) to insert his penis into her vagina (counts 3 and 4 on the indictment).

5. [18]

   The applicant gave evidence in the trial. As indicated above, apart from the circumstances in which the applicant came to accompany the complainant to her home, there was little dispute on the facts alleged by the Crown up to the point at which the complainant and the applicant were in the complainant’s bedroom. The applicant’s evidence was that he fell asleep with the lights on in the bedroom, having removed his shirt, shoes and socks, and then woke up, lying on the bed alongside the complainant, they facing each other, in “kind of a bit of an intimate moment in the morning”. They began kissing for a minute or two. His hands were on her back. He lowered them into the back of her underwear for “only a few minutes”. In total, the kissing and the touching went on for “maybe five minutes or so”. He ceased that activity because the complainant’s ex-boyfriend (J) was one of his (the applicant’s) closest mates, and he thought the encounter “was not such a good idea”.

6. [19]

   On the applicant’s evidence, no other activity of a sexual nature took place. The applicant said that he put on his shirt, shoes and socks, gathered his wallet and mobile phone, told the complainant he was going home because he wanted to wake up in his own bed, said goodbye to the complainant (to which she did not reply) and left. He ordered an Uber and went home. The applicant’s evidence was a denial of the conduct the Crown relied on to establish counts 2, 3 and 4.

7. [20]

   The applicant’s evidence that he had “lowered” his hands into the complainant’s underwear amounted to an admission of the conduct that constituted the first count of sexual touching. Contrary to a direction given to the jury by the trial judge, the applicant did not say that the complainant gave any indication, verbal or otherwise, that she consented to that conduct, nor that he believed that she consented (although that may have been an available implication of the evidence he gave). Nor was anything said to that effect in counsel’s final address.

8. [21]

   In circumstances where the applicant denied the conduct on which the Crown relied as constituting the remaining offences, no issue of consent, or belief in consent, arose. In respect of counts 2, 3 and 4, the issue for determination by the jury was whether the conduct had occurred. Resolution of that issue, in each case, depended significantly, but not entirely, on the jury’s assessment of the evidence of the complainant on the one hand and that of the applicant on the other, although, as will be discussed below, there was other evidence that bore upon the reliability or credibility of that evidence, and, of course, the applicant’s evidence was to be assessed on the basis that if it were accepted as representing a version of the facts that might reasonably be true, the Crown case would fail and the applicant would be entitled to be acquitted. The important point for present purposes is that the issue was limited to what physically happened in the complainant’s bedroom, and did not extend to the state of mind of either of the participants. That was so, notwithstanding that counsel representing the Crown commenced his final address by telling the jury that, in relation to count 1, the “central issue” was consent. That was based on the applicant’s own evidence that he had put his hands down the complainant’s underpants (although the applicant’s evidence did not admit “squeezing” of the complainant’s buttock). Counsel for the Crown told the jury that “the battleground issue for count 1” was, first, whether the Crown had proved, beyond reasonable doubt, that the complainant did not consent to that act, and, second, whether the Crown had proved beyond reasonable doubt that the applicant knew that the complainant did not consent. There the issues lay. No suggestion was made in defence counsel’s address that the complainant had consented to the conduct the subject of count 1 (or any other of the conduct alleged), nor that, even if she had not consented, the applicant believed, on reasonable grounds, that she had (Crimes Act, s 61HE(3)(c)).

9. [22]

   Nevertheless, the trial judge directed the jury, correctly, on principles of consent, and, as mentioned above, incorrectly (but favourably to the applicant) told the jury that the applicant had given evidence that he believed that the complainant was consenting to the first act of sexual touching.

10. [23]

    The issues for determination by the jury were thus clearly laid out: in respect of count 1, the only possible issue (although it was not adverted to by defence counsel) was whether the complainant had consented to the sexual touching, or whether the applicant may reasonably have been understood to have believed, on reasonable grounds, that she consented. (No suggestion was made to the effect that if the first incident had occurred as described by the applicant, it did not amount to “sexual touching” as defined in s 61KC of the Crimes Act). In relation to counts 2, 3 and 4 the issue was whether the Crown had proved, to the criminal standard, that the conduct the subject of each count had taken place.

11. [24]

    The jury retired to consider its verdict at 10.10 am on Friday, 20 November 2020. At some point that appears to have been about 2 pm on Monday, 23 November 2020, the jury sent the trial judge a note advising that they had reached a unanimous verdict on three counts, but were divided on one. The trial judge took verdicts (which were guilty) on counts 1, 3 and 4, and, with respect to count 2, directed the jury in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 71. At 3.37 pm having followed the procedure laid down in s 55F of the Jury Act 1977 (NSW), the trial judge took a verdict (of guilty) on count 2. It is not entirely clear whether that verdict was unanimous or by majority. That need not be further explored.

The appeal

1. [25]

   As indicated above, the sole ground on which the applicant seeks to rely is that the verdicts were unreasonable and could not be supported by the evidence.

2. [26]

   In order to perform the task mandated by M and the other decisions to which we have referred above, it is necessary to undertake a comprehensive survey of the evidence in the trial. As to the events of the evening in question, that evidence is principally – almost, but not quite, exclusively – that of the complainant and the applicant. It will therefore be convenient to begin by setting out, in some detail, their competing accounts. That will involve some repetition of what has been said above. Some further light is cast upon that evidence by the evidence of other witnesses, and some documentary material.

3. [27]

   The complainant gave an account of her relationship with the applicant. As indicated above, she said that they had been “acquaintances” at high school and both had left school in Year 11. Thereafter they became part of a “friendship group” of about 18 or 20 people who socialised on weekends and after work. They communicated by means of a “group chat” on a Facebook Messenger Application.

4. [28]

   When initially asked, the complainant said that she could remember only one “one on one” exchange with the applicant, that took place when they arranged that she would drive him to a work Christmas party. This was consistent with what the complainant told police when making a statement. In cross-examination the complainant confirmed that she was “confident that there were never a large number of messages” between herself and the applicant. Later, she was shown a document containing screen shots of private conversations between herself and the applicant, between 1 January 2018 and 25 November 2018. This document became Exhibit 1. The complainant accepted a proposition put to her that between 2015 and the end of 2018, she and the applicant had exchanged 1,128 messages. It may here be noted that the proposition put to the complainant was not supported by any objective or documentary evidence – Exhibit 1 contained only a fraction of that number of messages. (There does not, however, appear to be any dispute that the proposition that the complainant accepted accurately reflected the exchanges between the two.)

5. [29]

   The complainant gave evidence of the events of Christmas Day 2018. She said that on Christmas Eve one of the friendship group (TP) posted on Facebook Messenger an invitation to members of the group to drinks at his house the following day. With a number of others the complainant attended. The applicant was already present when she arrived. The group swam, played cards, ate and drank. The complainant consumed six “Vodka Cruisers” and another Vodka drink over a space of six hours, and rated her level of intoxication as “about a six out of ten”. At his request the complainant gave the applicant one of her Vodka Cruisers. This did not involve any romance or flirtation.

6. [30]

   At about midnight the complainant, who by then was suffering from a headache, decided to walk home. Two friends (JM and MJ) offered to drive her. The applicant was present and said that he would come with the complainant to her home to charge his phone and orders an Uber. It was not uncommon for friends of the complainant to “crash” on the lounge at her home (which was downstairs); the applicant was one of those who had done so in the past.

7. [31]

   JM and MJ drove the complainant and the applicant to the complainant’s home; they arrived at roughly 12.15 am. The complainant said that she and the applicant went upstairs to her bedroom. She had a new 11 week old puppy that she fetched from her parents’ (adjacent) room. The two sat on her bed and played with the puppy for a time. The complainant said that she ensured that the applicant was facing the wall, and changed into a sleeveless top. She was also wearing underpants and a bra. She was then lying face down on the bed and fell asleep. The applicant was beside her on the bed. She said that she thought she fell asleep at about 12.30 am and was asleep for “roughly two hours”, and woke to find that the applicant had his hands in her underpants. The room was “pitch black” because there were shutters on the windows. The applicant’s hand was on the complainant’s right buttock, which he squeezed for about 3 minutes. This was the basis for count 1 – a count of sexual touching without consent. The complainant said that she was lying face down on her bed with her right hand hanging over the bed, her left arm by her side, palm up.

8. [32]

   The complainant said that she did nothing: she was lying “extremely still to make it out as I was still asleep”. She was “scared” and “had anxiety” and that if she tried to stop the applicant, it would be “awkward”.

9. [33]

   The complainant said that the applicant proceeded to pull her underpants down below her buttocks and put his hand between her vagina and her anus (“butthole”). She heard the applicant move his hand away, lick his fingers, and put two fingers into her vagina, moving them in and out for what seemed like 5 or so minutes. This was the basis for count 2, the count of sexual intercourse without consent. The complainant remained “still”, and tried to control her breathing. She was crying and did not want the applicant to know that she was crying.

10. [34]

    She felt the applicant put his penis into her hand and tried to move her fingers to hold it. When he did this, the complainant “tried to sort of stop him from doing that, but again, not in a way that he would know I was awake” and clarified that she was “just moving [her] fingers to an unclenched position”. This was the basis for count 3 on the indictment, a count of sexual touching.

11. [35]

    The complainant said that the applicant attempted, about three times, to insert his penis into her vagina, and then gave up. She continued to lie still. The applicant’s penis did not penetrate her vagina. The attempts by the applicant to insert his penis into the complainant’s vagina were the foundation for Count 4, a count of sexual touching.

12. [36]

    The applicant then rolled off, put on his pants and went downstairs. The complainant could see this from the light of the applicant’s phone which he was using.

13. [37]

    The complainant went to the bathroom, washed herself, and returned to the bed. At 3.23 am she sent a text message to her best friend (MR). The message read:

14. [38]

    The complainant said that she did not consent to any of these forms of sexual activity.

15. [39]

    The complainant said that she heard the applicant returning to the room. She locked her phone so the light would not illuminate the room and the applicant would not know that she was awake. She said that the applicant returned to the room (she could see because his phone’s light was on), put on his shoes and shirt, retrieved his wallet, and went downstairs. She heard a car door close.

16. [40]

    At 7.06 am MR responded to the complainant’s text message, saying:

17. [41]

    The complainant met MR that afternoon and gave her an account of what had happened (although the complainant said that she thought she did not explain it very well because “I was crying on and off”).

18. [42]

    The complainant returned home and later told her parents what had happened. They contacted, and then met, police. Police attended the home and took possession of the complainant’s clothing. Later DNA testing established that the applicant’s DNA was located on the rear inside and the waistband of the underpants the complainant had been wearing.

19. [43]

    On 20 January 2019, at the instigation of investigating police, the complainant telephoned the applicant. The conversation that ensued was recorded pursuant to a warrant issued under the Surveillance Devices Act 2007 (NSW). The conversation was in the following terms:

20. [44]

    Given the applicant’s denial that the conduct the subject of counts 2, 3 and 4 had taken place, some of the cross-examination of the complainant was curious. It was put to her explicitly and repeatedly that she brought the puppy into the bedroom because she wanted to continue socialising with the applicant (a proposition she denied). While such a proposition may have been used to lay the foundation for an accusation that the complainant deliberately made a maliciously false complaint, counsel stopped short of putting such a suggestion to her, or to the jury in address. The nearest he came was to put:

21. [45]

    In re-examination the complainant explained that, when she answered that question, she was not sure what answer she had given was said to be false, and that, at the time, she had been stressed and upset. She maintained that the evidence she had given was true.

22. [46]

    In cross-examination the complainant agreed that, on 29 December, as part of the friendship group, she had attended a dinner at a restaurant (“Kellys”) at Miranda. She said that the applicant arrived after she did, and that she left on his arrival.

23. [47]

    The applicant’s account of the critical events was, in a number of respects, at significant variance from that of the complainant.

24. [48]

    He agreed that, initially, he and the complainant were, at high school, acquaintances, but said that as the friendship group:

25. [49]

    The applicant said that he would see the complainant “more than on one occasion every week”; some occasions were social events, some were “one on one”. He had been in the complainant’s home at least twenty times, and had stayed overnight “half a dozen times at least, maybe more”, sleeping on the lounge. He confirmed that Exhibit 1 represented personal messages between the two, starting in January 2018, and said that that sort of communication had started in 2015 and continued over three years, involving over 1,000 messages.

26. [50]

    The applicant said that on Christmas Day 2018 he attended the gathering, arriving at about 6.00 pm, and drank beer. At one point the complainant gave him a Vodka Cruiser because he was sick of drinking beer. He rated his level of intoxication at about “seven out of ten”.

27. [51]

    The applicant said that MJ was leaving the party, and the complainant was leaving also. His phone was dead and he told the complainant that he needed to recharge it so he could order an Uber to go home. He said that the complainant invited him to her home to recharge his phone. On arrival at the complainant’s home the complainant invited him upstairs to her bedroom to see the puppy, which she fetched from her parents’ room. He said that the complainant changed her clothes and he turned around: “obviously it’s the polite thing to do not to look”. They sat on the bed, played with the puppy and “just talked”. The applicant charged his phone on a charger in the bedroom. He said that “at some point, I fell asleep”. He had by that time taken off his shirt. The lights in the room were still on when he fell asleep. Some time later he woke up; it was still night-time; there was no light on in the room. The applicant said:

28. [52]

    The applicant said that the complainant was lying on her right hand side, facing him. He said:

29. [53]

    The applicant then said:

30. [54]

    The applicant said that he brought this activity to an end; he did this because the complainant’s ex-boyfriend, J, “was one of my closest mates …”. The applicant said that he told the complainant that “that was it and I just wanted to go home.” He said that the complainant asked him why he was leaving and he told her that:

31. [55]

    The applicant said that he put his shirt and shoes on, gathered his possessions and left. He said goodbye to the complainant but she did not respond. He ordered an Uber, and walked downstairs. The Uber had already arrived.

32. [56]

    The applicant said that the next time he saw the complainant was at Kelly’s restaurant at Miranda. The transcript records that he gave the date as “the 14th” (which we would take to be 14 January 2019) but the following question and answer suggest that it was in fact 4 January 2019 and “the 14th” is a transcription error. There is, in any event, some confusion about the date, but the event is recognisably the one about which the complainant was cross-examined, and about which other evidence was given. The applicant said that the complainant was at the restaurant when he arrived, that he said hello to her and he noticed nothing unusual or different. He said, however, that the complainant left the restaurant shortly after he arrived.

33. [57]

    The applicant gave evidence about the complainant’s telephone call of 20 January 2019. He said that he had been asleep, his mind was not very clear and he had not fully woken up by the time he answered the phone. He said that it was not true that (as he had said in the telephone call) he had no recollection of the events of Christmas night, but that he thought:

34. [58]

    The applicant went on to say:

35. [59]

    The applicant gave evidence of an encounter with JM at an Australia Day fireworks event. JM told him that the complainant had asserted that the applicant had sexually assaulted her. The applicant said that he responded:

36. [60]

    As a result of the conversation with JM, on 30 January the applicant sent the complainant a text message which read:

37. [61]

    The applicant expressly described as “false” the complainant’s evidence:

38. [62]

    MJ gave brief evidence, essentially confirming that she (with her then boyfriend, JM), had driven the complainant and the applicant to the complainant’s home at about midnight. MJ had been present at the Australia Day event, and had observed the conversation between JM and the applicant. She said:

39. [63]

    MR, the friend to whom the complainant had sent a text message at 3.23 am, gave evidence that she had met the complainant in the early afternoon of Boxing Day. She said:

40. [64]

    She then said:

41. [65]

    The complainant’s mother gave evidence that she worked on Boxing Day and did not see the complainant until she (the mother) arrived home after 6.30 pm. She said that she asked the complainant how her day was and the complainant:

42. [66]

    JM, who at the time was the boyfriend of MJ and a close friend of the complainant, confirmed that he and MJ had driven the complainant and the applicant to the complainant’s home. He gave evidence of the events of 29 December, and of Australia Day. He said that on 29 December he was at home but other of their friends had gone out for dinner to a restaurant at Miranda. The complainant was at the dinner but then called, sounding “quite distressed” and asked to be picked up from the restaurant. When he picked her up she was “quite distressed and quite upset”. She declined to respond to JM’s questions about what had happened. JM said that he then did not see the complainant again until Australia Day when there were drinks at his home to watch the fireworks. He said:

43. [67]

    JM said that after the fireworks he saw the applicant and his ex-girlfriend walking towards where he was, in the company of the complainant. He tried to stop the applicant from approaching and told him “that he couldn’t be around us right now”. He said:

44. [68]

    JM said that the reason given by the applicant for going to BS’s house was that an Uber (presumably to his own home) would be too expensive. BS later gave evidence that she and her family were away from home from Christmas Day until 27 December and that, therefore, the applicant could not have gone to her home.

45. [69]

    It was put to JM in cross-examination, and rejected by him, that he was mistaken in saying that the applicant told him that he left the complainant’s home to go to BS’s home. (In his evidence the applicant said that JM’s evidence in this respect was “just plain wrong” because the friendship group was so tight that when anyone went away everybody knew they were away.)

46. [70]

    Another witness, CA, gave evidence in the defence case. CA was a (female) friend of the applicant. She was present at the Miranda restaurant on 29 December 2018. The complainant was also present. CA said that the complainant told her that the applicant had “sexually assaulted” her. CA said:

47. [71]

    CA confirmed that the complainant said that the applicant was “touching her” but did not say how. In cross-examination CA said that the account she had given of what the complainant told her was the “exact words” used by the complainant.

48. [72]

    It was acknowledged by the Crown that the applicant had no criminal record.

49. [73]

    As set out above (at [23]) the issue in respect of counts 2, 3 and 4 was whether the applicant had engaged in the conduct alleged by the complainant. The issues in respect of count 1 were not so clearly defined. Although the Crown Prosecutor put to the jury that the only issue with respect to that count was consent, defence counsel made no reference to the applicant’s acknowledgment that he had placed his hands inside the complainant’s underwear. Certainly no suggestion was made that the complainant consented to that conduct.

50. [74]

    One theoretically possible issue in relation to count 1 was whether the applicant believed, on reasonable grounds (notwithstanding that the Crown proved that the complainant did not consent) that the complainant had consented to the sexual touching the subject of that count. It is on that basis that Fagan J would allow the appeal, in relation to all counts. That was not, however, an issue that was ever raised, even subliminally, on behalf of the applicant.

51. [75]

    A criminal trial is both accusatorial and adversarial. The parties are, and are entitled to, identify and define the issues to be litigated. In Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 (“Ratten”), in a frequently cited passage, Barwick CJ said (at p 517) of the criminal trial process:

52. [76]

    In Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46 (“Doggett”) at [1] Gleeson CJ said:

53. [77]

    Gleeson CJ returned to this theme in Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 (“Nudd”) at [9]; saying:

54. [78]

    It may be accepted that, notwithstanding these admonitions, a trial judge is under a duty to put to the jury, with adequate assistance, any matters in which the jury, upon the evidence, could find for the accused: Pemble v The Queen (1971) 124 CLR 107 at 118 per Barwick CJ; [1971] HCA 20; James v The Queen (2014) 253 CLR 475; [2014] HCA 6 (“James”) at [10]. That extends to any defence or partial defence that is open on the evidence; James at [31]; Baden-Clay at [62].

55. [79]

    The principles stated in Ratten, Dogget and Nudd have been reaffirmed by the High Court as recently as 2016, in Baden-Clay at [48]. In that case the respondent had been convicted in a jury trial of the murder of his wife. An alternative verdict of manslaughter, on four possible bases proposed by defence counsel, had been left to, and rejected by, the jury (see [60]-[62]). On appeal a further possible hypothesis was raised and accepted by the appellate court (see [3]). The scenario so hypothesised was inconsistent with the evidence given in the trial by the respondent (see [52]). Of this course, the High Court said:

56. [80]

    So it is in the present case. No submission was made to the trial judge that the jury ought to be directed, either with respect to count 1, or, notwithstanding the applicant’s outright denial of the conduct constituting counts 2, 3 and 4, with respect to those counts, that a defence of honest belief based on reasonable grounds might be left to the jury. With respect to counts 2, 3 and 4, such a defence would have been directly contrary to the sworn evidence given by the applicant that the conduct alleged by the complainant simply did not occur.

57. [81]

    Just as it is for the parties to define the issues to be litigated in a criminal trial, so it is for the parties to define the issues in an appeal, or in an application for leave to appeal. No ground of appeal in this case raised any issue concerning the potential for a defence of honest belief on reasonable grounds on the part of the applicant that the complainant consented, either to the conduct the subject of count 1, or to the conduct the subject of counts 2, 3 and 4; neither did any of the argument in support of the sole proposed ground of appeal. That possibility was raised for the first time in argument in this court, by the court. As in Baden-Clay, it would be wrong, in our firm opinion, to determine the application on that basis. It follows that we are unable to agree with the reasoning of, or the orders proposed by, Fagan J.

Were the verdicts unreasonable?

1. [82]

   A ground of appeal asserting that a verdict is unreasonable derives from s 6 of the Criminal Appeal Act 1912 (NSW) which relevantly provides:

2. [83]

   The tests to be applied by an appellate court considering such a ground have been set out above: (see [8]). To repeat, the court must ask itself:

3. [84]

   In Pell, the High Court proceeded on the basis that the jury had accepted the complainant’s evidence as “thoroughly credible and reliable”, but nevertheless, following careful scrutiny of the evidence, concluded that the “compounding improbabilities” in that case were such to have required the jury, acting rationally, to have entertained a reasonable doubt as to Archbishop Pell’s guilt (see at [119]).

4. [85]

   In this case, three features of the evidence were identified as indicative of similar frailties in the Crown case.

5. [86]

   The first, and most powerful, of these was what was described as the minimisation by the complainant of her relationship with the applicant. This was a reference to the complainant’s denial of any significant “one on one” communications or interactions with the applicant, a denial that, it was contended, was belied by the evidence of the numerous Facebook messages between the complainant and the applicant, some of them as recent as November 2018. It was hypothesised that, perhaps, the complainant so characterised the relationship because she was concerned that it would be misinterpreted to cast doubt on her claim that the sexual activity had been non-consensual (in anticipation of a defence that it had been consensual) – but, it was promptly pointed out, that was not the complainant’s evidence. That is, the complainant did not claim that, in anticipation of the applicant’s raising a defence of consent, she had played down the level of her interactions with him. On behalf of the applicant it was also hypothesised as equally possible that the complainant did not want to reveal the true nature of her relationship with the applicant because the messages could support an inference that she was (sexually) interested in the applicant, and that the Crown case did not exclude that possibility.

6. [87]

   One difficulty with that later proposition is that there is nothing in the Facebook messages that are in evidence (Exhibit 1) that indicate anything other than a platonic friendship between the two, and, although the complainant was extensively cross-examined to challenge her account of the relationship, it was not suggested that (prior to Christmas Day 2018) she had harboured any sexual interest in the applicant.

7. [88]

   Moreover, as was pointed out on behalf of the Crown, despite the number of messages over several months, throughout the period represented by Exhibit 1 (January to November 2018) only two instances of telephone conversations appear. This is not indicative of a high level of personal interaction. The Crown argued that, on proper analysis of the communications, the level of interaction between the two was overstated in the applicant’s submissions.

8. [89]

   The suggestion that the complainant and the applicant were more actively involved with each other than the complainant acknowledged was a prominent feature of the submissions put to the jury in defence counsel’s final address. Considerable weight was placed on what was characterised as a significant discrepancy between the complainant’s portrayal of the relationship and the reality as evidenced by messages contained in Exhibit 1. Indeed, the submissions on the subject were the opening gambit in the address, and are recorded in over four pages of transcript. Notwithstanding the force with which those submissions were put, the jury accepted the complainant as a credible and reliable witness as is evidenced by their verdicts. It cannot be thought that the jury overlooked or disregarded the messages or their importance in their assessment of the complainant’s credibility.

9. [90]

   The discrepancy, to the extent that it is a discrepancy, of course remains a factor to be taken into account in the assessment that this Court must undertake. There is force in the Crown’s submission to the effect that the Facebook messages do not indicate a level of interaction significantly higher than the complainant asserted.

10. [91]

    The second point made on behalf of the applicant concerned the accounts given by the complainant and the applicant about the light in the bedroom. The submissions in this respect are difficult to follow. Both the complainant and the applicant agreed that, at the time of the sexual activity, the light was off (the complainant said that the room was “pitch black”). Neither gave any evidence of how, when, by whom or in what circumstances the light was turned off. It was submitted:

11. [92]

    These submissions are more apposite to a defence of consent than to a denial of sexual activity; in circumstances where the applicant denied the occurrence of the conduct the subject of three counts, consent simply does not arise. It was never made clear how it was contended that, in circumstances where consent was not an issue, the circumstances in which the light was turned off had any bearing on whether the conduct the subject of the counts 2, 3 and 4 took place. How, when, by whom and in what circumstances the light was turned off is immaterial to the issues between the parties with respect to those counts. Nor is it clear what bearing that circumstance has on count 1.

12. [93]

    The third point made on behalf of the applicant is expressed as:

13. [94]

    The submissions continued:

14. [95]

    In submissions in support of the third point, it was expressly accepted that the trial judge gave a direction in accordance with Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, in which Brennan J, with whom Deane J agreed (both dissenting in the result) said at [11]:

15. [96]

    The complaint now made is not of failure by the trial judge correctly to direct the jury, but that that direction ought to have resulted in a reasonable doubt in the minds of the jury about the guilt of the applicant on all four counts. We do not agree. None of the submissions made provides any basis for departing from the jury’s assessment of the complainant’s evidence as credible and reliable. Our own assessment coincides with that of the jury.

16. [97]

    In this context, it is relevant to advert to other evidence that supported the credibility of the complainant, not least of which is the text message she sent to MR, at 3.23 am, asserting her belief that she had been raped, and the evidence given by MR and the complainant’s mother, each describing the complainant’s state of distress. This evidence was strongly corroborative of the complainant’s account. The accounts given by her to each of those witnesses maintained consistency.

17. [98]

    We have carefully considered the whole of the evidence. We are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of all counts on the indictment. The evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of the offences (Dansie at [7]).

18. [99]

    It follows that, while leave to appeal should be given, the appeal must be dismissed. None of the arguments advanced on behalf of the applicant is persuasive.

19. [100]

    FAGAN J: Alan Joshua Murray appeals against his conviction following trial by jury on four counts of sexual offending. Her Honour Judge Flannery SC presided at the trial, which was conducted between 16 and 23 November 2020. The indictment contained three counts of sexually touching MV, a female, contrary to s 61KC(a) of the Crimes Act 1900 (NSW) and one count of sexual intercourse with the same complainant without her consent and knowing that she was not consenting (s 61I of the Crimes Act). All four offences were alleged to been committed in the early hours of 26 December 2018 in the complainant’s home at Menai, a southern suburb of Sydney.

20. [101]

    There is only one ground of appeal:

21. [102]

    On 12 February 2021 the learned trial judge sentenced the appellant to an aggregate term of imprisonment of 3 years commencing on 11 February 2021 and expiring on 10 February 2024 with a non-parole period of 12 months that expired on 10 February 2022. Pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) the appellant was released to parole on 10 February 2022, before this appeal was heard. There is no application for leave to appeal against sentence.

Issues at trial

1. [103]

   At trial the appellant gave most attention in his defence to two issues. The first concerned the nature and extent of the physical acts that took place between himself and the complainant on the night in question. The appellant was aged 19 and the complainant was 20 at the time. They had attended high school together from the age of about 13 and had remained friends thereafter within a wider group of about 18 young people who regularly socialised. The appellant and the complainant had both been at a gathering on Christmas night at the home of one of their mutual friends and both of them became moderately affected by alcohol. It was common ground that shortly after midnight two other friends drove them from the gathering to the complainant’s house, where she invited the appellant to her bedroom to play with a puppy. They sat on her bed together, with the dog. The complainant then changed into night clothes and lay beside the appellant on the bed, talking. She fell asleep while the appellant was still there beside her.

2. [104]

   The complainant’s evidence was that she awoke at about 3:00am to find the appellant squeezing her right buttock. She said that he then digitally penetrated her, tried to enclose her hand around his penis and attempted penile intercourse. The complainant estimated that aspects of this activity occupied periods that “felt like” or “seemed like” so many minutes, totalling about 15-20. The appellant then abruptly ceased, got up and left the house soon after. The complainant said that she lay still and pretended to be asleep throughout the appellant’s intimate touching of her.

3. [105]

   The appellant’s version was that he also fell asleep and that when he awoke at about 3:00am he and the complainant were facing each other. He said it was an “intimate moment”, they kissed for a minute or two and he put his hands on her back and moved them down to her bottom, inside her underpants, for a few minutes. The appellant said that was the extent of the contact between them and that it lasted only five minutes or so before he thought “it was not such a good idea” and got up. He told the complainant he was going to his own house, then ordered an Uber and departed.

4. [106]

   The second matter upon which the appellant’s defence concentrated was a challenge to the complainant’s evidence that she did not consent to any intimacy. That was to a degree connected with the first question, of what intimacy actually occurred, because the appellant contended that the complainant reciprocated the initial kissing and that that was a manifestation of consent to so much of the sexual activity as he acknowledged, limited to contact of his hand on the complainant’s buttock as alleged in count 1. The complainant said they did not kiss.

5. [107]

   These direct conflicts of testimony about what occurred on the complainant’s bed and about whether the complainant consented to whatever occurred led defence counsel to pursue at trial several grounds of challenge to the complainant’s credit. The complainant was cross-examined concerning variances between her evidence and, on the other hand, statements that she had made to her friends, her mother and police. The credit attack included cross-examination about the degree of closeness of the friendship between the complainant and the appellant, particularly over the 12 months preceding the incident. The complainant’s evidence in chief conveyed an impression that their association was only as members of a larger social group whereas defence counsel sought to establish that they had extensive one-on-one communications and some in-person contact just between the two of them.

6. [108]

   This cross-examination, albeit directed to the complainant’s credit, brought forth evidence that was significant to how the appellant may have perceived the situation when he was invited by the complainant to her bedroom. The evidence of their interactions throughout 2018 bore upon whether the jury could be satisfied beyond reasonable doubt that the appellant knew the complainant was not consenting to whatever intimate contact took place between them in the early hours of 26 December 2018. I find it necessary to refer to the evidence in detail, with particular attention to those parts of it that are relevant to whether it was open to the jury to infer beyond reasonable doubt that the appellant knew the complainant did not consent. I regret that this leads to some duplication of identifying evidence that has been summarised or quoted in the judgment of the majority.

The evidence at trial

1. [109]

   The appellant and the complainant both left high school during year 11 in 2015. The complainant described their relationship at high school as “acquaintances” whereas the appellant said that they “became closer and closer” over their school years “as did everyone in that group”. Over the three years after they left school up to the date of the alleged offences the group of which the complainant and the appellant were part comprised nine young men and an equal number of young women, who socialised together frequently. About half of the group had attended the same high school. One medium of their socialising was by posting messages on a “group chat” on the Facebook Messenger application. From time to time all or some of them went out to dinner together or gathered at one another’s houses.

2. [110]

   On Thursday 13 December 2018 the appellant posted a message to the group requesting that someone drive him from his home at Burraneer Bay, near Cronulla, to a work Christmas party in north-western Sydney the following evening. The complainant agreed to do this. She said that it took “a few hours”. As described, the journey would have traversed the metropolitan area from one extremity to the other. “A few hours” would accord with the time required for the return trip. The complainant said that there was conversation between them in the car but no “romance”. The complainant left the appellant at the venue for his Christmas party and returned home. He later sent a message when the party was over requesting that she return and drive him home but she declined. In messages sent on 15, 20 and 21 December the complainant asked the appellant to transfer money to pay for the petrol she had used on the trip.

3. [111]

   On Christmas Day 2018 TP, a member of the social group, posted a message: “Drinks at mine. 4pm tomorrow”. TP’s house was in Menai, about one kilometre from where the complainant lived with her parents. The complainant arrived at TP’s house by Uber at about 6:00pm. There were about 10-15 members of the friendship group present, including the appellant. The appellant’s former girlfriend was not a member of the group but she was also there. The complainant remained at this gathering until about midnight, during which time she conversed with everyone present. The guests swam in a pool, consumed alcohol, played card games, listened to music and talked. The complainant spoke to the appellant during the evening but she said that there was no “romance or flirtation in that conversation”.

4. [112]

   In response to questioning by the Crown, the appellant said that he did not find the complainant physically or sexually attractive. He said that the nature of their relationship was that although there was flirtation between them, “there was never a romance behind it”. The appellant said that at the party on Christmas night he was not hoping for there to be romance between them.

5. [113]

   The complainant described her level of intoxication by midnight as “about a 6 out of 10”. She had a headache and she told some of the others that she was going to walk home. JM and his partner MJ offered to drive her. The appellant was present at this conversation. The complainant gave evidence that the appellant said he would come back to her house with her to charge his phone and to order an Uber, to which she replied, “No worries”. JM’s evidence was to similar effect. The appellant gave evidence that the battery of his phone was flat and that he had to recharge it in order to use the Uber application. The complainant’s house was not much closer to his own home than TP’s house but he said that he wanted to wait before booking an Uber, anyway, because the price would go down in the early hours of the morning. There was other evidence tending to suggest that the appellant was careful with his money. The appellant said that the complainant invited him to her house for this purpose. The jury may have regarded it as not significant whether she invited him to the house or merely acquiesced in him inviting himself.

6. [114]

   According to the complainant’s evidence her parents were “very chilled out” and “people crashed on my lounge all the time”. She said that the appellant had previously “crashed” at her house, “maybe two or three times on the lounge with other people staying over also”. The appellant said that he had stayed there as many as 20 times in the past. The complainant and the appellant accepted JM’s offer of a ride and were dropped at the complainant’s house at about 12:15am.

7. [115]

   The lounge room of the house was on the ground floor. The bedrooms of the complainant and her parents were on the first floor. In cross examination the complainant accepted that she understood the appellant was just going to charge his phone and then order an Uber, all of which could have been done in the lounge room downstairs with less likelihood of disturbing her parents who were asleep. However the complainant said that upon entering the house she invited the appellant up to her bedroom. The appellant said that he was invited up “to see the puppy”. The complainant went into her parents’ bedroom, which adjoined her own with a common wall, and picked up an 11-week-old puppy that the family had recently acquired. She brought the puppy into her bedroom and they sat together on her bed and played with it.

8. [116]

   Soon after, the complainant changed into her nightclothes, being a loose fitting sleeveless T-shirt, over her underpants and bra. The complainant said that she “made sure Alan was facing the wall” before she changed. The appellant said that when the complainant changed in his presence he turned away because, “obviously it’s the polite thing to do”. The complainant agreed in cross examination that thereafter they lay together on the complainant’s bed talking for about 30 minutes before she fell asleep. The complainant had plugged the appellant’s phone charger into a power outlet near the head of the bed. The complainant lay on the right-hand side of the bed, as viewed from the foot. The appellant said that he had never previously been alone in the complainant’s bedroom with her, or in any bedroom where she had changed her clothing in his presence.

9. [117]

   The complainant said that at some time between 12:30am and 1:00am she fell asleep. She agreed in cross-examination that up to that time she had not prompted the appellant about calling an Uber, or suggested that he should leave, although 30-40 minutes had elapsed since they arrived at her house. She said that when she fell asleep the appellant was still on the bed, the dog was still there and the lights were off. She did not recall who had turned them off. She said that she had never before been in that situation with the appellant, that is, alone with him, lying together on her bed, she in her nightclothes and with the lights off.

10. [118]

    In answer to the Crown the appellant denied that in going to the complainant’s house he was “trying to engineer a situation where [he] might be able to have some sexual activity with her”. The appellant’s evidence in chief was that when he fell asleep the lights were on in the room, he had his T-shirt off and was in his shorts only and the puppy was still on the bed. He also said there had been no conversation between himself and the complainant in her bedroom about him calling an Uber and leaving to go home. When cross-examined the appellant said that he took his shirt off “as it was a hot summer’s night and probably uncomfortable”. He said he was still planning to take an Uber back to his own house, that he did not intend to stay the night with the complainant but that he “must have just dozed off” while lying down.

11. [119]

    The complainant said that about two hours after she fell asleep she was lying with her left arm to her side and her right arm hanging over the edge of the bed. Her head was turned to the right. The appellant was lying on the left side of the bed. The complainant said that she was woken by feeling the appellant’s hand in her underpants, squeezing her right buttock. This constituted the first instance of sexual touching, charged in count 1. The complainant said that the top sheet and doona on the bed were not covering her but she did not claim that these had been removed while she was sleeping. The effect of the evidence was that she had fallen asleep lying on top of the bedding. She said that upon feeling the appellant’s hand touching her she lay “extremely still to make out as I was still asleep”. He continued to squeeze her buttock for about three minutes. When asked why she pretended to be asleep she said:

12. [120]

    In cross-examination the complainant said that while the appellant was initially touching her bottom she felt she would be “embarrassed to roll over and say no”. She gave these answers:

13. [121]

    The complainant said that the appellant then put his hand between her legs and touched the area between her vagina and anus. She said that she remained “as still as I could” and that she was “trying to keep my breathing very calm as I was crying and didn’t want him to know I was crying”. The appellant then moved his hand away, moistened his fingers, and inserted two fingers in her vagina. She said he moved his fingers in and out “for what felt like five or 10 minutes”. The complainant said that while this was occurring she was “laying still, crying and trying to control my breathing”. The alleged digital penetration was charged as sexual intercourse in count 2.

14. [122]

    The complainant said that during the alleged digital penetration she was still “trying to avoid the embarrassment of saying no”. When it was put to her that it must have been evident, from what she described, that the appellant was trying to engage her in sexual activity she initially answered, “No comment”. When the question was pressed she answered “No” and similarly denied that she realised the appellant was trying to engage her in sexual activity by the subsequent alleged acts, comprising counts 3 and 4. Those answers are irreconcilable with what the complainant told her friend MR (see [133] below), what she told her mother (see [134]) and what she told JM (see [140]). On the other hand they are consistent with her description of the events to CA (see [136]).

15. [123]

    The complainant said that the appellant next put his penis onto her left hand, which was positioned palm upward to her left side. She gave the following evidence:

16. [124]

    The complainant said that her neck became sore in the position in which she was lying, so she moved her right hand up from where it was hanging over the edge of the bed and placed it under the left side of her face. She said that she did this slowly in order not to let the appellant know that she was awake. The complainant said that the appellant at this stage placed his hands beside her hips and tried to raise himself and to “put his penis into my vagina”, presumably from behind because she did not say that she ever changed her position from lying face down. The complainant said that the appellant tried to penetrate “about three times and then he gave up”, while she kept still throughout. This evidence was relied upon as the third instance of sexual touching, count 4.

17. [125]

    The complainant gave the following answers under cross-examination:

18. [126]

    The complainant said that after the appellant “gave up”, he “rolled off me”, used his phone in some manner that caused the screen to illuminate for about one minute, then put on his board shorts and went downstairs. She said that she did not consent to any of the sexual touching or penetration that she described. With respect to sobriety, it is common ground that neither the complainant nor the appellant had consumed any further alcohol after midnight, that is, during the three hours before the intimate contact described by the complainant. The appellant said he was unaffected by the time he woke up. He said that he engaged in less extensive intimacy, as described above at [105].

19. [127]

    The complainant gave evidence that she had suffered from anxiety for 4-5 years. The evidence did not reveal whether this was a professionally diagnosed condition or how severely the complainant suffered from anxiety or how, if at all, it manifested itself in her behaviour. There was no evidence that the appellant knew the complainant suffered from anxiety or that he had witnessed any effects of anxiety upon her conduct.

20. [128]

    According to the complainant’s evidence she left her bedroom, crossed a hallway to a bathroom about 2-3 metres away, washed herself and then returned to her bed. She sent a text message to her friend MR, in these terms: “I think I just got raped”. Independent evidence showed that the message was sent at 3:23am. The complainant said that after sending the message to MR she heard the appellant coming back upstairs. She locked her phone so that the screen would be unlit and he would not know she was awake. The appellant re-entered the bedroom, put on his shoes and shirt, picked up his wallet and went downstairs. The complainant heard him leave the house and get into a car. An Uber receipt showed that the appellant arrived home at 4:02am. It was approximately a 35 minute trip.

21. [129]

    The appellant’s account of intimate contact with the complainant is summarised at [105] above. He said:

22. [130]

    The appellant said that the complainant’s ex-boyfriend was J. The evidence did not reveal how recently that relationship had ended. The appellant said that J was a very close friend, whose name he had tattooed on his own leg. He gave evidence to the effect that a factor contributing to him not wishing to continue the sexual contact with the complainant was that he reflected upon his friendship with J and upon the complainant’s and J’s previous relationship. According to the appellant, when he got up the complainant asked him why he was leaving and he told her:

23. [131]

    When asked why she used the word “think” in her message to MR at 3:23am, the complainant gave the following answers:

24. [132]

    The complainant slept on and off after the appellant had departed, feeling, as she described, “violated, confused, angry”. MR sent a text response at 7:06am requesting that the complainant “reply to this as soon as you can”. The complainant’s next message to MR was at 10:35am, as follows:

25. [133]

    MR replied immediately to ask “what time”. The complainant did not answer for nearly three hours, until 1:12pm, when she advised by text that she “fell asleep again”. She proceeded to make arrangements to meet. The complainant met with MR near to her workplace during the afternoon and gave an account of what had occurred between herself and the appellant, including the following:

26. [134]

    The complainant said that later the same day she picked MR up after work and spent part of the evening with her. The complainant then returned home. Later in the evening she started crying in her mother’s presence and gave her an account of what had happened, as follows:

27. [135]

    With her parents’ assistance the complainant contacted the detectives at Sutherland Police Station and met with them on 26 December. She made her first statement to police on 27 December 2018. The detectives arranged for the complainant to make a pretext call to the appellant that would be recorded by means of a surveillance device installed under warrant. In furtherance of those arrangements, on 16 January 2019 the complainant attempted to speak to the appellant while he was at work but no voice contact was made.

28. [136]

    CA, who was TP’s girlfriend, gave evidence of a conversation with the complainant at a restaurant in Miranda on the evening of 29 December 2018, as follows:

29. [137]

    CA said that she had not made any notes of the conversation at the time and that the first occasion on which she had been asked to recount the details of the conversation was when she had spoken to the appellant’s solicitor “a couple of months ago”, in 2020. She gave the following answers in cross-examination:

30. [138]

    On 20 January 2019 at about 10:55am the complainant spoke to the appellant on the phone. He sounded groggy and said he was tired. He gave evidence that when he took the call he had been asleep and had not “woken up fully”. The complainant asked, “What the hell happened between us on Christmas Day? […] When you came back to mine.” The appellant said that he did not remember anything. He said, “Well obviously something’s up” and asked, “Why, what happened?”. The complainant did not answer him and said she would speak to him another time.

31. [139]

    The appellant gave evidence that at the time of this call he did remember what had occurred but he gave the following explanation for having responded to the complainant as he did:

32. [140]

    JM gave evidence that at about 8:00pm on 26 January 2019 he and his girlfriend MJ picked up the complainant from her home and brought her to their house near Blaxland Oval. He said that she was “quite drunk” and that he took her aside to ask, “What’s been going on?”. JM said that the complainant gave the following account of what occurred on Christmas night:

33. [141]

    Later in the evening of 26 January 2019, JM was with the appellant at Blaxland Oval after watching some fireworks. According to the appellant, JM then told him that the complainant said he had sexually assaulted her. The appellant gave evidence that he was shocked and replied, “What the fuck? Why would she say that?”. JM’s evidence was that the appellant said “What? Why would she say that?” and that he appeared shocked and angry and that he denied the allegation emphatically. JM’s girlfriend, MJ, observed this encounter but did not hear what words were spoken. She described the appellant’s reaction in this answer:

34. [142]

    Both the appellant and JM gave evidence that when the complainant arrived at Blaxland Oval that evening the appellant wanted to approach her and try to resolve the allegation but JM restrained him. The appellant agreed with evidence given by JM that he had said something to the effect, “What if anyone else finds out?”. The appellant explained what he meant by that in the following answer:

35. [143]

    JM said that the appellant told him in this conversation that he had left the complainant’s house at 3:00am on Christmas Night to stay with another member of the group, a female referred to as BS. The appellant denied that he had said this. He gave evidence that he knew BS was away on holiday over Christmas and that all members of the group would have known that because they were all so close and aware of each other’s movements.

36. [144]

    At 1:36am on Wednesday 30 January 2019 the appellant sent the complainant the following message:

37. [145]

    In evidence in chief the complainant said that the only one-on-one communications with the appellant that she could recall, from prior to the incident, were by Facebook Messenger on 14 December 2018, concerning driving the appellant to his work party in Western Sydney. In cross-examination the complainant agreed that her statement to police made on 27 December 2018 included the following:

38. [146]

    In cross-examination the complainant agreed with the proposition that “at the outset, you had to provide the police with an impression that [the appellant] and you only had a very distant relationship”. She said that she did not recall a number of one-on-one communications with the appellant during 2018. A sample of these were put to her sequentially and, despite her claim not to recall them, they were independently proved. They included audio calls, transmissions of photos to the appellant on the complainant’s personal Facebook page and messages between the two of them on her personal Facebook Messenger account.

39. [147]

    In February 2018 the complainant loaned the appellant her car to enable him to drive to Gunnedah to visit his mother. In mid-March 2018 the appellant picked up the complainant and her mother from a concert at Homebush late in the evening. Each of these events was accompanied by a plentiful exchange of friendly and familiar text messages. During June 2018 the two of them exchanged numerous friendly messages concerning Snapchat, photographs and mutual friends. In September and November 2018 there were occasions when they exchanged similar one-to-one friendly messages concerning social contact with each other and with other members of their group. The communications referred to in this paragraph were put to the complainant in cross-examination and she acknowledged them but she said she had not recalled them when making her statement to police on 27 December 2018.

40. [148]

    When it was put to the complainant in cross-examination that on her personal account she had received 591 messages from the appellant over the three years preceding the incident and had sent 537 messages to him, she agreed that that was so. She was shown a schedule of the messages and said, “the evidence is in front of me”. However, she denied that she had knowingly misled police about the extent of direct communication between the two of them.

Principles governing the appeal

1. [149]

   The sole ground of appeal is framed on the words of s 6(1) of the Criminal Appeal Act 1912 (NSW) that the Court:

2. [150]

   The authoritative exposition of this ground in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 has recently been re-endorsed by Gageler, Keane, Gordon, Steward and Gleeson JJ in Dansie v The Queen [2022] HCA 25. That appeal concerned a finding of guilt by a judge who conducted a trial without a jury. The principles do not differ as between the two modes of trial. The following extract from Dansie v The Queen sufficiently states the law that this Court is bound to apply (some citations omitted):

3. [151]

   With respect to each count in the present case the jury were correctly directed by the learned judge that, if they found beyond reasonable doubt that the alleged act was committed by the appellant and that the complainant did not consent to it, then in order to convict they would also have to be satisfied beyond reasonable doubt that the appellant knew the complainant did not consent. They were instructed in accordance with s 61HE(3) of the Crimes Act, as in force at the date of the alleged offence, before its replacement by s 61HK with effect from 1 June 2022. I repeat the terms of the applicable sub-section, for ease of reference, together with sub-s (4):

4. [152]

   In accordance with s 61HE, the learned trial judge directed the jury that the element of knowledge of non-consent would be established in any of the following circumstances:

   1. (1)

      If the jury were satisfied beyond reasonable doubt “that he actually knew that the complainant was not consenting”.

   2. (2)

      If the Crown had proved beyond reasonable doubt “that he was reckless as to whether the complainant consented”, either because (a) “he simply failed to consider whether or not the complainant was consenting at all, and just went ahead with [his actions] even though the risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity if he had turned his mind to it” or (b) “he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not”.

   3. (3)

      If the appellant “did have an honest belief in consent” but the Crown had proved beyond reasonable doubt “that there were no reasonable grounds for believing that the complainant consented to” the acts comprised in the relevant count. The Crown “must eliminate any reasonable possibility that the accused did honestly believe on reasonable grounds that the complainant was consenting”.

5. [153]

   Much of defence counsel’s closing address to the jury was devoted to questioning the complainant’s credit on the issues of how far the sexual activity progressed and whether the complainant consented to the limited contact alleged in count 1, which the appellant agreed had occurred. The address included arguments as to why the jury should have a reasonable doubt as to whether the complainant did not consent to whatever took place between her and the appellant.

6. [154]

   With respect to the acts of the appellant that the jury might find proved, there was no direct evidence that the appellant knew the complainant did not consent, within the extended concept of knowledge provided for in s 61HE(3) and explained in the summing up. The element of knowledge of non-consent depended wholly upon inference from circumstances. Defence counsel did not offer an analysis of how the evidence bore upon that question, assuming that the jury accepted the complainant’s evidence about the extent of the acts and her lack of consent. Counsel did not concede the element of knowledge of non-consent. The jury had to be satisfied of that matter beyond reasonable doubt in relation to each count.

7. [155]

   In submissions on the appeal the appellant advanced his argument that the verdicts are, in the words of s 6(1) of the Criminal Appeal Act, “unreasonable, or cannot be supported, having regard to the evidence” primarily by reference to claimed deficiency of proof of the physical acts alleged against him. But the ground must be upheld if the evidence concerning any element of the offences was insufficient for it to have been open to the jury to find that element proved beyond reasonable doubt. I have concluded that the evidence concerning knowledge of non-consent was not sufficient in nature and quality to eliminate any reasonable doubt on that element. The jury’s verdicts of guilty were “unreasonable, or cannot be supported, having regard to the evidence” in this respect.

8. [156]

   The appellant is not precluded from succeeding on this basis by reason of the way his defence was conducted at trial. His evidence of mutual kissing immediately before and during the admitted conduct of count 1 was directed to rebutting knowledge of non-consent with respect to that matter. With respect to counts 2-4 he did not expressly deny that he knew the complainant was not consenting because he disputed that any of the conduct in those counts took place. The limits of his own evidence concerning this element did not obviate the necessity for the jury to be satisfied of it with respect to each count if they were to return verdicts of guilty. The element arose for determination from the appellant’s pleas of not guilty and upon the whole of the evidence led by the Crown. It had to be left to the jury irrespective of the limits of the accused’s evidence and irrespective his counsel not having dealt with the issue in closing address.

9. [157]

   This was correctly recognised by the learned trial judge. In a succinct summing up of 29 pages, her Honour devoted 2½ pages to the element of knowledge of non-consent concerning counts 1, 3 and 4 (sexual touching) and a further 2 pages to that element with respect to count 2 (sexual intercourse by digital penetration). On counts 1,3 and 4 her Honour directed the jury in these terms as to the third way in which knowledge of non-consent might be proved (s 61HE(3)(c)):

10. [158]

    On count 2 her Honour elaborated this third pathway to finding that the element of knowledge of non-consent was proved beyond reasonable doubt, in the following terms:

11. [159]

    As her Honour’s summing up correctly recognises, proof of knowledge of non-consent, including by the third pathway of proving absence of honest belief and/or absence of reasonable grounds for belief, was not a matter of defence that had to be affirmatively introduced by the appellant at trial, either by adducing affirmative evidence or by submitting argument. No such conduct in defence, to raise the issue, was a necessary precondition to the jury being directed upon it. The appellant makes no complaint about the summing up. Consideration of his unreasonable verdict ground by reference to the capacity of the evidence to prove knowledge of non-consent, including by the third pathway, does not involve introducing on the appeal a matter that was not in issue at the trial by reason of any forensic choice of the appellant’s counsel. As an element of each offence that had not been conceded, knowledge of non-consent was in issue.

12. [160]

    In Ratten v The Queen, Doggett v The Queen, Nudd v The Queen and many other authorities there appear firm statements of principle concerning an accused person’s choice of the grounds upon which he contests a charge at trial, the extent to which he is bound by forensic decisions made on his behalf by counsel and the limits that such choices and decisions place upon what may be argued on appeal. Ratten v The Queen concerned choices with respect to the calling of evidence. Doggett v The Queen involved a decision not to seek a direction in accordance with Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60. Nudd v The Queen concerned an appellant who claimed that his trial counsel had incompetently addressed the jury upon a misunderstanding of the applicable law and had failed to take proper instructions from him or to call him. The principles expressed and illustrated in those cases do not in my view preclude this Court from assessing, in accordance with M v The Queen, whether evidence tendered in support of one element of an offence – that element not having been admitted – was sufficient for it to have been open to the jury to find the element proved.

13. [161]

    In considering a ground of appeal pursuant to which it is said that it was not open to a jury to find a circumstantial Crown case proved beyond reasonable doubt, the Court cannot propound a reasonable possibility consistent with innocence that does not arise upon the evidence in the trial and that is inconsistent with an affirmative explanation of circumstances given by the accused in evidence: The Queen v Baden-Clay. The reasonable possibility that I consider was open and to which the jury should have given effect is a composite of the possibilities that the applicant did not know “that the alleged victim [did] not consent to the sexual activity” (s 61HE(3)(a)), that he was not “reckless as to whether the alleged victim [consented] to the sexual activity” (par (b)) and that he may have honestly believed the complainant consented and may have had “reasonable grounds for believing that the alleged victim [consented] to the sexual activity” (par (c)). This composite of possibilities arose from the whole of the evidence and was not inconsistent with the appellant’s case. If the jury disbelieved him in his denial of the conduct in counts 2-4, they were obliged to put that evidence to one side in accordance with De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 and consider such other evidence, relied upon by the Crown, as they accepted. None of the appellant’s evidence stood in the way of the jury recognising the reasonable possibility that he did not know the complainant was not consenting. There is no impediment to that possibility being acknowledged on appeal as one that the jury could not exclude.

Consideration of the evidence concerning knowledge of non-consent

1. [162]

   It was beyond dispute that these two young people were school friends who had grown up together from early teens and who had maintained close, frequent, comfortable social contact with each other after leaving school. Neither was in a romantic relationship with a member of the opposite sex at the relevant time. Both had broken off such relationships before the evening in question. Each of them knew that the other was presently unattached. On this night the appellant was invited by the complainant to come to her bedroom, in the middle of the night, to sit with her on her bed and play with a pet. The purpose that had brought him to her home, that of charging his phone and waiting for an Uber, did not require that the complainant should take him to her bedroom. The appellant had never before been invited by the complainant to spend time in her company in that intimate setting. The intimacy was accentuated by the complainant changing into night attire in the appellant’s presence, then lying down beside him on her bed, without a word of request that he should leave, and then going to sleep next to him with the light out.

2. [163]

   For the purpose of considering the Crown’s circumstantial case on knowledge of non-consent, I assume that the complainant did not in fact intend to take part in sexual activity with the appellant when she invited him to her bedroom and lay down with him. I make no criticism of her conduct and attribute no fault. Notwithstanding the innocence, inadvertence or naivety with which this may have occurred, in my assessment on the whole of the evidence there was at least a reasonable possibility that, after both of them had fallen asleep in that context and atmosphere, when the appellant awoke approximately two hours later he may have thought the complainant would be receptive to intimate contact. The whole prelude, as recounted above, constituted reasonable grounds for him to believe honestly that that would be so. The reasonable possibility that he had such an honest belief on reasonable grounds to supported could not, in my view, be excluded beyond reasonable doubt on the evidence in the case. The same circumstances, by which the appellant came to be waking up beside complainant on her bed, was similarly an insurmountable impediment to the jury drawing an inference beyond reasonable doubt that the appellant must have acted with advertent or inadvertent recklessness (s 61HE(3)(b)) in commencing and then continuing sexual contact.

3. [164]

   As described by the complainant, the appellant’s initial contact by his hand upon her bottom was consistent with him sounding out whether she felt a sexual interest. Given the undisputed circumstances in which the complainant had lain on her bed and gone to sleep with him beside her, the jury could not exclude the reasonable possibility that the appellant honestly believed he had her implicit consent at least to touch her in a way that would test her willingness to go further. On the complainant’s own evidence she did not then tell the appellant to stop, or push his hand away, or sit up. It was not open to the jury to infer to the exclusion of any other reasonable possibility that her lack of reaction must have conveyed to the appellant that she did not consent, either to his initial touching or to anything more.

4. [165]

   As between two young people so completely familiar with each other, it was not open to the jury to find that the only reasonable conclusion from the appellant’s continued sexual conduct while the complainant lay still and silent was that he must have interpreted her passivity as either rejection or unwilling submission. What the complainant described to the jury was in the nature of moderate foreplay by the appellant. They knew each other very well. There was no evidence that the appellant had on any prior occasion shown physical or sexual aggression towards the complainant. The evidence overall showed that their friendship was respectful. An illustration was the appellant turning away when the complainant changed into her nightclothes. So far as he knew, on uncontested evidence, the complainant was entirely comfortable and confident with him.

5. [166]

   The jury could not exclude that the appellant would have thought that, had the complainant wished him to stop, she knew him well enough to realise that all she had to do was to say so, or to gesture. Indeed, she gave evidence that she did know that he would stop on her word. There was no basis in the evidence upon which it could be concluded that, when the complainant lay still and silent under the appellant’s progressive sexual contact, her lack of response must have signified to him an attitude of non-consent that she was unable to express because of fear or reserve.

6. [167]

   None of this is to suggest that knowledge in an accused that a complainant is not consenting can only be established by evidence of physical resistance or oral protest. This case turns on its own unusual facts. As the complainant acknowledged, she knew the appellant would desist at her word. From their long familiarity with each other he would have expected that she knew she could stop him by the slightest signal of rejection. Her lying still and pretending to be asleep could only convey non-consent if it went on so long that it became apparent to the applicant that she was feigning and was actually awake but not interested. The jury had no basis for inferring beyond reasonable doubt that that realisation must have dawned at any time before the applicant ceased his physical advances.

7. [168]

   On the assumption that the jury accepted the complainant’s evidence that she did not, in fact, consent to any of the accused’s acts, her lying completely still was a surprising way of dealing with the situation. The jury could not reasonably exclude the possibility that the appellant found her lack of reaction consistent with acceptance. They could not reasonably find it inescapably indicative to the appellant of lack of consent. There is no standard of responsiveness of a sexual partner, short of which it must be apparent to the active party that the other is not consenting. The appellant had no prior sexual experience with the complainant so the jury had no basis for inferring beyond reasonable doubt that he must have immediately interpreted her lack of reaction as rejection.

8. [169]

   It was open to the jury to infer that the complainant’s lack of reaction when the appellant engaged in sexual touching and digital penetration may have been attributable, in some measure, to the anxiety that she said she had suffered for 4-5 years. However, as earlier noted, there was no evidence that the appellant was aware of her underlying anxiety. The jury had no evidentiary basis for inferring that the appellant must have recognised in her unresponsiveness a lack of consent coupled with an anxious inability to communicate.

9. [170]

   Further, the complainant did not suggest to the jury that when she lay still under the appellant’s attentions, she did so in a rigid manner that might have suggested stress or hostility. On the contrary, she described having kept still in a controlled fashion, regulating her breathing and moving her hand slowly and discreetly to a position where it would make her head more comfortable while he continued. Her evidence was that she refrained from moving or speaking only because it would be “awkward” and “embarrassing” to tell the appellant to stop. The complainant made inconsistent prior statements about the manner in which she lay still, as follows:

10. [171]

    I hold a doubt, which I consider reasonable, concerning whether the appellant knew of the complainant’s non-consent, according to any of the extended concepts by which such knowledge may be proved. My doubt does not arise from an assessment of the credit of the witnesses or from any aspect of the evidence in relation to which the jury would have had an advantage from being present throughout the trial. It arises from inherent limitations of the inferences that may be drawn from the complainant’s evidence at its highest and from uncontroversial surrounding circumstances. I consider that the doubt I hold about this element is one that a reasonable jury ought to have experienced. I conclude that there is a significant possibility that the trial of the appellant resulted in the conviction of an innocent person.

11. [172]

    To reiterate, in the language of the High Court’s judgments, assuming that the jury were satisfied to the requisite standard that the appellant committed all of the alleged acts, in the sequence and in the circumstances that the complainant described, and that she did not consent, the evidence was in my view not “sufficient in nature and quality to eliminate any reasonable doubt” (Dansie v The Queen at [7]) as to whether the appellant knew that she did not consent, in any of the senses provided for in s 61HE(3). Having regard to what I see as the insufficiency of the Crown’s necessarily circumstantial case on this element, “making [my own] independent assessment of the evidence” (M v The Queen (1994) 181 CLR 487 at 492) I consider “that upon the whole of the evidence it was [not] open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (M v The Queen at 493). The jury, assessing the circumstantial evidence reasonably, ought to have recognised a reasonable possibility that the appellant did not have knowledge of non-consent by any of the three alternative pathways in s 61HE(3).

12. [173]

    I would have the Court make the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Allow the appeal.

    3. (3)

       Quash the appellant’s conviction in respect of all counts and enter verdicts of acquittal.

    4. (4)

       Quash the sentence imposed on 12 February 2021.