Ellingford v R

1. [1]

   N ADAMS CJ at CL: I agree with the orders proposed by Price AJA for the reasons provided. I wish to make some additional observations regarding both the circumstances in which a Liberato direction ought to be given and the relevant principles underlying his Honour’s conclusion that ground 1 is not established.

2. [2]

   The purpose of a Liberato direction is to clarify and reinforce directions regarding the onus and standard of proof in so called “word against word” trials. The source of the direction is the following passage from Brennan J’s dissenting reasons in Liberato v The Queen (1985) 159 CLR 507 at 515; [1985] HCA 66:

3. [3]

   In De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12] (“De Silva”), the High Court considered whether the failure to give a Liberato direction caused the trial to miscarry in a trial in which the prosecution case was dependent upon acceptance of the complainant’s evidence beyond reasonable doubt. The Court was satisfied that the trial did not miscarry as the jury was appropriately directed as to the onus and standard of proof. The Court was satisfied that it had been made clear to the jury that it had to be satisfied beyond reasonable doubt of the complainant’s reliability and credibility in order to convict the accused: see at [31]-[36]. It was also clarified in De Silva that the applicability of the Liberato direction is not limited to trials in which the accused gives sworn evidence; it also arises for consideration in cases where the accused has given a version of events, for example in a recorded interview with police: see at [11].

4. [4]

   The applicant’s case was somewhat unusual. It was a significant part of the Crown case that the complainant was substantially intoxicated. In the circumstances of this trial, it was not a case of “competing versions”; there were aspects of the applicant’s version which the Crown relied upon. Thus, even if the jury concluded that all or parts of the applicant’s version of what happened in the bedroom might be true, that would not necessarily result in an acquittal.

5. [5]

   The trial judge was alert to the potential for confusion should a full Liberato direction be given at the applicant’s trial (see below at [67] and [68]). The sexual assault the subject of the trial allegedly occurred on 25 December 2021. The relevant statutory provisions included s 61HE(4) of the Crimes Act 1900 (NSW) (now repealed) which provided that there could be no consent where, inter alia, the accused had no reasonable grounds to believe that the complainant consented. A further potential for confusion should a full Liberato direction be given arose from the fact that s 61HE(4) of the Crimes Act (now repealed) provided that, when determining whether consent exists, the jury must look at all relevant circumstances including any steps the accused took to ascertain whether consent existed, but it could not consider the accused’s self-induced intoxication. Thus, the jury was required to consider the question of the applicant’s reasonable grounds for believing the complainant was consenting on the basis that (contrary to his evidence) he was not intoxicated.

6. [6]

   The trial judge tailored his directions so as to emphasise the evidentiary burden which the prosecution bore whilst avoiding the potential to confuse the jury with a full Liberato direction which did not sit easily with the circumstances of this case. His Honour did so with the concurrence of the applicant’s counsel at trial.

7. [7]

   There was nothing in the summing up which could have left the jury with the impression that its verdict turned on a choice between the complainant’s evidence and the applicant’s evidence. That is the risk that the Liberato direction is directed at overcoming.

8. [8]

   PRICE AJA: On 26 April 2024, following a trial in the District Court at Sydney before Pickering SC DCJ (“the trial judge”), the applicant, Storm Travis Ellingford, was found guilty by a jury of one count of sexual intercourse with the complainant without consent, knowing that she was not consenting between about 8pm on 25 December 2021 and 1am on 26 December 2021, contrary to s 61I of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 14 years imprisonment with a standard non-parole period (“SNPP”) of 7 years.

9. [9]

   On 18 June 2024, the applicant was sentenced by the trial judge to a term of imprisonment of 7 years, with a non-parole period (“NPP”) of 4 years and 6 months, commencing on 24 April 2024 and expiring on 23 October 2028. The applicant is eligible for release to parole on 23 October 2028.

10. [10]

    The applicant seeks leave to appeal against his conviction and sentence. The notice of appeal identifies the following two grounds of appeal against his conviction:

    1. (1)

       Ground 1: A miscarriage of justice was occasioned by the trial judge giving a deficient Liberato direction.

    2. (2)

       Ground 2: A miscarriage of justice was occasioned by the trial judge not giving directions on the drawing of inferences.

11. [11]

    The applicant relies on a single ground of appeal against his sentence; that the sentence is manifestly excessive.

12. [12]

    The applicant requires leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), as the grounds of appeal do not involve a question of law alone. The applicant also requires leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), as no objection was taken at trial nor any request for further directions sought by the applicant’s trial counsel in relation to the trial judge’s directions given to the jury.

13. [13]

    The applicant filed a Notice of Intention to Appeal on 27 June 2024. However, the Notice of Appeal was not filed until 17 September 2025, and is outside the 12 month period during which the Notice of Intention to Appeal had effect: rr 3.1(3), 3.5(2), 3.5(5) of the Supreme Court (Criminal Appeal) Rules. Therefore, the applicant requires an extension of time as the appeal was filed out of time: s 10(1)(b) of the Criminal Appeal Act; r 3.5(5) of the Supreme Court (Criminal Appeal) Rules. An affidavit of the applicant’s solicitor, Richard Cummins, sworn on 12 September 2025 has been filed in support of an extension of time which establishes that the delay was not the applicant’s fault. The Crown does not oppose leave to appeal out of time being granted. Leave should be granted.

A summary of the evidence at trial

1. [14]

   As the focus of the conviction appeal is on the trial judge’s directions, it is unnecessary to recite all of the evidence at trial. What follows is a summary of some of the evidence that is of significance to the grounds of appeal.

2. [15]

   It was the Crown case that the applicant had sexual intercourse with the complainant without her consent during a Christmas party held in an apartment in Sydney on the night of 25-26 December 2021. At that relevant time, the applicant and the complainant both worked at the same business and the party was organised by one of their work colleagues. The names of the witnesses have been anonymised.

3. [16]

   It was not in dispute that the applicant had penile vaginal intercourse with the complainant in a bedroom of the apartment during the party. The key issues at trial were whether the Crown could prove beyond reasonable doubt that the complainant did not consent to sexual intercourse and that the applicant knew that the complainant did not consent.

4. [17]

   It was the applicant’s case that the complainant was conscious and awake, that she initiated the sexual intimacy with him and that she was a fully consenting participant in the acts of sexual intimacy including penile vaginal intercourse.

5. [18]

   The complainant gave evidence that as of December 2021, she and the applicant had been working together at the same business for about four years and met during orientation on the first day she began working there. The complainant’s evidence characterised them as having a professional work relationship and that she considered the applicant to be a friend. While the relationship between them was primarily work-related, the complainant described that the applicant had expressed affection for her and said odd things from time to time such as calling her “my favourite” and “sweetheart”. The complainant also said she knew that the applicant liked her in a romantic way, but that there had been no intimate or romantic relationship between them of any kind.

6. [19]

   On 25 December 2021, the complainant and the applicant, along with a number of other work colleagues, attended the Christmas party at an apartment in Sydney. The apartment was described as a “studio-style hotel room” and consisted of a living area, a small kitchen, a bathroom and a bedroom, which was separated from the living area by a sliding door. The party was not work-related and was organised by HN, referred to as “Eddy”, who was also working at the same business and knew both the complainant and the applicant. The complainant stated that there were alcoholic drinks and finger food provided at the party.

7. [20]

   The applicant arrived at the apartment around 4 or 5pm, and the party started at about 5pm. The other work colleagues who also attended the party included MM, JB, Eddy, AM, AH, LP, RB and a person named Laura. There is video footage of the party recorded by the complainant contained in Ex 2, which shows the guests socialising in the living area, listening to music and dancing, and also depicts Eddy opening a bottle of champagne.

8. [21]

   The complainant’s evidence was that at about 7pm, before going to the party, she had taken pregabalin (Lyrica) and Diazepam tablets which were prescribed to her for shingles. She arrived at the party around 8:30pm, by that time she had not consumed any alcoholic drinks, and she had also not eaten any food. The complainant stated that the party was the first time that she and the applicant had spent time together outside of work hours.

9. [22]

   The CCTV recording in Ex 7 shows that the complainant left the party at about 1am on 26 December 2021. Accordingly, she stayed at the party for a duration of up to 4.5 hours. This time included a period where she either fell asleep or passed out and the applicant having sexual intercourse with her.

10. [23]

    During the party, the complainant said she drank a lot of alcohol, mainly free-poured mixed Vodka and Sprite drinks and at least one glass of sparkling wine. The complainant said that between her arrival at the party around 8:30pm and the time she fell asleep or passed out, indicated as approximately some time before 1am, she had consumed in excess of 10 alcoholic drinks. In her evidence, the complainant described herself as never having been “so legless” in her life, which she explained as becoming heavily intoxicated to the point where she was not coherent, slurring her speech and unable to stand up or sit properly.

11. [24]

    Due to her level of intoxication, the complainant said she had a limited recollection of the events that took place at the party. However, she recalled certain aspects of the events of the night, which included kissing the applicant consensually at one stage, falling over a few times in the bathroom, wanting to go home, and then waking up in the bedroom to the applicant having penile vaginal intercourse with her.

12. [25]

    At some point during the party, the complainant along with the applicant and MM, played a card game at a table in the living room. The complainant said she remembers drinking Vodka and not being able to play properly as she was intoxicated. She recalled when sitting at the table that the applicant had put his hand on her upper thigh and accepted there was a consensual kiss that occurred between them. In cross-examination, she said that there was more than one kiss but did not recall how many. However, she agreed that the continued kisses were not just a peck on the cheek.

13. [26]

    When the complainant was asked about what had happened when playing cards at the table and kissing the applicant, she gave evidence that “[u]nder any other circumstance, I would not have kissed him if I was not drunk … I was really drunk … I’ve never been so legless in my life … [a]nd I just kept saying, ‘I need to go home’”. She was also asked why the kiss eventuated and if anyone was trying to get her and the applicant to be together. In response, the complainant gave evidence that she remembered Laura was trying to act as a matchmaker, and suggested it was possible that Laura could have encouraged them to kiss by saying “[w]hy don’t you two kiss … [t]here might be some connection”.

14. [27]

    As to what happened in the events following them being at the table, the complainant said that she did not remember the time between having fallen off the chair and when the applicant picked her up and assisted her to go to the bathroom. She was only able to remember being in the bathroom and thinking that she needed to go home. There was evidence that the applicant had helped her to the bathroom, and they remained in there for around 10-15 minutes. It was put to the complainant in cross-examination that during this time, she kissed and cuddled the applicant in the bathroom. In response, the complainant said she did not recall doing so, but contended that she could neither agree nor disagree, as she had no recollection of what occurred.

15. [28]

    The complainant said that she woke up on the bed, “with [the applicant] on top of [her] and inside [her]”. She recalled that she felt “his dick” inside her vagina. In response to whether she had screamed when the applicant was penetrating her, the complainant said that she did not remember. Her recollection was that she was dissociated when looking up at the ceiling and realised her dress was around her waist, but had no memory of the applicant taking her underwear off or if he had put a condom on. In further evidence, the complainant said that when the applicant was on top of her with his penis in her vagina, she “froze” and felt like she was “in shock” and was unable to move.

16. [29]

    The complainant’s account of the events in the bedroom was that she did not remember if she started kissing the applicant and whether she said to him “[c]an I move your hand to a better location”. She had no recollection of guiding the applicant’s hand down to her crotch area and saying to him “I want to be with you ... [d]o you want to be with me”. The complainant did not recall the applicant stating “[y]es, I really like you”, and asking if she needed a condom. She said that she did not remember pulling the applicant’s pants down and performing oral sex on him, and had no recollection of the applicant getting a condom and seeing him put the condom on, and then having sexual intercourse for about 10-15 minutes. She also said she did not remember during sexual intercourse, the applicant saying “[c]an we change positions … [c]an you hop on top now because I’m tired”, that she then agreed, rolled over, got on top of him and they continued having sexual intercourse, and during this time she was kissing him on the lips.

17. [30]

    The complainant disagreed with the suggestion that she wanted to have sexual intercourse with the applicant and stated that he took advantage of her, and that she did not consent to having sexual intercourse with him. The complainant said that when leaving the party, she did not tell anybody about what had happened.

18. [31]

    The complainant gave evidence that sometime after leaving the bedroom, she recalled being taken downstairs and getting put into an Uber home. Exhibit 7 contained four CCTV recordings from the lobby of the apartment building and an area outside the building. This footage depicted the complainant, the applicant and MM and showed the following:

    1. (1)

       the applicant holding the complainant from behind and supporting her weight under her armpits with MM walking in front of them as they headed towards the exit; and

    2. (2)

       from outside the apartment building, the applicant continuing to hold the complainant from behind and supporting her weight under her armpits as they stood waiting for the Uber vehicle. Whilst being supported by the applicant the complainant then faced MM, hugged him and appeared to lean on his shoulder. When the Uber vehicle arrived, the applicant and MM assisted the complainant to the Uber vehicle, and the applicant assisted her to get into the rear passenger seat. The applicant and MM then returned inside the apartment building.

19. [32]

    The CCTV footage contained in Ex 6 shows the complainant exiting the Uber vehicle and taking two steps before losing her balance and falling down onto the road surface. Once the Uber vehicle had left, the complainant tried to get up but fell face down. Over the next few minutes, the complainant tried repeatedly to get up but each time was unsuccessful and then remained on the road surface near the gutter for about 4 minutes. In her evidence, the complainant said she recalled “[r]olling around on the floor” when getting out of the Uber vehicle and that she was unable to stand up due to her level of intoxication. She remained on the road surface for about 4 minutes and then stumbled to the footpath, where she remained for about 12 minutes before her father’s friends arrived to assist her getting home.

20. [33]

    MM was the complainant’s work supervisor at the time, and they worked very closely together. He had obtained a responsible service of alcohol (“RSA”) certification and was trained in identifying signs of intoxication and how to deal with people who are intoxicated. MM attended the Christmas party and said that he arrived at the apartment around 6pm. He gave evidence that both the applicant and the complainant had arrived at the party after him, and upon arrival, he noticed that the complainant was not intoxicated.

21. [34]

    MM gave evidence that during the time of playing the card game at the table, the complainant showed visible signs of intoxication. He described that she was struggling to keep her balance, and her speech was “mumbled”. When asked if he had observed any other signs of the complainant’s intoxication, MM recounted that there was an increase in the volume of her speech, she did not comprehend the card game they were playing, and her balance was poor. MM also said that he had not seen the complainant eat any food but believed she had consumed more than around four or five glasses of wine and also some Vodka and Sprite drinks.

22. [35]

    MM gave evidence that at some point he stood up from the table and went to the bedroom where a number of other guests were resting, including Eddy and JB, leaving the applicant and the complainant alone together at the table. He said that he saw the applicant and the complainant sitting “close to each other” and “kissing each other”. He recalled that he only saw the applicant and the complainant kissing twice.

23. [36]

    MM said that after hearing a loud thud, he went into the living room and saw that the complainant had fallen off her chair. He agreed that the applicant was helping her up and remembered her saying that she needed to use the bathroom. MM gave evidence that the complainant was unable to walk straight and that her loss of balance was a “big sign of intoxication”. When asked whether anyone assisted the complainant to go to the bathroom, MM said that the applicant assisted and that he went into the bathroom with her. He estimated that the applicant and the complainant stayed in the bathroom for “[p]robably only five minutes”. He accepted that after a few minutes, he checked up on them since they were taking a long time, knocking on the door and asking if they were “all right”, to which he stated they each responded back saying “yep”.

24. [37]

    MM said that after the applicant and the complainant eventually exited the bathroom, the complainant was still intoxicated and was saying she wanted to go home. However, he felt that it was unsafe for the complainant to go home by herself because she was “highly intoxicated”. MM said that he wanted to keep an eye on the complainant for a couple of minutes to allow her to sober up and suggested that she lie down in the bedroom. In cross-examination, he said that he “laid [the complainant] down into the bedroom” and walked out. His evidence was that at some stage when he went to the bedroom to collect his belongings, he noticed that the bedroom door was closed and had been locked. He did not recall who had closed the bedroom door but agreed that the applicant and the complainant were alone inside the bedroom.

25. [38]

    MM gave evidence that he estimated the applicant and the complainant remained in the bedroom for about 10 minutes. His evidence was that after coming back to the door and knocking, he walked in, turned on the bedroom lights and saw that the applicant and the complainant were lying next to each other on the bed. MM recalled that the applicant got up almost instantly and that it seemed he was adjusting his belt as he quickly got out of the bed. At that moment, he observed that the complainant and the applicant both appeared to be fully dressed.

26. [39]

    When asked about how the complainant appeared at that time, MM said that she appeared “a little bit better” but was still intoxicated and stumbled as she looked for her phone. He observed that the complainant was “very quiet” and “not very like [herself]”. The complainant told MM that she just wanted to go home. He then used the complainant’s phone to book an Uber ride, and recalled that the driver would arrive in around 30-40 minutes. MM gave evidence that he helped the complainant to go downstairs, and it was the applicant who gave her support as she could not walk straight. MM said that he and the applicant helped the complainant into the backseat of the Uber vehicle as she was highly intoxicated, could not stand up straight and had to lean on the applicant. It was MM’s evidence that when the applicant had assisted the complainant into the bathroom, the bedroom, leaving the bedroom, and into the Uber vehicle, it appeared on all those occasions that the applicant was not intoxicated.

27. [40]

    In his evidence in chief, MM said he received a phone call from the complainant on the night of 26 December 2021. His evidence was that during the phone conversation, the complainant told him that she had been drunk the previous night and could not really remember what had happened. The complainant then described to him that she remembered being “in the room with [the applicant] and then glimpses of her … she said she saw [the applicant] on top of her in the bedroom”. MM also gave evidence that the complainant had told him “she felt like she got raped, she said”.

28. [41]

    JB was a work colleague of the complainant, the applicant and MM and at the time had been working at the same business for about three years. It was JB’s evidence that the applicant and the complainant were “pretty good friends at work” but that they were never a couple or shared a romantic relationship. JB gave evidence that she arrived at the party around 9pm and that both the complainant and the applicant were already in attendance.

29. [42]

    In cross-examination, JB said that she observed the complainant and the applicant sitting at the table in the living room and that they were very close and talking to each other. JB gave evidence that she was able to see from inside the bedroom that the complainant and the applicant were kissing on the chair and that they kissed “around twice”. JB said that a short while later, she heard a loud bang and went outside to see the complainant having fallen off her chair and the applicant helping her up. JB then observed the applicant assist the complainant into the bathroom, and they went inside together. She estimated that the applicant and the complainant remained in the bathroom for around 15 minutes.

30. [43]

    After the complainant left the bathroom, JB said that the applicant assisted her to lie down on the bed in the bedroom. Her evidence was that the time between the complainant exiting the bathroom and ending up in the bedroom was around three minutes. JB described the complainant at this time as “pretty intoxicated”, to the point of passing out, that she could not walk straight and was slurring her words.

31. [44]

    In cross-examination, when asked about the complainant’s behaviour, JB said it was clear from “her whole demeanour, she just seemed very intoxicated and she was unable to go home at that point”. JB recalled in the bedroom that the applicant had adjusted her to a more comfortable position on the bed and put a pillow under her head. She also remembered the complainant stating again that she needed to go home. JB’s evidence was that she was “pretty sure” that the complainant fell asleep on the bed as her eyes were closed and she had stopped talking. She recalled there was no one else in the bedroom besides the applicant and the complainant. She said that the door was then closed, but she did not recall who closed it.

32. [45]

    JB left the apartment at about 11:40pm, at which time the complainant and the applicant were still inside the bedroom.

33. [46]

    The following evening after the party, the complainant sent a text message to JB asking to speak to her about what had happened at the party (Ex 10, p 1). There was a phone call made between the complainant and JB some time between 11:07pm on 26 December 2021 and 12:37am on 27 December 2021. During that phone conversation, JB recalled the complainant saying that she did not remember what had happened on the night of the party and that she had some “blanks” in her head. The complainant told JB that she did not remember falling off a chair or going into the bedroom with the applicant, but did remember the applicant’s penis being inside her vagina. JB said that she recalled the complainant was upset and started crying during the call.

34. [47]

    In a further text message exchange between JB and the complainant on 27 December 2021, the complainant indicated that she had spoken to the “rape crisis hotline” (Ex 10, p 12). JB recalled that the complainant at that time said she did not want to go to the police but was still thinking about it, and that she had experienced a panic attack in the bathroom at work. She told JB “it just keeps replaying in my head” (Ex 10, p 17), and that she was in a state of shock (Ex 10, p 19). JB also sent a message to the complainant which said, “I remember [the applicant] tucking a pillow under her head … [w]e all assumed [the applicant] was going to be looking after [the complainant], so we left the room and closed the doors”. When asked about what she meant by the applicant “looking after” the complainant, JB said the applicant “seemed so caring … I just assumed that he was going to take care of her until she sobers up”.

35. [48]

    Eddy was a work colleague of the complainant and the applicant and was working at the same business for about five years. He held an RSA certification and was trained in identifying signs of intoxication. His evidence was that he had only observed the applicant and the complainant interact casually, such as saying “[h]i and things like that”. The Christmas party on 25 December 2021 was organised by Eddy, and he had invited about 10 other work colleagues. Eddy recalled that the applicant arrived at the party around 4 or 5pm with a bottle of Baileys and accepted that the complainant arrived after about 8:14pm.

36. [49]

    Eddy gave evidence that the applicant had drunk “not much” and the complainant “drank a little bit”. He said that when in the bedroom, the sliding door was open, and he could see in full view the applicant and the complainant sitting next to each other at the table in the living room. He observed that the applicant and the complainant kissed while sitting at the table. Eddy described the kiss as a “French kiss” and said that he and the other guests were “really surprised that they kissed”. Eddy stated that at some point after the kiss, he saw the complainant try to stand up from her chair, and she stumbled and fell forward to the floor. He observed that the complainant was a bit unstable and was not standing up properly. His evidence was that “she had too much to drink” and was “drunk”.

37. [50]

    Eddy recalled that after the complainant had fallen off the chair and onto the floor, she was helped up by the applicant and they then went into the bathroom together. He estimated that they were in the bathroom for about 10 minutes. When asked if he thought the applicant was drunk, Eddy said “[h]e was not drunk”. Eddy stated he thought this because the applicant said words to the effect of “I’ll look after [the complainant]” in a “very confident, very normal” manner of speaking. Eddy observed that the complainant looked tired, sleepy and drowsy. He agreed that the complainant was not walking normally, that she was swaying and closing her eyes, and he believed she was still drunk or tipsy.

38. [51]

    Eddy gave evidence that the applicant helped the complainant to the bedroom and then he closed the bedroom door. He said that, as the applicant closed the door, Eddy, MM and one of the other guests were “just looking at each other puzzled”. He recalled that MM knocked on the door “because we were worried”. He estimated they were in the bedroom for about half an hour before the applicant came out after MM knocked on the door and went in. Eddy said that when the complainant was being helped out of the bedroom by the applicant, she still appeared drowsy, swaying and intoxicated, that she was not alert and was going in and out of consciousness. Eddy remained in the apartment as the applicant and MM took the complainant downstairs.

39. [52]

    Eddy gave evidence that at 10:55am on 26 December 2021, the complainant sent him a text message saying that her memory was really bad and that she needed “goss”. She said to Eddy that what she remembered was “like a bad dream … [t]he end of it lol” (Ex 9, p 1). Eddy replied that it was best to ask MM because he had been snoozing (Ex 9, p 2). In cross-examination, when asked why he told the complainant “I was snoozing”, which was not truthful, Eddy said “I didn’t want to have to do anything with answering this because it feels really uncomfortable”.

40. [53]

    RM was the Uber driver who drove the complainant from the apartment to the destination located in close vicinity of her home. He agreed that the trip took 5 minutes and 43 seconds in total.

41. [54]

    RM said that during the entire journey, the complainant did not speak at all. He observed that when arriving at the destination, the complainant opened the car door and as soon as she tried to exit, fell into the gutter on the side of the road. RM stated that he got out of the car and asked the complainant if she was ok, and she replied “yes” but struggled a bit to stand up. His evidence was that she was intoxicated because “she fell down straight away”.

42. [55]

    YT was a friend of the complainant’s father. YT saw the complainant sitting on the footpath as he and MG approached her. He described that the complainant looked “upset, like she was feeling down, she wasn’t happy … [s]he was, like, empty”. YT said that when he asked the complainant if she could go home, she replied “[n]o”. YT gave evidence that the complainant appeared drunk and was wobbling as he and MG walked her home.

43. [56]

    MG was also a friend of the complainant’s father and YT, and had known the complainant since around 2003 or 2004. MG described the complainant as being upset and a “little bit drunk” when he and YT assisted her from the roadside. He also observed that she looked like she had been crying. He gave evidence that the complainant could not stand up, so he and YT assisted her by lifting her up off the footpath and taking her home.

44. [57]

    The applicant gave evidence that he attended the Christmas party around 5pm and was one of the first guests to arrive at the apartment. He said that he started drinking Vodka and lemonade about half an hour after he had arrived. The applicant recalled that when the complainant arrived, he gave her a hug and a kiss on the cheek, and that during the course of the evening they began talking more closely. He believed that the complainant was interested in him in a sexual way.

45. [58]

    The applicant gave evidence that Laura acted as a matchmaker between him and the complainant. It was his evidence that Laura knew that he liked the complainant and said to him “[w]hy aren’t you making a move … [the complainant] likes you”. He replied he “didn’t think it would work” and that he was not her type. The applicant said that at some point the complainant then asked him why he did not think “it would work out” between them and he explained “because I’m not a bad boy”. The applicant accepted that Laura encouraged the kiss between them when they were sitting at the table in the living room. He remembered putting his hand on the complainant’s thigh and said that she moved forward to kiss him, and so he reciprocated, then they started kissing. He described the kiss as a “French kiss” and that it was “passionate kissing”. His recollection was that they kissed in a similar manner at least six or seven times around different parts of the apartment including both standing up and sitting down.

46. [59]

    The applicant said that the complainant would make alcoholic drinks for him and bring them back. He remembered that when the complainant wasn’t around, the other guests would jokingly tease him by asking “[w]here’s your girlfriend … [g]o make sure she’s okay”.

47. [60]

    The applicant gave evidence that he did not remember how he came to be in the bathroom with the complainant, nor that he had helped her to the bathroom. However, he recalled that during the time in the bathroom, they were “making out”, kissing and had made some small talk. He estimated that they were in the bathroom for five minutes. He stated that at that point, he had consumed around 10-15 alcoholic drinks and was intoxicated. When asked about the complainant’s level of intoxication, he accepted that she was intoxicated but said that he was not paying much attention as he was excited from the kissing and having fun at the party.

48. [61]

    After exiting the bathroom, the applicant’s evidence was that the other guests physically placed him and the complainant on the bed in the bedroom, and he recalled hearing MM say “[e]veryone out of the room … [l]eave these two alone” and closed the door. In the bedroom, the applicant said that he and the complainant were kissing and talking on the bed. At some point, the complainant asked if she could move his hand from her stomach to a better location on her body, and then physically moved his hand down to her crotch area. She told him “I want to be with you, do you want to be with me” and he replied that he really liked her and wanted to be with her. He said that she indicated to him she wanted to have sex, and he asked if she needed a condom, and she replied yes. The applicant said that as he was pulling the condom out of his pocket, the complainant allegedly pulled down his shorts and performed oral sex on him for 30 seconds to a minute. He then put the condom on, and they had penile vaginal intercourse. He then told the complainant that he was tired and asked to change sexual positions saying if she could “hop on top”, to which the complainant agreed and “hopped on top” of him. He also remembered they were kissing while having sexual intercourse. He gave evidence that the sexual intercourse lasted around 10-15 minutes and the complainant was fully awake and consenting.

49. [62]

    The applicant said he stopped having sex with the complainant when MM knocked on the door and asked “[a]re youse done in there”. They then put their clothes on, and MM subsequently opened the door and turned on the bedroom lights. The applicant accepted at this point that the complainant was “still intoxicated”. When asked about whether the complainant was drunk in the bedroom, the applicant agreed she was “drunk and alert, but she was awake” and “understood what was happening”.

50. [63]

    The applicant gave evidence that on the afternoon of the next day, he received a Snapchat message from the complainant which stated “she had a fun time last night and that we should do it again”. According to the applicant, the complainant then asked him whether they had sex. He replied “yes” and said that he felt “very confused” by this question. His recollection was that the complainant also asked “[d]id you use a condom” and “who else knows from last night”, to which he replied “yes I used a condom” and “a few people may know that we had sex”. The complainant also told the applicant that she had been intoxicated and did not consent to the sexual intercourse, and he replied “[k]ay (okay)”. He said that the complainant then stated “[w]hy did you take advantage of me … I was asleep” and that he did not respond to this message. It was the applicant’s evidence that he could not read or write, that he was able to read “some stuff” and “just try to assume that’s what they’re saying”.

51. [64]

    In cross-examination, the applicant denied that he told MM or anyone else at the party that he would look after the complainant. When asked whether he had adjusted the complainant’s body on the bed or put a pillow under her head, the applicant said he had no recollection. It was put to the applicant that he had taken the complainant into the bedroom to be alone with her. He denied that suggestion and maintained that the complainant had initiated the sexual intercourse with him, and that there was no indication that the complainant was not consenting. However, the applicant accepted in a pretext call by the complainant on 21 March 2022, that he had said he would look after the complainant.

52. [65]

    On 21 March 2022, a pretext call was conducted between the applicant and the complainant, which was covertly recorded by the police under a surveillance device warrant (Ex 14). During the pretext call, the applicant stated that when he and the complainant were lying on the bed, she told him to put his hand “somewhere else” and moved it “down there”. He said “I was fucked up and you were fucked up … [y]ou initiated it”. When the complainant asked how she could have initiated it, he replied “I didn’t, I didn’t know all these questions, that you were on medication”. The applicant denied not knowing that the complainant was not consenting to the sexual intercourse and said he would not apologise “for something that was both ways”.

Ground 1: A miscarriage of justice was occasioned by the trial judge giving a deficient Liberato direction

1. [66]

   Before proceeding further, it is convenient to set out the discussion between the trial judge and trial counsel concerning a Liberato direction (Liberato v The Queen (1985) 159 CLR 507 at 515 (Brennan J); [1985] HCA 66).

2. [67]

   The trial judge commenced the summing up in the afternoon on 22 April 2024. After giving the jury the standard directions which included the onus and standard of proof, his Honour sent the jury home for the day. The following discussion then took place between his Honour and trial counsel in the absence of the jury:

3. [68]

   On the following morning before the trial judge resumed summing up and in the absence of the jury, the applicant’s trial counsel raised the question of whether the Liberato direction would be given and said that he “didn’t quite follow [his] Honour’s reasoning as to why [his] Honour thought it might not be required”. The following exchange then took place:

4. [69]

   The Crown Prosecutor informed the trial judge that she did not “wish to be heard against some form of Liberato direction”. For convenience, I will refer to the direction given by the trial judge to the jury quoted at [70] below as the “modified Liberato direction”.

5. [70]

   Before going through the essential elements of the offence, the trial judge gave the jury a prior good character direction and then referred to the applicant’s evidence of what occurred in the bedroom with the complainant. His Honour emphasised that it was not for the applicant “to prove that version to you”. His Honour then said:

6. [71]

   In written submissions, the applicant referred to his positive case of consent, albeit subject to the fact that he also said he was intoxicated. The applicant submitted that if the jury were to accept his account of events that occurred in the bedroom before the sexual intercourse took place, then the jury could not have found that the complainant did not consent to the sexual intercourse. Further, the jury also could not have found that the applicant had the requisite state of mind about consent (although that element likely would not arise for consideration if the absence of consent could not be established). The applicant argued that this should have been made clear to the jury.

7. [72]

   The applicant contended that the trial judge should have directed the jury in terms such as those formulated by the majority of the High Court in De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ) (“De Silva”), and in accordance with the suggested model Liberato direction in the Criminal Trial Courts Bench Book issued by the Judicial Commission of New South Wales at [3-600] (“the Bench Book”) to the effect as follows:

8. [73]

   The applicant submitted that the trial judge’s modified Liberato direction was not sufficient as the direction would have left the jury with the impression that although a finding in accordance with either of the first two limbs of the direction may be strong grounds to acquit, it was nevertheless a matter for the jury to weigh up and that they were still entitled, if they so chose, to convict the applicant. The applicant emphasised that his Honour’s direction had to make it clear to the jury that positive findings in accordance with either of those two limbs mandated an acquittal, such that the applicant must be acquitted if they believed his evidence and it was not an option that they could still convict him. Although the applicant acknowledged that deviations from the formulation in the Bench Book are permitted, it was argued that strict adherence to the phrasing of the Liberato direction was necessary to avoid the “watered down” direction given. It was further submitted that his Honour’s directions were a material departure from what was warranted in the circumstances and was of such significance that it caused a miscarriage of justice as the applicant lost a real chance of acquittal, referring to the judgment of Kirk JA (with whom Walton and Sweeney JJ agreed) in Park v R [2023] NSWCCA 71 at [104] (“Park”).

9. [74]

   In oral submissions, the applicant’s counsel made it clear that an unqualified Liberato direction “ought to have been given only in respect of the events as in the physical conduct of both the applicant and the complainant as it occurred in the bedroom prior to the complainant waking up to find [the applicant’s] penis inside of her, in effect”: Tcpt, 5 December 2025, p 2(25-30).

10. [75]

    The applicant’s counsel referred colloquially to the applicant’s evidence of the complainant coming on to him, that the complainant made it clear to him that she wanted sex and “she conducted herself in a manner consistent with that which kicked off the intercourse …”: Tcpt, 5 December 2025, p 2(40-43). The applicant’s counsel further submitted that a “Liberato direction needed to be given in its full manner, in a strict manner … in relation to that evidence”: Tcpt, 5 December 2025, p 2(43-49).

11. [76]

    The applicant’s counsel contended that the applicant’s positive account of what happened in the bedroom could have meant nothing more than there was consent, and because of that, an unqualified Liberato direction was required to be given as to that aspect. The applicant’s counsel further submitted that you would not get to the applicant’s state of mind if that were the case, as there could be no argument if the applicant’s evidence was accepted, that consent was not freely and voluntarily given by the complainant. The applicant’s counsel confined the applicant’s challenge to the trial judge’s direction in relation to the second element of the offence, namely, that the complainant did not consent to sexual intercourse.

12. [77]

    The Crown submitted that in the circumstances of this case, the modified Liberato direction given by the trial judge was appropriate in light of the evidence, the issues at trial and the provisions of the Crimes Act relating to consent, intoxication and knowledge of a lack of consent.

13. [78]

    The Crown referred to ss 61HE(3) and 4(b) of the Crimes Act (which were in force at the date of the offence but were repealed with effect from 1 June 2022), and to the discussion between the trial judge and the applicant’s trial counsel set out at [68] above, and contended that his Honour pointed out that even if the jury accepted that the applicant honestly believed that the complainant was consenting, the Crown could prove knowledge of a lack of consent if he had no reasonable grounds for that belief. The Crown submitted that his Honour correctly observed that the jury does not “necessarily have to fully reject everything [the applicant] says in order to still find him guilty”. The Crown contended that the effect of ss 61HE(3) and (4)(b) was that it would have been inappropriate to direct the jury that if they accepted the applicant’s account or believed that it might be true (at least with respect to his state of mind), they must acquit.

14. [79]

    A further submission was that an unqualified Liberato direction would not have been appropriate in light of the Crown’s reliance on the complainant’s substantial intoxication to prove her inability to consent to sexual intercourse (in addition or in the alternative to the complainant having been asleep). The Crown referred to s 61HE(2) of the Crimes Act (now repealed), and submitted, as the trial judge observed, that the complainant was unable to consent due to her substantial intoxication which was “very much a significant part of [the Crown Prosecutor’s] address”.

15. [80]

    The Crown argued that the Crown Prosecutor’s reliance on substantial intoxication meant that even if the jury concluded that the applicant’s account as to what occurred in the bedroom might be true (or if they accepted aspects of that account), this did not necessarily mandate an acquittal.

16. [81]

    The Crown submitted that the applicant could only give evidence as to what he saw or heard but those physical acts did not establish consent. The Crown argued that the jury, in light of the Crown Prosecutor’s submissions and all of the evidence, may have simply found that the complainant could not give consent. The Crown contended that even if the applicant’s version of events was to be treated as possibly truthful, it would not lead to a different outcome.

17. [82]

    The Crown submitted that there was a risk of confusing the jury if the modified Liberato direction was not given, in particular when looking at the trial judge’s directions regarding consent, knowledge and substantial intoxication which suggested to the jury that they could find the applicant guilty even if they thought his evidence (or aspects of it) might be true. The Crown argued that the absence of any objection or request for redirection was a powerful indication that the applicant’s trial counsel had no difficulty with the modified Liberato direction.

18. [83]

    When the trial judge raised the extent of a Liberato direction with trial counsel, his Honour, a very experienced trial judge, was endeavouring to ensure that the applicant received a fair trial. His Honour was mindful that only the complainant and the applicant were present when the sexual assault was alleged to have occurred. However, his Honour was alert to the difficulties on the evidence in the trial that might arise from an unqualified Liberato direction in the terms formulated by the majority in De Silva at [12], in which their Honours expressed it was “preferable” for a Liberato direction with three limbs be framed along the following lines:

    1. (1)

       if the jury believe the accused’s evidence, the accused must be acquitted;

    2. (2)

       if the jury does not accept that evidence of the accused but considers that it might be true, the accused must be acquitted; and

    3. (3)

       if the jury does not believe the accused’s evidence, that evidence should be put to one side but the question will remain: has the prosecution, on the basis of evidence that is accepted, proved the guilt of the accused beyond reasonable doubt?

19. [84]

    In Krivosic v R [2024] NSWCCA 166, Mitchelmore JA (with whom Garling and Wilson JJ agreed) (“Krivosic”) referred to the purpose and origin of the Liberato direction at [92]-[93]:

20. [85]

    Before turning to a consideration of the parties’ submissions, it is necessary to refer to the essential elements of the offence of sexual intercourse without consent, contrary to s 61I of the Crimes Act, which the trial judge directed the jury as follows:

21. [86]

    The first essential element of the offence was not in issue but there was a conflict between the evidence of the complainant and the applicant on the second and third essential elements of the offence.

22. [87]

    The difficulty with an unqualified Liberato direction being given in the terms of the first two limbs was readily apparent in respect of the third essential element of the offence; the applicant’s knowledge that the complainant was not consenting: s 61HE(3) of the Crimes Act (now repealed). As to the third essential element of the offence, the trial judge was required (which his Honour did) to direct the jury that if the Crown failed to prove actual knowledge of a lack of consent, there was another way that the Crown could still prove this element. His Honour appropriately addressed this issue in his oral and written directions as follows:

23. [88]

    His Honour further instructed the jury that if they considered the applicant was intoxicated by voluntarily drinking alcohol, they must ignore that and decide this element by considering what his state of mind would have been if he had not been intoxicated.

24. [89]

    Even though the jury may have believed the applicant’s evidence or considered it might be true, the jury could find beyond reasonable doubt either that the applicant did not have an honest belief that the complainant was consenting, or there were no reasonable grounds for his belief, or that he was reckless as to whether the complainant consented to the sexual intercourse.

25. [90]

    In oral submissions in this Court, the applicant’s counsel confirmed that the applicant’s complaint did not embrace the third essential element of the offence (“the applicant’s knowledge”). Counsel’s argument was that an unqualified Liberato direction should have been given in respect of the second essential element of the offence (“the complainant’s consent”).

26. [91]

    Although this Court was not provided with any authority that an unqualified Liberato direction could be confined to a single issue, I do not see any difficulty with a Liberato direction being fashioned to an aspect of the evidence which was critical to the assessment by the jury of the offence the applicant faced. As has often been said, a Liberato direction has an important role to play where there is a risk that a jury may reason that the evidence on which an accused relies will only give rise to a reasonable doubt if the members of the jury believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt: De Silva at [10]; Barwick v R [2023] NSWCCA 139 at [62] (Wright J, Yehia and Chen JJ agreeing). Furthermore, it is accepted that rigid adherence to the formulation of an unqualified Liberato direction is not required: Park at [101] (Kirk JA, Walton and Sweeney JJ agreeing); see also, Krivosic at [96]-[97], [102] (Mitchelmore JA, Garling and Wilson JJ agreeing); Harper v R [2022] NSWCCA 211 at [154], [160] (Button J, Bell CJ and N Adams J agreeing).

27. [92]

    The applicant’s contention is that the first and second limbs of an unqualified Liberato direction should have been given as to the applicant’s evidence of what happened in the bedroom prior to the sexual intercourse. If believed by the jury or if the jury considered that the applicant’s evidence might be true necessarily resulted in the jury not being satisfied beyond reasonable doubt that the complainant did not consent to the sexual intercourse.

28. [93]

    A difficulty with that submission was the evidence of the complainant’s intoxication. The Crown case was that the complainant had either passed out or was asleep or she was very substantially intoxicated and incapable of consenting to sexual intercourse and did not consent. In her closing address, the Crown Prosecutor told the jury that “a very live and obvious issue” was “substantial intoxication”.

29. [94]

    Section 61HE(8) of the Crimes Act (now repealed) relevantly provided that “[t]he grounds on which it may be established that a person does not consent to a sexual activity include … if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug …”. The trial judge’s written directions appropriately included the following:

30. [95]

    The trial judge’s written directions were reinforced by his oral directions, which included a reference back to the modified Liberato direction (see [70] above), where his Honour stated:

31. [96]

    Where the issue of substantial intoxication was an important factual matter for the jury in assessing whether the Crown had established that the complainant did not freely and voluntarily consent to sexual intercourse, it would have been erroneous for the trial judge to direct the jury that they must acquit if they believed the applicant’s evidence or considered his evidence might be true of what happened in the bedroom prior to the sexual intercourse.

32. [97]

    The trial judge’s modified Liberato direction in which he used phrases such as “a very significant step” and “a very strong position” was abundantly fair to the applicant and sufficient to protect against a miscarriage of justice.

33. [98]

    Furthermore, it should not be overlooked that the applicant’s trial counsel who had the opportunity of discussing a Liberato direction (see [68] above) with the trial judge and considering the issue overnight, neither raised an objection nor sought a redirection to the modified Liberato direction. The applicant accepts that as no objection was taken to his Honour’s Liberato direction given, r 4.15 of the Supreme Court (Criminal Appeal) Rules applies such that leave is required to raise this ground. As was recently observed by this Court in Al-Sheikh v R [2025] NSWCCA 205 at [113] (Bell CJ, Kirk JA and Sweeney J) (“Al-Sheikh”):

34. [99]

    It is unsurprising that the applicant’s trial counsel did not object to the direction that the trial judge gave. It supports my conclusion of the fairness of the modified Liberato direction and that no material prejudice was caused to the applicant receiving a fair trial. I would refuse leave to raise this ground.

Ground 2: A miscarriage of justice was occasioned by the trial judge not giving directions on the drawing of inferences

1. [100]

   In written submissions, the applicant’s contention was that the Crown case in relation to the complainant’s lack of consent and the applicant’s knowledge of it, and his state of mind was essentially circumstantial. The applicant submitted that a direction from the trial judge was required, which would combine the suggested direction on inferences with the circumstantial case direction in the Bench Book at [2-520]-[3-150].

2. [101]

   In oral submissions, the applicant’s counsel accepted that a circumstantial case direction was not required. The applicant’s counsel confirmed that the complaint was confined to the trial judge’s failure to explain the process as to how inferences may be drawn, that in order to draw an inference adverse to the applicant, it had to be the only rational or reasonably available inference to be drawn.

3. [102]

   The Crown submitted that the standard direction in the Bench Book as to the drawing of inferences had little work to do in the present case when the summing up is read as a whole. The Crown submitted that despite the trial judge omitting to give the jury the standard direction, it was evident that the jury was directed appropriately in relation to the drawing of inferences as well as on the burden and standard of proof. In support of this submission, the Crown referred to MFI 7 and to various passages in the summing up. The Crown contended that his Honour’s summing up made it clear to the jury that proof of the applicant’s state of mind relied on the drawing of inferences from all the facts and circumstances established by the evidence and that the inferences advanced by the Crown as to the applicant’s state of mind had to be proven beyond reasonable doubt.

4. [103]

   The Crown contended that when the trial judge’s summing up and directions are taken as a whole, it is clear that the jury was not deflected from the fundamental task of deciding whether the Crown had established the elements of the offence beyond reasonable doubt citing Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62 at [41]-[43] (Gordon, Steward and Gleeson JJ) (“Huxley”).

5. [104]

   In closing addresses, neither the Crown Prosecutor nor the applicant’s trial counsel referred to drawing inferences from the evidence. This lack of attention to the issue of inferences was undoubtedly due to the Crown case being essentially dependent upon direct evidence and the central issue in the trial being the jury’s assessment of the credibility of the complainant and of the applicant. However, the trial judge was aware that there was no direct evidence of the applicant’s state of mind. When his Honour in his directions dealt with the third essential element of the offence (“the applicant’s knowledge”), his Honour said:

6. [105]

   The applicant’s criticism of the trial judge’s directions is that he did not go on to give the standard direction in the Bench Book at [3-150] on the drawing of inferences. Shortly stated, the standard direction is formulated to explain to the jury what is meant by “inferences”, that “the question is whether, on the basis of the primary facts, it is reasonable to draw the inference” and an “inference should not be drawn from the evidence unless it is the only reasonably available inference to be drawn from the evidence”.

7. [106]

   As the applicant contends that there has been a miscarriage of justice by the trial judge’s failure to give the standard inferences direction, it is necessary to consider the whole of his Honour’s directions to the jury. In Huxley, Gordon, Steward and Gleeson JJ stated at [41] that:

8. [107]

   There is no rule of law that an inferences direction should be given in every case. The requirement to give such a direction would depend upon the significance of the inference upon which the Crown relies. Furthermore, as the authorities make clear, where the only inference to be drawn is one relating to the accused’s state of mind, the usual practice is that no circumstantial evidence direction is required: see, eg, La Fontaine v The Queen (1976) 136 CLR 62 at 71-72 (Barwick CJ), 80-81 (Gibbs J), 83-85 (Stephen J), 86-87 (Mason J); [1976] HCA 52; R v Tillott (1991) 53 A Crim R 46 at 50 (Hunt J, Gleeson CJ and Samuels JA agreeing); Rogerson v R (1992) 65 A Crim R 530 at 545 (Loveday J, Hunt CJ at CL and Grove J agreeing); R v Niass [2005] NSWCCA 120 at [9] (Hunt AJA, Grove and Hall JJ agreeing) (“Niass”); Mulvihill v R [2016] NSWCCA 259 at [145] (Ward JA, Beech-Jones and Fagan JJ) (“Mulvihill”); Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22 at [125] (Dhanji J, Bathurst CJ and Rothman J agreeing). However, where the inference concerns an element of the offence or an essential fact, the jury should be told that the required inference must nevertheless be the only rational or reasonable inference available from the evidence: Niass at [10] (Hunt AJA, Grove and Hall JJ agreeing), citing Knight v The Queen (1992) 175 CLR 495 at 502-503 (Mason CJ, Dawson and Toohey JJ), 509-510 (Brennan and Gaudron JJ); [1992] HCA 56 (“Knight”).

9. [108]

   Niass was not a circumstantial evidence case, but the direction was required to prove the accused’s state of mind. In Knight, Mason CJ, Dawson and Toohey JJ observed at 502 that such a direction “is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt”. That observation was reiterated by Kiefel J (with whom Hayne, Heydon and Crennan JJ agreed) in The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [126]: see also, the additional observations by Spigelman CJ in Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150 at [14]-[15]; Mulvihill at [145]-[146] (Ward JA, Beech-Jones and Fagan JJ).

10. [109]

    As has already been mentioned, the applicant points to the standard inferences direction in the Bench Book. However, a trial judge’s summing up on matters of law does not depend on whether the judge has used a particular formula of words. Although of great assistance, there is no obligation to follow the wording in the Bench Book as it is the effect of the summing up that matters: R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [75] (Spigelman CJ, McClellan CJ at CL and Hall J agreeing); Zaro v R [2009] NSWCCA 219 at [50] (Macfarlan JA, Grove and Hoeben JJ agreeing).

11. [110]

    In the trial judge’s oral and written directions, his Honour emphasised the Crown’s obligation to prove the applicant’s guilty state of mind beyond reasonable doubt. When referring to “actual knowledge”, “no reasonable grounds” or “recklessness”, his Honour repeatedly said that the Crown must prove the applicant’s guilty state of mind beyond reasonable doubt. When discussing actual knowledge, his Honour relevantly said:

12. [111]

    When referring to “reasonable grounds” his Honour’s written directions included the following:

13. [112]

    His Honour’s emphasis on the Crown’s obligation to eliminate the reasonable possibility of the applicant having an honest belief had the same force and effect as directing the jury that they could not be satisfied beyond reasonable doubt that the applicant knew the complainant was not consenting to sexual intercourse, unless it was the only reasonably available inference to be drawn from the evidence.

14. [113]

    As to proof of recklessness, his Honour said:

15. [114]

    The modified Liberato direction (see [70] above) and the further direction that his Honour gave (see [95] above) complemented these directions. It was plain from the directions given that the members of the jury would have understood that the Crown bore the onus of excluding the reasonable possibility that the applicant did not have the state of mind which the Crown asked them to infer.

16. [115]

    The standard directions that his Honour gave which included the jury’s decision not being based on emotion; that the evidence must be looked at to determine whether the Crown had established its case beyond reasonable doubt; the jury’s duty to assess the truthfulness and reliability of a witness and the explanation of “beyond reasonable doubt” reinforce this conclusion.

17. [116]

    I am satisfied that the omission by the trial judge to give the standard direction on inferences did not deflect the jury from its fundamental task of deciding whether the Crown proved all of the essential elements of the offence beyond reasonable doubt. As I have already noted that r 4.15 of the Supreme Court (Criminal Appeal) Rules applies, it is sufficient to say the absence of the applicant’s trial counsel seeking further directions supports that conclusion: Al-Sheikh at [113] and the authorities there cited. Leave to raise this ground should be refused.

18. [117]

    The applicant’s appeal against conviction has been unsuccessful. Before turning to the sole ground of appeal against sentence, it is convenient to summarise some of the findings made by the trial judge in the sentencing judgment (“SJ”).

Some findings of the trial judge

1. [118]

   The trial judge was satisfied beyond reasonable doubt that when the complainant was in the bedroom lying on the bed, she was in “a state of essentially unconsciousness”: SJ, p 5. His Honour was also satisfied beyond reasonable doubt that the applicant “knew full well that he could not engage in sexual intercourse with her in that condition”: SJ, p 7. His Honour found the complainant to be an impressive witness and that the evidence overwhelmingly supported her account of the events of what occurred in the bedroom: SJ, p 2.

2. [119]

   His Honour found that the applicant took advantage of the complainant in the heavily intoxicated state that she was in. His Honour said that the applicant commenced to have sex with the complainant in circumstances where “she was unconscious or close to unconscious, in no capacity to consent”: SJ, p 8. His Honour accepted the complainant’s evidence and was of the view “without reservation that she effectively came through in a period of time when intercourse had already begun and that that was of course a shock to her that that had occurred without her consent and in circumstances where she simply had no capacity to even resist what had occurred”: SJ, p 8.

3. [120]

   His Honour found in those circumstances it was a serious example of the offence under s 61I of the Crimes Act and involved significant moral culpability. When assessing the objective seriousness of the offence, his Honour agreed with the Crown’s submission that the offence fell within the mid-range of objective seriousness and was mindful that in the sentencing exercise the maximum penalty and SNPP provide legislative guideposts consistent with the principles in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39: SJ, pp 9-10.

4. [121]

   His Honour referred to the complainant’s victim impact statement and observed that it was “distressing and upsetting to hear the impact on a victim of crime”: SJ, p 10. His Honour stated “[t]echnically, from a legal point of view, it is the kind of harm to be expected from a victim of sexual assault, and that harm is always significant”: SJ, p 10. His Honour noted that the applicant had no prior criminal history and was 40 years old at the time of the trial.

5. [122]

   His Honour referred at length to the report of Dr Olav Nielssen dated 28 May 2024, and did not give any weight to Dr Nielssen’s opinion that the applicant’s ability to estimate the complainant’s level of intoxication and her capacity to consent to sexual intercourse was reduced because of “[the applicant’s] subnormal intelligence and ability to navigate social rules”: SJ, p 15. His Honour had earlier noted Dr Nielssen’s finding that the applicant had a mild intellectual disability.

6. [123]

   His Honour noted that the applicant had been assaulted in custody and accepted what Dr Nielssen said that “[the applicant] probably is going to find it difficult in his personality and his mild intellectual disability and his illiteracy to cope as well in custody as other people”: SJ, p 16. His Honour found that the applicant had established that his time in custody would be more difficult: SJ, p 17.

7. [124]

   As to the assessment of the applicant’s probability of further offending, his Honour noted Dr Nielssen’s estimation that it was low because the applicant did not have “any of the risk patterns in relation to antisocial behaviour or substance abuse disorders”: SJ, p 16. His Honour said that there was a low probability of further offences of a sexual nature according to the applicant’s Static-99R score: SJ, p 18. His Honour further referred to the sentencing assessment report dated 13 June 2024 (Ex 3), noting that the applicant’s risk of offending was assessed as medium to low. His Honour said that assessment was not inconsistent with Dr Nielssen’s report. His Honour accepted that the applicant was not someone who was likely to reoffend in the future: SJ, pp 18-19.

8. [125]

   When referring to general deterrence, his Honour found that there was nothing in Dr Nielssen’s report that “would reduce the otherwise importance of general deterrence in this area or reduce his moral culpability of offending or reduce specific deterrence in this matter” and also observed that “general deterrence looms large”: SJ, p 17. His Honour accepted the Crown’s submission that specific deterrence had a role to play. Whilst “not necessarily” giving specific deterrence the same weight as the Crown gives, as the applicant had no prior criminal history, his Honour said that the applicant’s lack of insight into his wrongdoing meant that specific deterrence had “a role to play, though not a great role”: SJ, p 18.

9. [126]

   Another finding his Honour made was that the applicant’s moral culpability was significant and not diminished by his mild intellectual disability. His Honour found that the applicant did not demonstrate any remorse as he did not accept that he did anything wrong. His Honour observed that the applicant “feels justified for what he did to [the complainant]”: SJ, p 19. His Honour found that the applicant had positive prospects of rehabilitation: SJ, p 19.

10. [127]

    His Honour said that being in custody and unable to assist and care for his mother made the applicant’s time in custody more onerous. His Honour said that he had “considered a range of cases, but like all matters, everything turns on its own individual facts”: SJ, p 21. His Honour observed that “[o]ne of the important aspects of sentencing here is the denunciation for this conduct and this sentence is designed to reflect that”: SJ, p 21.

11. [128]

    Having found special circumstances, his Honour imposed a sentence of a term of imprisonment of 7 years with a NPP of 4 years and 6 months (see [9] above).

Ground 3: The sentence is manifestly excessive

1. [129]

   The applicant contended that the sentence was excessive having regard to the objective seriousness of the offence and to his subjective case. The applicant referred to statistics compiled by the Judicial Commission of NSW (“sentencing statistics”) and to comparable cases “involving broadly comparable circumstances of offending conduct”. The applicant noted that “they show a wide range of sentencing outcomes including terms not dissimilar to the applicant’s”.

2. [130]

   The applicant stated that the “statistics on their own do not demonstrate that the sentence imposed on the applicant was manifestly excessive in the sense of being ‘not reasonably open’ or plainly unjust …”. The applicant further submitted that “[i]t also appears difficult to demonstrate by way of reference to past sentencing [practice] that the term imposed on the applicant was excessive … although clearly [the applicant’s] sentence was high”.

3. [131]

   The applicant nevertheless submitted that “when considering the criminality involved, even taking into account that the applicant was convicted after trial (that is, with no discount for a guilty plea and without any evidence of remorse) that the sentence imposed was manifestly excessive”.

4. [132]

   The Crown submitted that the applicant had failed to demonstrate that the sentence was manifestly excessive in the relevant sense, namely that there must have been some misapplication of principle (although not apparent on the record) or that the sentence was so far outside the range of available sentences that there must have been an error. This was particularly so in the present circumstances where his Honour’s factual findings are not challenged by the applicant.

5. [133]

   The Crown referred to the applicant’s concession that the sentencing statistics do not demonstrate that the sentence imposed was manifestly excessive. The Crown further referred to the applicant’s acceptance that it appeared difficult to demonstrate by past sentencing practice that the sentence imposed was manifestly excessive. The Crown contended that when having regard to his Honour’s findings, the sentence imposed was demonstrably within his Honour’s sentencing discretion.

6. [134]

   This Court has often stated that to succeed on a ground where a complaint of manifest excess is made the applicant must demonstrate that the sentence was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ) (“Markarian”). The principles to be applied when a sentence is alleged to be manifestly excessive are well known and were conveniently summarised by R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]; and restated in Hughes v R [2018] NSWCCA 2 at [86] (Payne JA, R A Hulme and Garling JJ).

7. [135]

   It follows that sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and applicable sentencing principles: Markarian at [27]. Mere disagreement by appellate judges with the sentence imposed is not enough to render a sentence manifestly excessive, nor is it to the point that this Court may have exercised the sentencing discretion differently: Nair v R [2025] NSWCCA 136 at [70] (Yehia J, Stern JA and Cavanagh J agreeing); R v White [2025] NSWCCA 111 at [26] (Bell CJ, Payne JA and N Adams J agreeing); Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214 at [168] (N Adams J). In TH v R [2025] NSWCCA 121, Bell CJ observed at [5] (by reference to what his Honour had said in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [41]-[42] (“He v Sun”)):

8. [136]

   As the applicant in written submissions made a detailed reference to sentencing statistics and comparable cases, it merits mention that appellate intervention is not justified simply because the sentence imposed in the court below is markedly different from sentences imposed in other cases: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] (Gaudron, Gummow and Hayne JJ); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Furthermore, this Court has considered that while reliance on statistics and comparable cases to demonstrate manifest excess may be of some assistance, it is important to bear in mind “limitations on the use that can be made of so called comparable cases”: He v Sun at [51] (Bell P, Gleeson and McCallum JJA agreeing).

9. [137]

   However, this is not a case where the applicant points to sentencing statistics and comparable cases as showing a manifestly disproportionate sentence. The applicant’s counsel accepted that the sentencing statistics and comparable cases fell short of demonstrating manifest excess. I agree with that assessment.

10. [138]

    The applicant does not challenge any of the trial judge’s findings which included the applicant’s offending was a serious example of the offence; significant moral culpability was involved; general deterrence loomed large; specific deterrence had a role to play and no remorse was demonstrated.

11. [139]

    His Honour was mindful of the applicant’s lack of prior criminal history; his age; his mild intellectual disability; his positive prospects of rehabilitation; his time in custody would be more onerous and the maximum penalty of 14 years imprisonment and the SNPP of 7 years were legislative guideposts. His Honour found special circumstances.

12. [140]

    It is evident that the trial judge gave careful consideration to the sentence imposed. This is a serious offence. I am not persuaded that the sentence is unreasonable or plainly unjust.

13. [141]

    Ground 3 is dismissed.

Orders

1. [142]

   I propose the following orders:

   1. (1)

      Extend the time for leave to appeal against conviction and sentence.

   2. (2)

      Refuse leave to appeal against conviction.

   3. (3)

      Grant leave to appeal against sentence.

   4. (4)

      Dismiss the appeal against sentence.

2. [143]

   McGUIRE J: I agree with Price AJA.