Ahosivi v R

WARD P: The applicant (Mr Ahosivi) faced trial in the District Court at Sydney before O’Rourke SC DCJ and a jury between 12 and 19 September 2023 in relation to one count of sexual touching of one complainant (who will be referred to as “X”) contrary to s 61KC(a) of the Crimes Act 1900 (NSW) (Crimes Act) (Count 1) and one count of sexual intercourse without consent in relation to a second complainant (who will be referred to as “Y”), contrary to s 61I of the Crimes Act (Count 2). The applicant and the two complainants were work colleagues and had been out together as part of a group of people who had attended a social event earlier in the day.

The applicant was found guilty of Count 1 and not guilty of Count 2. The applicant was sentenced on 27 October 2023 to a community corrections order pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of two years to date from 27 October 2023 and expire on 26 October 2025, with supervision for 12 months and other additional conditions. There is no appeal against sentence.

The applicant seeks leave to appeal against conviction pursuant to ss 5(1)(b) and 6 of the Criminal Appeal Act 1912 (NSW), the sole ground of appeal being an unreasonable verdict ground:

The applicant accepts that leave is necessary as this ground raises a mixed question of fact and law.

If leave is granted and the appeal is successful, the applicant seeks orders quashing his conviction and directing a judgment and verdict of acquittal. For the reasons set out below, I would grant leave but dismiss the appeal.

The incidents in question occurred on 5 December 2021, outside the Captain Cook Hotel in Botany. The applicant and the complainants had been at another venue in Botany (the Sir Joseph Banks Hotel) earlier in the evening after attending a social event at Moorefield Bowling Club in the afternoon. The applicant’s partner had attended the Sir Joseph Banks Hotel for a short time before leaving (13/09/2023; T 16.17-21; 14/09/2023; T 85.11-16). The group (including the applicant and the two complainants) then went to the Captain Cook Hotel.

CCTV footage (Exs C and D) was tendered at the trial. Ex C showed the group dancing at the Sir Joseph Banks Hotel. Ex D (taken outside the Captain Cook Hotel) showed that, after leaving the Captain Cook Hotel, the applicant and the two complainants waited outside the hotel before getting into an Uber. The particularised act of sexual touching in relation to the Count 1 offence (sexual touching) was allegedly committed at the point timestamped 22:43:24 on the CCTV footage (14/09/23; T 79.28). The Count 2 offence (digital penetration), on which the applicant was acquitted, was allegedly committed once inside the Uber.

The defence case at trial focused on the issue of consent (although an issue was also raised during the trial in relation to Count 1 as to inconsistency between the particularised act – touching of buttock – and X’s evidence as to touching on the vagina (see below)).

It was the applicant’s case that he did not sexually touch or sexually assault either of the complainants without consent and knowing that they were not consenting. In relation to Count 1, the defence case was that there was a great deal of reciprocated affection between the applicant and X, after the applicant’s partner had left the Sir Joseph Banks Hotel, and that much of this affection was captured on the CCTV footage. The defence case was that kissing, hugging, flirting and affectionate touching was “part and parcel of their dealings” on the night of 5 December 2023 but only after the applicant’s partner had left (15/09/23; T 178.25-39). In relation to Count 2, the defence case was that the act of digital penetration (which was not denied) was consensual.

In respect of Count 1, the Crown opened its case as follows (13/09/2023; T 2.43-3.25):

Thus, while the opening was in relatively general terms as to the touching, the Crown made specific reference to the touching (on at least two occasions) of X’s buttock under X’s skirt. The applicant points out that later in the Crown opening the Crown said that “what the Crown is pointing at here is the touching on the buttocks, and the Crown says that you could find that touching to be sexual in nature” (13/09/2023; T 6.20-22). The applicant emphasises that X’s evidence (see below) was as to attempted touching (for example, that he “did try and touch me” or “was trying to touch”) and to a “successful” touching on the vagina (see appellant’s written submissions dated 13 December 2023 at [8]); and did not explicitly refer to a touching on the buttocks.

X’s evidence was that she arrived at the Sir Joseph Banks Hotel at around 5pm (after having attended the event at the Moorefield Bowling Club) (13/09/2023; T 17.15). The applicant drove both complainants there in Y’s car (13/09/2023; T 14.20-30). X had been drinking mixed drinks with vodka at Moorefield Bowling Club and continued drinking at the Sir Joseph Banks Hotel (13/09/2023; T 13.7-27). X gave evidence that she was sitting in the courtyard, listening to music from a live band and later she was dancing with the applicant “for quite a while while the band was playing” (13/09/2023; T 15.49). The applicant’s partner arrived at some point and had dinner there; and the applicant’s partner left around 8pm (13/09/2023; T 16.6-21).

X said that, while they were sitting down at the Sir Joseph Banks Hotel, the applicant put his hand on her leg and tried to put his hand up her dress; that she told him to cut it out and he stopped and continued on as normal; and that later the applicant tried again (13/09/2023; T 16.28-39). X said that she was moderately intoxicated at this time. X held the applicant’s hands while dancing (13/09/2023; T 16.44-49).

At around 10pm, a decision was made to go to the Captain Cook Hotel. X walked to the hotel. The applicant drove to the hotel with Y (13/09/2023; T 17.14-36). The group sat outside in the courtyard (13/09/2023; T 17.48). X said that, not long after that, Y went to the bathroom as she was not feeling well; subsequently they decided to leave (13/09/2023; T 18.13-40). X ordered an Uber (13/09/2023; T 18.42). X’s evidence was that arrangements had been made beforehand that X would stay at Y’s house (13/09/2023; T 24.9-10); and that they agreed to drop the applicant home along the way (13/09/2023; T 19.1-2).

The two complainants and the applicant waited out the front of the hotel for the Uber. While they were waiting, there was a period where the applicant and Y were crouched or seated on the ground with their backs against the wall. While in that position, the applicant made a motion with his hand (which was described in cross-examination as a “fingering” gesture) and X did a dance move (13/09/2023; T 47.6-48.14). Y also reached out her hand towards X. X remained standing, checking her phone for the Uber and holding a vape (13/09/2023; T 31.33-35). X said in her evidence in chief (13/09/2023; T 19.18-21.9):

The CCTV footage at Sir Joseph Banks Hotel (which became Ex C) was played to X in the course of her evidence in chief (see at 13/09/2023; T 29.30). X said that she had not seen it before then (13/09/2023; T 30.30-31).

Exhibit C shows X dancing with the applicant, with Y, on her own and with others in their group, as well as with others that had not been in the original group. The footage shows X slapping various people on the bottom (including Y and the applicant) and holding hands with various people while dancing (13/09/2023; T 42.39-40; T 43.1-2). In cross-examination, X denied that she had flirted with the applicant or that she was “grinding” (13/09/2023; T 34.33-42).

As to the events outside the Captain Cook Hotel, Ex D was played to X (at 13/09/2023; T 31.13) (see the timeline below of the events depicted on that exhibit). X said that she had seen the CCTV footage from the front of the Captain Cook Hotel on the same day as completing her police statement, but only after having completed her statement (13/09/2023; T 31.1-5).

In cross-examination, X was taken to her police statement in which she stated that “We were holding each other’s hands in the air and fooling around [at Sir Joseph Banks Hotel]”. X agreed that there was no “fooling around” at Sir Joseph Banks Hotel while the applicant’s partner was still there (13/09/2023; T 34.21-30). X also agreed that there was a “great deal of reciprocated affection” between herself and the applicant at Sir Joseph Banks Hotel, but only once the applicant’s partner left (13/09/2023; T 35.5-10).

As to X’s evidence in chief to the effect that the applicant had placed his hand on her leg while sitting down, and that it made her feel uncomfortable (while at the Sir Joseph Banks Hotel), X agreed that she did not manifest to anybody her feeling of being uncomfortable (13/09/2023; T 35.47-36.2).

As to the CCTV footage in Ex C (the Sir Joseph Banks Hotel footage), X was cross-examined (at T 37.28-38.44) as follows:

Questioned about Ex D, X did not have an independent recollection of the applicant making a “fingering gesture to her” but agreed that it looked that that was what he was doing (13/09/2023; T 47.11). On viewing the footage, X said that she only saw Y wiggling her fingers at her (and not making a “fingering gesture”, which she perceived the applicant to be performing); and agreed that following this, she started to dance (13/09/2023; T 48.14). X disagreed that she was “making her neck available” so that the applicant could kiss her; and said that she was leaning “the opposite way to show that I’m not interested” (13/09/2023; T 49.18-19).

X disagreed with the proposition that “throughout the evening there was absolutely nothing that occurred between you and the accused that was non-consensual” (13/09/2023; T 49.34-37).

After cross-examination about X’s level of intoxication and the events in the Uber, the cross-examination then concluded (at T 53.24-31) as follows:

There was brief re-examination of X going to whether she accepted that in her work role she had to be assertive (and with whom she was assertive in that role – not her work colleagues); and X confirmed that at the time of the events the applicant was a work colleague (13/09/2023; T 53.35-43).

X’s evidence was that, during the Uber drive (after the applicant had been dropped off), X asked Y whether the applicant had placed his fingers inside her. X said that Y said “Yeah, he actually did” and that Y became upset (13/09/2023; T 24.16-20, 48). Y made a complaint at work a few days later and then, with the support of a work colleague made a complaint to the police (13/09/2023; T 26; 14/09/2023; T 77.19-21). Following Y’s complaint, X also complained to the police about the applicant’s conduct (14/09/2023; T 119.29-35). The Crown refers to the events in the Uber as relevant only to place the complaint made by X in context and to place the Electronically Recorded Interview of a Suspected Person (ERISP) of the applicant (see below) into context (see Crown written submissions dated 4 March 2024 at [24]). It is not necessary here to set out the events in the Uber. Suffice to note that the applicant did not deny the digital penetration of Y, simply denying that it was without consent.

Relevant to Count 1, Y watched the CCTV footage in Ex D. Y denied making a “fingering gesture” when she put out her hand towards X (14/09/2023; T 89.4-9). Y’s evidence was that she was intoxicated and could not recall what either X or the applicant was doing outside the Captain Cook Hotel when they were waiting for the Uber (14/09/2023; T 67.11-12). In particular, Y gave no evidence in relation to any observations she made of the applicant having touched X either on the vagina or the buttock. Y’s evidence was that she did not recall seeing flirtatious interactions (such as kisses, or X slapping the applicant on the bottom) or “anything of an affectionate nature” between X and the applicant (14/09/2023; T 85.18-49).

None of the other witnesses called in the Crown case gave any evidence relevant to the incident the subject of Count 1.

The applicant participated in an ERISP on 8 February 2022. By then, the applicant had spoken to Y about what had happened. The applicant accepted that he had inserted his finger in Y’s vagina but said that it was consensual.

At the time of the ERISP, the applicant had not realised that X had made an allegation as to sexual touching involving X outside the hotel. The applicant said that “I didn’t touch [X] at all, I’m pretty Sure. That’s surprising, massively, yeah” (Q/A 27). When asked what they were doing before they got in the Uber, the applicant said “Nuh, we were all, like, playing around, mucking around, having a laugh. I don’t, I didn’t, like sexually touch [X], nuh” (Q/A 88). When asked whether he touched X in any way whilst waiting for the Uber, the applicant said “No, not that I recall, nuh” (Q/A 223). When asked whether he put his hand up X’s skirt, the applicant said “Not that I recall.” (Q/A 227). When told that there was CCTV footage of his hand going up the back of X’s skirt or dress, the applicant said “well, if it did it was all playful ‘cause that was sort of happening at thing, at, um Joe Banks…like we were dancing, play, being playful, but it wasn’t, it wasn’t anything … like that [sic]” (Q/A 229-232).

When asked whether he remembered X swiping her hands at him a number of times, the applicant said no; and that if someone swiped his hands away he would understand that to mean “Go away, stop, kind of thing….not interested” (Q/A 238-240).

The applicant was shown the CCTV footage (Ex D) and asked whether he could comment on what had been played at 22:41 (see below). The applicant said that he was just being playful but acknowledged that X had “backed off” (Q/A 271, 273). The applicant acknowledged that X had swiped his hand but said that it was “not a big deal ‘cause we’re still having a laugh now….” (Q/A 275). After being shown the CCTV at 22:43, the applicant was asked whether there was anything that he would like to say, and he said no (Q/A 280).

The Crown has provided the following timeline of the CCTV footage (Ex D) (see Crown’s written submissions at [17]):

The italicised entry is the act that the Crown particularised as the sexual touching offence the subject of Count 1 (see below).

After X’s evidence, the trial judge raised with the Crown the particulars for Count 1. The Solicitor Advocate appearing in the matter made it clear the Crown was relying on a touching at around 22:43:24 (see above) which was described as a hand lifting up the skirt from the rear and placing it on X’s buttock. The Solicitor Advocate acknowledged that the evidence of X was a touching of the vagina (14/09/2023; T 79.27-80.3).

In closing address to the jury (consistent with the way in which the incident was particularised in the above exchange with the trial judge), the Crown particularised the Count 1 incident at timestamp 22:43:24 on the CCTV footage (Ex D) as the alleged sexual touching (i.e., lifting X’s skirt and, variously, as placing or running his hand on her buttock) (see closing address at 15/09/2023; T 154-157). The Crown said:

The Crown submitted that the jury would reject the suggestions by the applicant in the ERISP that the conduct was playful (15/09/2023; T 156.8012).

At the close of the Crown address, in the absence of the jury, the trial judge queried the Crown’s position as to reliance on Ex D in light of X’s evidence that he touched her vagina over her underwear (15/09/2023; T 165.7-32):

Defence counsel then said that he was considering a directed verdict (15/09/2023; T 165.38-39).

There was then the following exchange with the Crown (at T 166.3-47):

The Solicitor Advocate then confirmed (at T 166.49-167.3), that the Crown relied only upon actual knowledge as to lack of consent in relation to Count 1.

Shortly after (at T 168.6-36) there was the following as to Count 1:

An application for a directed verdict in relation to Count 1 was made by defence counsel (at T 171.13-32). That application was refused. In that context, her Honour said (at T.172.21-28):

The Crown then referred to some of the cross-examination of X at T 38.20-40 (see above at [21]) where X had said she had continually swatted the applicant’s hands away and he knew that it was not consented to (cross-examination which the applicant submits was specifically only in relation to the CCTV footage at the Sir Joseph Banks Hotel; Ex C (see applicant’s written submissions at [35], [49])) (15/09/2023; T 172.50-173.4). The applicant argues that this evidence says very little, if anything, about X’s state of mind at the time of the incident at timestamp 22:43:24 in the Captain Cook Hotel CCTV footage (Ex D), which was hours later (see submissions at [49]). The Crown submits, to the contrary, that, properly understood, the reference to “swatting” was clearly a reference to the swatting of the applicant’s hands outside the Captain Cook Hotel; and that the applicant’s attempt to confine the answers of X (at T 38) to Ex C and the Sir Joseph Banks Hotel should be rejected (see Crown’s submissions at [46]). The Crown says that when the trial judge enquired as to whether counsel was talking about the Captain Cook Hotel or about Joseph Banks Hotel, counsel replied “In general overall” (noting 13/09/2023; T 38.49). The Crown says that it is clear that X, having seen the footage in Ex D and by her references to “swatting”, was talking about the whole sequence of sexual touching outside the Captain Cook Hotel.

Defence counsel submitted as follows in relation to Count 1, identifying an asserted “disconnect” in the Crown case (15/09/2023; T 178.14-22):

In summing up, her Honour referred to the elements in Count 1 (see SU 25- 31; and SU 37, where there was reference to intoxication playing no part in relation to X’s lack of consent). Her Honour also provided written directions to the jury comprising MFI #6 (the applicant here refers in particular to pp 1-5).

In relation to the issue concerning X’s oral evidence and the Crown case on Count 1, her Honour said (at SU 25):

In relation to the element of X’s lack of consent (element three), at SU 27-28, her Honour reminded the jury of the cross-examination at T 38 and said (at SU 28):

There is no ground of appeal in relation to the summing up. The sole ground of appeal is an unreasonableness ground, as noted above.

The nub of the applicant’s complaint as to unreasonableness of the verdict is not so much the inconsistency between X’s evidence and the particularised act relied upon by the Crown (see 13/09/2024; T 19.19-25, 46-47; T 20.11-12) but, rather, the absence of direct evidence from X as to the alleged single act of sexual touching which the Crown asserted was captured on CCTV footage at 22:43:24 or as to a lack of consent to such touching. The applicant says that the jury ought therefore to have had a reasonable doubt as to Count 1.

That said, the applicant accepts that the best evidence of what occurred was the CCTV footage (Ex D) (see AT 2.47) and says that this Court is in as good a position as the jury to assess that evidence (see AT.42ff). The applicant says that the advantage that the jury had in the present case is only ostensible.

The applicant notes that X was not taken to 22:43:24 on the CCTV footage and asked to identify anything in that frame; and says that the frame was not slowed down and played back to the jury at any point. The applicant argues that the Crown’s description of the applicant lifting X’s skirt and running his hand on her buttocks is just a characterisation by the Crown of the CCTV footage which had no support in the oral evidence, emphasising that X’s major complaint was an alleged touching on her vagina “from the front” (an act which the Crown eschewed as part of the elements of Count 1) (13/09/2023; T 20.16). I interpose here to note that the transcript extracted above at [15] records the witness saying that she was touched on the vagina “at the front” (not “from the front”) and that the applicant “would go from behind and pull [her] dress up” and had “gone underneath [her] dress”.

The applicant says that there was no complaint evidence from X (see submissions at [32]) (presumably referring to the period prior to the complaint to the police). The applicant also points to the fact that he made no admissions in his ERISP dated 8 February 2022 (Ex G) to touching X on her buttocks or vagina.

Emphasis is placed by the applicant on the fact that the cross-examination at T 38 (to which reference was made in the trial judge’s directions as relied upon by the Crown in relation to X’s lack of consent (at SU 28)) was in relation to the events captured on CCTV at the Sir Joseph Banks Hotel (Ex C), not the Captain Cook Hotel (Ex D); and not in relation to timestamp 22:43:24 in Ex D (see submissions at [54]). The applicant maintains that this falls well short of providing any real probative support for element three (lack of consent).

The applicant accepts that, as a general proposition, the Crown can prove a criminal offence beyond reasonable doubt without any oral evidence from a complainant (for example, relying upon inferences from CCTV footage and other circumstantial evidence). Further, the applicant accepts that, in a sexual offence trial, the Crown also has the benefit of extensive directions on the issue of consent (as occurred in the present case – the applicant here referring to SU 28-29 by way of example), including a direction that, although X may consent to some form of sexual activity at one point, this does not necessarily mean that X is consenting to another sexual activity on another occasion or point in time. However, the applicant submits that in the present case the nature and quality of the evidence is such that this court would have a reasonable doubt in relation to count one that ought to have been shared by the jury.

Addressing the respective elements of the offence, the applicant makes the following submissions.

As to the first element (intentional touching), the applicant accepts that there may well be an inference from the CCTV footage in Ex D at timestamp 22:43:24 that the applicant touched X’s buttocks (though noting that the Crown alleged a running of his hand across X’s buttock). However, the applicant emphasises that there was no direct evidence (from X or anyone else) providing a link between flipping X’s skirt and actually making contact with her buttock at that timestamp. The applicant says that, in relation to a touching that might have been other than on the vagina, the high point of X’s oral evidence was that “He would go from behind and pull my dress up. He did try and touch me underneath my dress as well. It was all in that same location” (emphasis added by the applicant) (13/09/2023; T 19.46-47). Hence, the applicant suggests that X’s own oral evidence contradicted the Crown case on Count 1 in that X simply suggested an attempt (i.e., “try”) to touch under her dress which did not succeed.

As to the second element (that the touching was sexual), there is no issue that, if there was an intentional touching in the way alleged by the Crown at trial, it was “sexual”.

As to the third element (X’s lack of consent), the applicant points to the absence of oral evidence from X as to her state of mind at timestamp 22:43:24 in Ex D. The applicant accepts that there were points in Ex D that X “flinched” or moved away in response to something the applicant had done; and accepts that this is perhaps some indicator of her state of mind at various times. However, the applicant points to other conduct on the part of X (see below) which he says is inconsistent with that and bears upon her state of mind (and his own state of mind) at a time proximate to timestamp 22:43:24. The applicant says that, when regard is had to the entire context proximate to the timestamp relied upon by the Crown, there is a reasonable doubt on the issue of consent.

By way of example, the applicant points to the following conduct at timestamps both immediately before and after the timestamp nominated by the Crown in relation to Count 1. First, that at 22:40:45, after putting on her white jacket, X leans in and hugs the applicant. Second, that at 22:43:36 X makes no visible objection to the applicant placing his left hand on her lower back/buttock above her clothing and making a scratching motion; and at about 22:43:54 appears to remain very close to the applicant and moves into him. Third, that at 22:45:12 the applicant appears to lean in and lick or kiss X’s right ear area, with no visible objection from her (noting that she does not move) and that three seconds later, the applicant appears to do the same (twice) but this time X flinches and moves her head. Fourth, that at 22:45:47 X appears to make her neck or ear available for the applicant to kiss/lick, which he appears to do, but then flinches. This last example is relied on by the applicant as an instance of X likely consenting to the act (and even encouraging it) but flinching nonetheless (the applicant also refers in this context to 22:45:49). Pausing here, it may be noted that the proposition that X made her neck “available” so that the applicant could kiss it was put to X when she viewed Ex D and she rejected this, saying that “I’m leaning at the opposite way to show that I wasn’t interested” (13/09/2024; T 49.18-19). In any event, the applicant says that X’s flinching or swatting is not unequivocal evidence of lack of consent in the context of the dealings between the applicant and X proximate to timestamp 22:43:24.

In oral submissions, counsel for the applicant took the Court to the CCTV footage at the above time stamps (22:40:45, 22:43:46, 22:45:12, and 22:45.49) in support of these submissions (AT 15.34-17.31).

As to element four (the applicant’s knowledge of lack of consent; i.e., actual knowledge), the applicant says that the above consideration would equally apply. The applicant says that X’s actions in response to his advances and her own affectionate conduct bears upon his state of mind. It is submitted that on some occasions, X appears to welcome or even encourage the advances (such as at timestamp 22:45:47 in Ex D where the applicant says that X appears to make her neck or ear available for him to kiss or lick but then flinches). The applicant submits that this flinching could not reasonably be understood as a lack of consent. Hence, the applicant says that X flinching to other conduct is also not unequivocal evidence of lack of consent in the applicant’s mind. The applicant also emphasises the reciprocated affection between X and the applicant at the Sir Joseph Banks Hotel after the applicant’s partner had left.

The applicant submits that inferences may be drawn from the CCTV footage as to the applicant’s state of mind, in particular he argues that it can be inferred that the “great deal of reciprocated affection” would carry on throughout the evening in his mind. Hence, it is said that the jury ought to have had a reasonable doubt on the issue of consent.

The applicant thus submits that this Court would have a reasonable doubt in relation to Count 1; and that the evidence at trial was not sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of Count 1.

The Crown says that the CCTV footage showed the applicant touching X underneath her dress multiple times at the front and the back. The Crown submits that the issues at trial were whether the Crown could prove touching on the buttocks, in circumstances where X had given evidence about a touching on the vagina; and whether the Crown could prove a lack of consent to this act of touching, where there was evidence of a general lack of consent to touching at the relevant time.

In that regard, the Crown submits that the CCTV showed the act of sexual touching on the buttocks and that the responses of X indicating a lack of consent to the applicant touching her underneath her dress outside the hotel, and her evidence she was swatting the applicant’s hand away from her on multiple occasions as depicted in the CCTV, were of sufficient quality to prove the sexual touching of the buttocks without her consent. (I agree.)

The Crown accepts that X gave evidence in chief specifically nominating a touching of the vagina but says that there was clearly other touching that occurred in the relevant sequence of events as depicted in Ex D and (as the applicant himself appears in his submissions to accept) there is no requirement that there be direct evidence from X about the touching being on the buttock where there was evidence available on the CCTV to prove that act of sexual touching. The Crown says that X’s oral evidence about the nature of the touching was not inconsistent with the particulars nominated by the Crown but, rather, it was incomplete. As to the applicant’s complaint that X was not taken to that part of the CCTV at 22:43:24 and asked to identify anything in that timeframe or that the frame was not slowed down and played back to the jury, the Crown says that this does not establish that the verdict was unreasonable or that the verdict cannot be supported when regard is had to all the evidence led in the case.

As to the particularisation of the act of sexual touching, the Crown says that this was shown on the footage; and points out that, although X said a few times that the applicant was lifting up her dress and “trying to touch” her inappropriately, she also referred to swatting the applicant every time he touched her. The Crown says that this element (intentional sexual touching) is established having regard to all of the evidence including, in particular: (i) Ex D at 22:43:20, which the Crown says shows an act of sexual touching of X underneath her skirt, submitting that the only rational inference from that footage is that the applicant’s hand is on X’s buttock; (ii) the reference by X to the applicant repeatedly lifting up her dress and touching her on “the vagina as well” (13/09/2023; T 19.19-20), which the Crown suggests there had been touching elsewhere underneath her dress; and (iii) X’s evidence in chief that she had told the applicant to stop it “every time he did it” and she would swat him away “every time [he] touched [her]” (13/09/2023; T 19.33, 42), the Crown emphasising that the lack of consent was to “every” act of touching (i.e., more than once, underneath her dress). The Crown says that X’s lack of recollection, when asked in chief whether “apart from doing anything like lifting your dress up or touching you underneath the dress, did he do anything else” was in response to a question directed to whether there was anything other than touching underneath the dress (and not about whether she could recall other touching underneath the dress) (13/09/2023; T 20.4-9).

Thus, the Crown submits that it was well open to the jury to find from the CCTV and X’s evidence generally that the applicant touched X on the buttocks after lifting up her skirt.

As to the issue of consent, the Crown submits that, on a fair and rational analysis of all the evidence, it is clear that X’s lack of consent extended to all the acts of sexual touching underneath her skirt by the applicant when she was standing outside the Captain Cook Hotel. The Crown says that this is not a case where there was an “absence” of evidence from X about lack of consent that could be used in relation to the act of sexual touching on the buttocks; rather, the evidence of X was that she did not consent to any of the acts of touching under her dress. The Crown says that it is clear that this extended to the touching particularised, noting the unqualified terms of X’s evidence supported by her physical reaction to the applicant’s behaviour as he repeatedly placed his hand under her dress (including in response to the touching of the buttocks that was particularised as the act of sexual touching at 22:43:20).

The Crown argues that X’s answers in cross-examination (as to questions relating to her slapping the applicant’s bottom and the suggestion that her swatting of the applicant’s arm was in a playful sense) should be understood in the context that Ex D was played to X in chief and before her cross-examination commenced. Thus, the Crown submits that X was no doubt well aware, as was the jury, that Ex D had depicted multiple occasions where the applicant had touched her underneath her skirt, at the front and from the back, and where she had swatted his hand away. It is noted that X said that “Well after he did it a few times and I continually swatted his arm away, you would think he would give up, he knew that it wasn’t consensual. If he had swatted my arm away, I would have understood the same” (13/09/2023; T 38.37-39). I interpose to note that the reference to swatting here is significant, as I observed no swatting by X of the applicant’s hands in the Ex C footage – so the evidence of X that was relied upon for the Crown as to lack of consent must logically have extended to a lack of consent about the incidents outside the Captain Cook Hotel even though the questioning at that point in the transcript had related to the events at the Sir Joseph Banks Hotel.

The Crown refers to her Honour’s summing up as to the absence of consent (at SU 27) in this context:

The Crown cavils with the applicant’s submission that the jury had no tangible benefit over this Court, in determining whether the verdict is unreasonable (referring to the applicant’s written submissions at [24], [57]). In particular, while the Crown accepts that this Court is in a position to make an independent assessment of the nature of the act of touching as depicted on the CCTV and to draw inferences from it, the Crown emphasises that the jury had the advantage of seeing and hearing X, watching her reaction to the CCTV as it was played to her, and assessing her demeanour during her denials of flirting, kissing, and responding to the suggestion that the type of touching was all “part and parcel” of affectionate and playful physical contact between her and the applicant on this night. The Crown says that this was important in understanding where X “drew the line” or distinguished between playful and unacceptable conduct. The Crown argues that the manner in which X answered these questions was relevant to an assessment of her state of mind as to the lack of consent when the applicant was touching her under her skirt at all times as depicted on the CCTV footage. The Crown argues that this is even more important where the applicant points to X’s conduct before and after the sexual touching to suggest that her evidence regarding her lack of consent to this conduct cannot be accepted beyond a reasonable doubt.

The Crown submits that X’s other interactions with the applicant before and after the sequence of him lifting up her dress and touching her underneath and her swatting his hand away do not give rise to a reasonable doubt that she was not consenting. In that regard, the Crown says that the fact X hugged the applicant before he sexually touched her underneath her skirt can have no logical bearing on her lack of consent to the applicant touching her for the seventh or eighth time underneath her dress after having swatted his hand away on multiple occasions; and, similarly, that X’s lack of visible reaction (noting that she is facing away from the camera) to the applicant placing his hand on her lower back/bottom over her clothing has little bearing on whether she consented to the applicant touching her underneath her skirt on her buttocks where she had pushed his hand away on multiple occasions for doing such an act.

As to the applicant’s comparison between X flinching away from the applicant when he tried to kiss her neck, and the applicant touching X underneath her skirt and swatting his hand away, the Crown says that this does not give rise to a reasonable doubt as to consent. The Crown says that the applicant’s persistent attempts to kiss X on the neck began at 22:44:53 (where the applicant grabbed X’s upper arms and pulled her in towards him with her back against him and hugged her around the neck); that the applicant then put his tongue in her ear at 22:45:13 (which the Crown accepts did not appear to elicit a visible reaction); and that when the applicant did this again at 22:45:16, X pulled her head away from the applicant; and that at 22:45:19 when the applicant tried to do this again X moved away. It is noted that at 22:45:51 the applicant leant towards X with his tongue out and she moved away; and that at 22:45:47 X walked towards the applicant with her neck at an angle and when he kissed her on the neck, she pushed him away. The Crown points out that at 22:45:56 when the applicant leant and grabbed X’s neck as if to kiss her, X pushed him off; that at 22:46:12 when the applicant did this again X pulled away; and that at 22:46:24 the applicant kissed her neck. The Crown also points to X’s shocked reaction at 22:46:57 when the applicant lifts her skirt up from the back and she turns around just before the Uber arrives.

The Crown notes that X rejected a suggestion that she had “made her neck available to the applicant to kiss” (13/09/2023; T 49.19); and says that this one act occurred among repeated attempts by the applicant to stick his tongue in her ear and kiss her and where she had consistently pulled away. The Crown also points to X’s evidence that she did not consent to the applicant kissing her or licking her ear and she did not view this to be “part and parcel” of consensual activity (13/09/2023; T 36.37-41).

The Crown submits that, in circumstances where the applicant was X’s friend and work colleague, the degree to which X remonstrated with the applicant as to his attempts to kiss her may have differed compared with him touching her underneath her clothing on her bottom or vagina where she clearly drew the line; and that whether or not X flinched to demonstrate a lack of consent in response to all of the applicant’s attempts to kiss her does not mean that X’s oral evidence that she told the applicant to stop it and cut it out every time he “did it” (i.e., touching her underneath her skirt) should not be accepted, thereby indicating her lack of consent. The Crown points out that (as the applicant accepts) this Court must proceed on the basis that X’s evidence was accepted as credible and reliable (citing Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]; Rubinstein v R [2023] NSWCCA 288 at [94] (Adamson JA, Button J and RA Hulme AJ agreeing)).

The Crown argues that the applicant’s submission as to the absence of consent fails to take into account the multiple times that X swatted the applicant’s hand away from underneath her skirt to indicate that kind of touching was to stop; and that X gave evidence that she told him to cut it out. The Crown submits that the CCTV evidence and evidence of X establishes that at the time of the touching of X on the CCTV at 22:43:24 X was not consenting to the sexual touching; and that it was open to the jury to make such a finding beyond a reasonable doubt.

Finally, as to the applicant’s knowledge of lack of consent, the Crown points out that the jury was asked to draw inferences from the conduct of X depicted on the CCTV that at the time of the touching that the applicant knew that X was not consenting to being touched underneath the skirt on her buttocks. The Crown says that knowledge of lack of consent was demonstrated by the CCTV evidence showing that X persistently resisted the applicant’s efforts to touch her underneath her dress, coupled with the direct evidence of X that she swatted him away every time he touched her and told him to stop it. It is noted that X said in her evidence that “When you say ‘stop it’ and ‘cut it out’ I believe that is not consenting” (13/09/2023; T 48.36-37). The Crown says that based on the combination of evidence it was well open to the jury to find that the applicant knew that X did not consent to him sexually touching her on the buttocks.

As to the applicant’s submission that X made “welcoming or encouraging advances” at 22:45:47, the Crown says that the CCTV footage must be examined in light of the other conduct of X pushing the applicant away and her evidence that she was leaning the opposite way to show that she was not interested. The Crown submits that although the CCTV footage could suggest that the acts of kissing or putting a tongue in X’s ear may be viewed as “horseplay”, this is quite different conduct to touching X under her dress on her buttocks and vagina. The Crown says that the sequence of events after the sexual touching under X’s dress does not give rise to a reasonable doubt as to the applicant’s knowledge of lack of consent. The Crown points out that X had swatted his hand away from underneath her skirt on multiple occasions before the act relied upon for Count 1.

The principles applicable to an unreasonable verdict ground of appeal are well known (see M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25) and were not here in dispute. They were summarised by Beech-Jones CJ at CL (as his Honour then was) in AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 at [99]-[104] (Harrison J, as his Honour then was, agreeing).

Briefly, this Court must be satisfied, on its own independent assessment of the sufficiency and quality of the whole of the evidence, that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Proper regard must be had to the advantages enjoyed by the jury in seeing and hearing the witnesses (and, in particular, X); the Court proceeds upon the assumption that the evidence of X was assessed by the jury to be credible and reliable; and the record of the trial is to be examined to see whether, notwithstanding that assessment of X’s credibility and reliability, the jury acting rationally ought nonetheless to have entertained a reasonable doubt as to proof of guilt (whether by reason of inconsistencies, discrepancies or other inadequacy; or in the light of other evidence).

As adverted to above, the Ex D footage was played in Court during the hearing of the appeal (the Ex C footage was available but was not played in Court, though I have since viewed it in chambers). Counsel had the opportunity to draw attention to any particular matters they wished the Court to observe from the Ex D footage and to make submissions in relation to the footage (see from AT 12.32). The description of events in the summary provided by the Crown is a fair record of what can be observed from the footage. What is very clear from the Ex D footage is that there were a number of occasions (before and after the particularised act of touching) where the applicant flipped or lifted X’s skirt (including at least one occasion where bare skin on her buttock was exposed to the camera); and multiple occasions where X swatted away the applicant’s hand when he did so.

In the present case, having reviewed all of the evidence, I am not left with a reasonable doubt as to the guilt of the applicant as to Count 1. The CCTV footage of what occurred outside the Captain Cook Hotel makes very clear that at the timestamp particularised by the Crown the applicant lifted X’s skirt and placed his hand on her buttock; and there is sufficient motion at that point to conclude that the applicant’s hand briefly ran up the buttock. There was no dispute that such a touching would amount to sexual touching.

Whether the applicant’s hand touched X’s vagina (over her underwear) “at the front” is less clear to discern from the CCTV (not least because X was mainly facing away from the camera) and hence would have been open to reasonable doubt. However, the Crown did not particularise this as the act of sexual touching. The fact that X made reference to touching on the vagina more than once does not give rise to a reasonable doubt as to what was clearly visible from the CCTV (namely, that there was a sexual touching on her buttock). Nor does the lack of express reference by X to a touching on her buttock assist the applicant when that is clearly visible on the CCTV footage. X’s own evidence was that the touching was all in the same location. That must be understood as referring generally to the genital area and buttocks since it is very clear that the applicant touched X’s buttock under her skirt at least once. X’s evidence of the applicant trying to touch her is also supported by the numerous attempts to lift up her skirt – which, as noted, on at least one occasion exposed her buttock.

As to the issue of consent, the CCTV also makes abundantly clear that each time the applicant lifted or flipped X’s skirt she pushed or swatted his hand away. The Crown’s timeline of the footage (extracted above at [33]) sets out the number of times X either swatted or batted the applicant’s hand away. Even leaving aside X’s oral evidence, it is perfectly clear from the CCTV footage that X was not consenting to such conduct (whatever else she may have consented to by way of hugging, touching her lower back or the like). It was open to the jury (which had the advantage of seeing X give evidence) to accept her evidence that she told the applicant to stop and to cut it out when he was touching her. X’s evidence (at T 27.8-11) was very clear. X did not accept that she consented to the “touching” that occurred outside the Captain Cook Hotel; and her evidence (at T 38) to the effect that the continued swatting of the applicant’s hand indicated a lack of consent must have been a reference to what occurred outside the Captain Cook Hotel (as I indicated earlier).

It is inconceivable that the applicant was not aware that X was not consenting to such conduct. Whatever the “reciprocated affection” earlier in or throughout the night, and whether or not X was prepared to permit touching on the outside of her clothing or hugging or even a kiss or lick on her neck (i.e., however one interprets the flinching when some of that conduct occurred), it is abundantly clear from the constant swatting away of the applicant’s hand that X did not consent to the applicant lifting her skirt and placing his hand on her buttocks. The suggestion that this was mere horseplay or a playful swatting by X is ludicrous when one views the CCTV footage. The jury clearly accepted X as a credible witness on that issue. That conclusion was well open to the jury to reach having regard to all the evidence. Indeed, in his ERISP the applicant himself appeared to accept that if someone swiped his hands away he would understand that to mean “Go away, stop, kind of thing….not interested” (Ex G; Q/A 238-240).

Accordingly, I am not left with a reasonable doubt as to the guilt of the applicant in respect of Count 1. The sole ground of appeal is not made good. Leave to appeal should be granted but the appeal dismissed.

ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Ward P. I have independently examined the CCTV footage and the photographic evidence. I have also read the transcript.

Notwithstanding that the sole ground of appeal is that the verdict is unreasonable, much attention was directed to the hiatus in the oral evidence of the complainant relating to touching the buttocks. However, there is abundant footage relating to such conduct.

It is unnecessary to refer to the other sub-issues. It is sufficient to state that, having independently assessed all of the evidence, I consider there is no reasonable doubt as to the guilt of the appellant.

I have, as stated, read the reasons for judgment of Ward P and cannot usefully add to her Honour’s remarks. I agree with her Honour’s reasons and the orders she has proposed.

WRIGHT J: I agree with the orders proposed by the President. I also agree with her Honour’s reasons which reflect my reasoning and the conclusions I reached on my independent assessment of the evidence. In these circumstances, it is not necessary for me to make any additional comments in that regard.”