Bell v Regina

THE COURT: Kenneth Bell (the applicant) was convicted of three sexual offences after a trial by judge alone. He appealed to this Court against the convictions and the severity of the sentences imposed. As the sole ground of appeal against conviction gave rise to a question of mixed fact and law, leave to appeal was required. On 29 May 2017, we ordered that the convictions be quashed and that verdicts of acquittal be entered, reserving our reasons. These are our reasons for making those orders.

The appeal took an unusual course. The applicant suffers from profound cognitive impairment as a result of having been assaulted whilst in custody on remand in respect of the charges the subject of this appeal. Shortly before the hearing of the appeal, following discussions with his legal representatives as to the manner in which the appeal should be conducted, the applicant informed them that he wished to terminate their services. At the outset of the hearing of the appeal, Mr Coady, who had been briefed to appear for the applicant, informed the Court that his instructions at that point were confined to seeking an adjournment. An affidavit sworn by the solicitor on the record for the applicant revealed a basis for doubting the applicant’s capacity to give proper instructions at that stage.

In the circumstances, before determining the future course of the hearing, we invited the Crown to address the Court first, confining attention to the conviction appeal. The Crown, very fairly, acceded to that request. After considering the Crown’s written and oral submissions and the written submissions filed on behalf of the applicant, we were persuaded that the appeal against conviction should be allowed and that it was not necessary to hear from the applicant before making orders to give effect to that conclusion. In the circumstances, it was not necessary to determine an application that had been foreshadowed before the hearing for leave to rely upon an additional ground of appeal, or to consider the appeal against sentence.

The applicant’s cognitive impairment also had an impact on the course of the trial. The charges against him arose from a single incident on 28 April 2013. The applicant and the complainant had previously been in an intimate relationship and, so far as the applicant understood, remained friends as at that date.

The applicant was arrested on 29 April 2013 and was refused bail. He was assaulted on 14 June 2013, suffering a traumatic brain injury. He underwent surgery and spent two weeks in hospital.

The applicant was granted bail in the Supreme Court on 19 July 2013 but was returned to custody after breaching his bail conditions by resuming regular contact with the complainant. That happened again.

As at December 2014, the applicant was assessed unfit to stand trial. Although his condition subsequently improved to a point where he was considered fit, his impaired ability to process information prompted his legal representatives to make the application for a trial by judge alone. The Crown consented to that application.

The evidence is considered in detail below. It is convenient to introduce that discussion with a brief summary of the Crown case. What follows is drawn primarily from the Crown opening at trial. The complainant was aged 28 years at the time of the alleged offences. She was married but had been separated from her husband for a number of years. She had three daughters, then aged 2, 5 and 7. The applicant had an adult daughter who lived in the same street as the complainant.

The complainant and the applicant had been in an intimate relationship for some time before April 2013. The evidence as to when their relationship began and ended was unclear and the relationship itself was one of fluid description. The complainant’s evidence was that they were together for a continuous period of about six months commencing in about October 2012.

It was common ground at the trial that, for some months before 28 April 2013, the applicant and the complainant were in an intimate relationship and were living together at her house. It was also common ground that, after that relationship ended, they remained on friendly terms. The applicant regularly visited her and helped her around the house and there were occasions during that period when consensual sexual activity took place.

The complainant suffered from scoliosis which frequently caused her back pain. It was a regular feature of their relationship that the applicant would give her massages to ease her pain. Sometimes, but not always, the massages led to sexual intercourse.

On the evening of 27 April 2013, the applicant and a friend, a man named Blaise, travelled to Parramatta together so that Blaise could collect some medication. The complainant collected them in her car and they all went back to her place, where they consumed a large amount of alcohol. The complainant became ill and vomited.

During the night the complainant exchanged a number of text messages with her ex-husband informing him that the applicant was at her house and that she wanted him out. The messages represented that the applicant was uninvited and had let himself in, which was contrary to the evidence of the applicant at trial. The complainant gave contradictory accounts as to how the applicant came to be at the house that day, initially stating to police that he had let himself in, but in cross-examination stating that she did not remember whether he did so that day. The detail of the messages is considered later in this judgment.

The following day, the complainant felt unwell. The Crown case was that the applicant attempted to give her a cuddle in the kitchen area but that she told him she was not feeling well and that she was not in the mood for a cuddle. The applicant then offered her a massage and she agreed. They went to the bedroom and she removed her top. She was not wearing a bra. The applicant massaged her, starting at the upper back and making his way down towards her hips. At some stage during the massage a neighbour, Sharon White, came to the front door. The complainant went to speak to her before returning to the bedroom to have the massage continued.

The applicant pulled the complainant’s tracksuit pants down lower, together with her underwear, and massaged her legs and bottom. It was the Crown case that the complainant told him at that stage that she did not want to have sex as she was not in the mood.

The applicant started to rub her groin area and “touched the side of her vagina”. It was the Crown case that, at that stage, she grabbed his hands and told him that she did not feel comfortable and “please don’t”. The Crown alleged that the applicant then inserted a finger in the complainant’s vagina in a rough manner and that that was done without her consent. That was the basis of count 2 on the indictment, a charge of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW).

It was the Crown case that the applicant then rolled the complainant over onto her back and commenced to massage her stomach and chest area and that he, at some stage, touched and kissed her breasts and nipples. That was the basis for count 1 on the indictment, a charge of assault with an act of indecency contrary to s 61L of the Crimes Act.

The Crown alleged that the applicant then leant over the complainant with his hands on either side of her upper body and that, whilst he was in that position, he used one of his hands to remove his own pants and expose his penis. The Crown alleged that he grabbed hold of his penis and attempted to insert it into the complainant’s vagina and that she was resisting that attempt by placing a hand over her vagina saying “please don’t, I don’t want to”. It was the Crown case that the accused continued to attempt to insert his penis in her vagina and that he attempted to push her hand away from that area before desisting. That was the basis of count 3 on the indictment, a charge of attempted sexual intercourse without consent contrary to s 61I and s 344A(1) of the Crimes Act.

The only ground of appeal in relation to the conviction is “that the verdict of the trial judge is unreasonable or cannot be supported by the evidence”. The ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW), which provides:

The nature of an appeal on that ground after a trial by judge alone was considered by the High Court in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. The Court noted the provisions of s 133(1) of the Criminal Procedure Act 1986 (NSW), which provides that a judge who tries criminal proceedings without a jury, may make any finding that could have been made by a jury on the question of the guilt of the accused person and that any such finding has, for all purposes, the same effect as a verdict of a jury. The Court considered that the reference to the judge’s “finding” in that context was to be understood to refer to the ultimate finding of guilt or otherwise, as opposed to the findings of fact leading to the ultimate finding: at [6] per French CJ, Bell, Keane and Nettle JJ; per Gageler J at [80].

The Court held that the combined effect of the two sections is that a judge’s finding of guilt “is not to be disturbed [under s 6(1) of the Criminal Appeal Act] unless there is no or insufficient evidence to support the finding, or the evidence was all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice”: plurality at [12]; and see Gageler J at [82]-[83].

In the case of an appeal from a jury verdict, the approach this Court should take to an appeal invoking the first limb of s 6(1) is well settled; the task is to review the whole of the record of the trial and to make an independent assessment of the evidence, both as to its sufficiency and its quality. It is not enough if a review of the evidence establishes that it was open to reach a different conclusion. Conversely, the question is not whether there was evidence on which a jury could convict: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] per Hayne J. If, after giving full weight to the primacy of the tribunal of fact, the appellate court is left in reasonable doubt as to the verdict, it is only where the advantage of the tribunal of fact in seeing and hearing the evidence is capable of resolving that doubt that the Court can conclude there was no miscarriage of justice.

The decision in Filippou makes plain that those principles also govern an appeal invoking the first limb of s 6(1) from a finding of guilt after a trial by judge alone. In such a case, however, the task of the appellate court is complicated by the need to consider the judgment of the trial judge. In the case of a jury verdict, a court of criminal appeal does not have access to the reasons for the verdict. The court in that case is confined to an assessment of the evidence, the submissions of counsel and the directions of law given by the trial judge.

In the case of trial by judge alone, the judgment of the trial judge must include the principles of law applied by the judge and the findings of findings of fact on which the judge relied: s 133(2) of the Criminal Procedure Act.

The plurality in Filippou proceeded on the assumption that, assuming the trial judge has complied with that requirement, the appellate court in an appeal from the verdict of a judge should have regard to the judge’s reasons.

In a separate judgment, Gageler J specifically considered the place of the trial judge’s reasons in the determination of an appeal under s 6(1) of the Criminal Appeal Act. His Honour said at [83]:

The observations in the joint judgment at [12] and of Gageler J at [81]-[83] suggest that, to the extent that the argument in support of a ground of appeal under s 6(1) takes issue with the correctness of the trial judge’s intermediate findings of fact, this Court must have regard to the reasons stated by the trial judge.

The applicant in the present appeal did not rely upon errors of law or fact in the reasoning of the trial judge as discrete appeal grounds. The sole ground of appeal was that the verdict is unreasonable or cannot be supported having regard to the evidence. However, the submissions in support of that ground ultimately rested on alleged inconsistencies and discrepancies in the complainant’s evidence and the existence of an alleged motive to lie. We took the view, in the circumstances, that in undertaking an independent assessment of the evidence (as we must), we should have regard to the way in which the trial judge dealt with those matters.

Our assessment of the evidence in the present case has left each member of the Court in doubt as to the applicant’s guilt. With great respect to the trial judge, and making full allowance for the advantage enjoyed by her Honour in hearing the witnesses, we have concluded that there were so many significant inconsistencies and anomalies in the evidence as to point unequivocally to the conclusion that the verdict was unreasonable, or cannot be supported, having regard to the evidence.

Our conclusion is reinforced by a sense of unease as to the course of the trial. While no specific error in the conduct of the trial is alleged on behalf of the applicant, there are aspects of the course of the trial which, in our respectful opinion, inform an assessment of the reasonableness of the verdict.

Each of those aspects of our deliberations is explained below.

The trial judge gave herself the appropriate legal directions and no complaint is made in that regard. In addition to the evidence of the complainant, the Crown case relied upon evidence of complaint and alleged admissions. The alleged admissions were contained in recorded telephone conversations between the applicant and his mother, niece, daughter and ex-partner whilst on remand shortly after his arrest. Her Honour considered all of that evidence in her reasons.

The complainant had made a number of statements prior to giving her evidence at trial. The first version was given to Detective Senior Constable Scicluna when she attended the complainant’s home late on the night of 28 April 2013. She was taken to Westmead Hospital, where she gave an account to a forensic nurse, Danielle Birmingham. Ms Birmingham took contemporaneous notes as the complainant spoke. She gave another, brief account to Senior Constable Ball and Detective Senior Constable Gibson when they attended her home the next morning, 29 April 2013. Later that day, she participated in an electronically recorded interview with police. She participated in another electronically recorded interview with police on 4 June 2013.

There were significant inconsistencies in the complainant’s versions of events, as between the various statements that she made prior to giving evidence, as between those statements and the evidence that she gave in court, and within the account she gave in her evidence. Her Honour considered those inconsistencies but was not prepared to make findings that any particular inconsistency reflected adversely on the complainant’s credit.

Not only were there numerous inconsistencies in the accounts that the complainant had made at various times, a further difficulty with her evidence is that she was unable to remember which versions she had recounted to various people and thus was unable to explain her prior inconsistent statements. Again, her Honour made no adverse findings regarding the complainant’s almost complete inability to remember what she had told either police or the nurse. Rather, her Honour noted that, “She appeared genuine in her inability to recall earlier accounts and conversations”. Although, in so finding, her Honour was satisfied that the complainant was telling the truth about not being able to remember certain matters, her Honour did not go on to make any findings as to whether her poor recollection adversely affected her reliability as a witness and how this was relevant to the question of whether her Honour could be satisfied beyond reasonable doubt of the applicant’s guilt.

It is convenient to explain our doubt as to the applicant’s guilt (based on our own assessment of the evidence) by reference to the factual findings made by the learned trial judge, the evidence upon which her findings were based and our reasons for making either the same or different findings.

The complainant gave a number of inconsistent accounts as to how the applicant came to be in her home on the morning of the alleged sexual assault. She told the nurse that the applicant had entered her residence that morning at midday through the front door, which was unlocked. She told police who attended her home at 10:30pm on 28 April 2013 that, “My ex came over to my house today. He just let himself in”. In her second recorded interview with police, she stated that the applicant was present when she woke up, but in her evidence in court she could not remember saying that to police. In her evidence in chief, she stated that she had woken up “round lunch, just before lunch time” and that no-one was there when she woke up. She stated that the applicant and Blaise came over to her house sometime that morning together. The Crown conceded during the cross-examination of the complainant that she had told police in her second statement on 4 June 2013 that the applicant had been at her house all morning. The complainant did not recall saying that to police and maintained her evidence that she could not remember anyone being at her house when she woke up.

The complainant did recall the applicant cleaning her and putting her to bed the night before, after she had vomited. There was evidence that the complainant slept late because she had become sick, vomited and passed out the night before. The applicant had fallen asleep after putting her to bed. He awoke before her in the morning and prepared breakfast for her children. The weight of the evidence is that the applicant had stayed overnight. Despite this, the complainant conveyed the impression when first spoken to by police and the nurse that the applicant was an uninvited guest in her home that morning.

The trial judge made a finding, contrary to the evidence of the complainant, that “the weight of the evidence” was that the applicant stayed the night. Despite this, her Honour made no finding that this reflected adversely on the complainant’s credit in any way.

We are satisfied that this evidence impacts adversely on the complainant’s credit, or perhaps more accurately, the reliability of her evidence. The inconsistencies meant, at the very least, it was necessary for the trial judge, on a review of the evidence, to scrutinise her evidence with considerable care, to satisfy herself beyond reasonable doubt that the offences in question were committed. We do not think that the approach of the trial judge in her reasons, which we have set out below, gave that necessary degree of scrutiny to her evidence.

The complainant gave differing accounts as to how count 2 was said to have been committed. Count 2 was the first in time of the three alleged offences. There were three aspects of the complainant’s account in which her evidence changed: how her pants were removed, how she came to roll over, and whether the applicant’s finger remained in her vagina as she rolled over.

At trial, the complainant gave evidence that, before the massage commenced, she took her top off “freely” and was not wearing a bra. She stated in cross-examination that she did not remember telling the police that it was the applicant who took her top off.

She also gave different versions as to how her pants came to be removed. She told the nurse that the applicant “slid” her pants off whereas she told police that same night that he “ripped” them off. At the trial, the complainant said in cross-examination that she did not take her pants off willingly, but that the applicant took them off “roughly”. She agreed that her pants needed to be lowered in order for the applicant to massage her lower back, but not to her ankles. She said that he didn’t “slide them down” and that she, “…struggled keeping those pants on because he was being so rough”. She said that he, “…ripped them down to my ankles to massage me”. She agreed that in her interview with police on 29 April 2013 she said nothing about any struggle to keep her pants on.

The evidence of Nurse Birmingham was that she took contemporaneous notes of what the complainant told her. Some of those notes were in quotation marks, recording the complainant’s words. Other parts of her notes were not in quotations marks, being a summary of what the complainant had said. The nurse recorded that he “slid” her tracksuit pants down in the summary part of her notes.

The finding of the trial judge was as follows:

Although it is to be accepted that the nurse may have inaccurately recorded what occurred, there is a significant difference between the words “ripped” and “slid”, such that an error in those terms seems unlikely. The complainant also changed her account of how she came to roll over from lying on her stomach to lying on her back during the massage. During cross-examination, the Crown Prosecutor conceded that the following question and answer were recorded in the complainant’s second interview with police on 4 June 2013: “So you have told him that you don’t want to have sex with him, you weren’t in the mood, but you rolled over and you said ‘yes’?” The complainant could not remember saying that to police. There was also evidence that the account that the complainant gave to the nurse at Westmead Hospital that night was that she had turned over after being asked to do so. Again, when this was put to the complainant she said that she could not remember.

In her evidence in court she stated for the first time that she was forced to roll over before describing it as a “joint” effort. The trial judge’s finding was as follows:

There is a difference between being forced to roll over and rolling over voluntarily in the context of an alleged sexual assault. This aspect of the complainant’s account entails an inconsistency which, viewed in the context of her evidence overall, has contributed to our doubt regarding the applicant’s guilt.

The complainant also gave an account in court for the first time that the applicant’s finger remained in her vagina as he forced her to roll over. She had never said that before. The nurse’s note was that, “‘He then put his finger into my vagina.’ She told him, 'No. Stop.' He did stop. 'He asked me to roll over and he started massage [sic] me’”. The complainant had not mentioned to police that the digital penetration occurred both when she was on her stomach and also when she was on her back.

In her examination in chief, the complainant gave evidence that the applicant tried putting his finger in her “private part” whilst she was lying on her stomach and that he was being very rough and she couldn’t move away. She said that she grabbed hold of his hand and told him that she did not “want anything”. He then rolled her over onto her back. The complainant said that, “He still had his finger inside and he was being real rough.” She was asked “How did it feel to you when that happened?” She responded that, “He felt that I wanted it”. She was then asked:

In cross-examination, the complainant stated that the applicant was massaging one side of her groin when she was on her stomach. She stated that, “He then started going to my walls in – in my vagina and then he stuck his finger in.” She agreed that his finger remained in her vagina while he rolled her over. When asked how it was that he rolled her over while his finger was still in her vagina, the complainant said, “Because he moved off the bed and he still kept his hand inside”. She gave evidence that he used his other hand to roll her over on the bed. She said that he left one leg on the bed and one leg on the floor, but did not remember on which side of the bed. She agreed that she was quite certain that the finger remained in her vagina the whole time that the applicant was turning her over.

The complainant said that she did not remember how long the massage lasted. She stated that it was a “moderately long massage”. She agreed that that meant more than 15 minutes, but was not able to say whether it was more than 20 minutes. She agreed that the “second part” (that is, after the digital penetration had occurred) was shorter than the first part, or about 10 minutes. In re-examination, the complainant said that the applicant started stimulating her breasts and trying to penetrate her with his penis about 10 minutes after rolling her onto her back. She stated that he was still “fingering” her in the meantime. On her account, after the unwanted act of digital penetration (or during; her evidence as to timing is unclear), she remained on the bed and continued to receive the massage from the applicant.

It was submitted by defence counsel at the trial that the description by the complainant of the applicant straddling her to massage her, then getting off the bed and forcing her somehow to turn over whilst at all times having his finger inside her vagina, was implausible. The trial judge did not agree. Her finding regarding the evidence on this issue was that:

We have paid close regard to the complainant’s evidence of how it is that the applicant is said to have been able to manoeuvre himself in the way described by her. The applicant, who was born in 1960, was 52 years old at the time of the massage. There was evidence from the applicant that he suffered from sore knees. We have had regard to the fact that the complainant provided this version of events for the first time in court. In our assessment, the account given by the complainant on this issue lacks cogency. It is a further matter that has contributed to the doubt the court experiences as to the applicant’s guilt.

The complainant’s evidence in chief was that, after the alleged offences, she pushed the applicant off her and he got “cranky” and left. She stated that she then went to pick up her daughter. She could not say when he left. On re-examination, her evidence was that she did not recall the applicant staying in the house after the massage. Despite this, she also agreed in cross-examination that she remembered kissing the applicant as she left to go and get her daughter from her sister’s place. She later changed her evidence and stated that she did not “remember that far back” when asked whether she remembered kissing the applicant goodbye. Although initially agreeing that she kissed him goodbye, she repeated that she did not remember getting kissed goodbye or kissing the applicant.

The complainant’s neighbour, Matthew McGovern, gave evidence that he was unloading some firewood at about 4pm or 5pm on 28 April 2013. As he was unloading the firewood, he saw the applicant at the complainant’s place. He gave evidence that he “sang out” for the applicant to give him a hand. The applicant started walking down, but turned around when the complainant called out to him. Mr McGovern said that the applicant went back, gave the complainant a kiss and then helped him to unload the firewood. When asked whether he saw them “having a kiss”, he replied “yes”.

The complainant stated that she did not recall her neighbour, “Matt” (Matthew McGovern) arriving home that day.

In his ERISP, the applicant told police that, once the complainant was ready to pick up her eldest daughter, they went outside, he kissed her goodbye and then the complainant, who was about to get in the car, came back around the car and kissed him goodbye and that the neighbour, Matt Keogh, saw that. In his evidence, the applicant said that the complainant opened the car door and then quickly closed it, ran around and gave him a kiss goodbye before walking back around and driving away.

The fact that the complainant gave inconsistent accounts of what happened after the alleged sexual assaults is a matter that is relevant to her credit. The farewell kiss in particular is consistent with the applicant’s version of the relationship being of an ongoing nature.

In her reasons, the trial judge dealt with the kiss by stating:

Her Honour appeared to disregard the inconsistent accounts in relation to the kiss because its existence was explainable by reference to the continuing and ongoing relationship between the applicant and the complainant. This reasoning is difficult to understand, given that later in her Honour’s reasons she appeared to reject the suggestion of any ongoing relationship, stating that she placed “little weight on the relationship evidence from post June 2013, it confirms that a friendly and companionable relationship existed between the complainant and the accused…”. Nevertheless, we are satisfied that this evidence did in fact impact adversely on the complainant’s credit. It has contributed to the doubt experienced by this Court.

When the police arrived at the complainant’s home on the night of the alleged assaults, the applicant was present at the home, as was Blaise. The complainant did not tell police this.

Her first explanation in her evidence in chief for not telling police that the applicant was in her home was that “…they didn’t ask me”. She gave that answer twice again in cross-examination. The second exchange was as follows:

It is to be noted that the evidence of Detective Scicluna was that, when she first arrived at the complainant’s home at 10:30pm that night (and the applicant was in the laundry) she saw Blaise at the house and was “a bit confused” at first. She stated, “I was, like, well, is this the accused person?” She went on to state, “I was told he wasn’t the accused person; he was someone else”. She agreed she was not told anything else about where the applicant was at that time. In this context, the complainant’s evidence that she was not asked about whether the applicant was present is not strictly correct, or at least gives an incomplete picture of events, as the subject of whether Blaise was the suspect was raised.

The complainant had every opportunity to tell police that the applicant was present at her home when police asked about Blaise, but she did not do so. There was no evidence that she held any fears about the applicant at that time. On the contrary, in response to a question in cross-examination as to whether she said anything to the applicant about not wanting him there that night, given that she had just reported him to the police, she said, “He was a friend then, and I did not report it – it was [RT] that reported it” (the reference to [RT] is explained below). When she was asked by the Crown Prosecutor in re-examination as to whether she could tell him not to come to her house, she replied, “No I couldn’t tell him that...because I had no one, I needed support, I needed friends”. She said that she did not recall whether she had invited the applicant to come to the house.

In re-examination, the following exchange occurred between the Crown Prosecutor and the complainant:

Counsel for the applicant objected to the questioning on the basis that the reason for not disclosing to police that the applicant was present did not arise from cross-examination. Her Honour overruled the objection, permitted the questions and then went on in her reasons to accept the explanation given by the complainant in re-examination as follows:

The complainant had been consistently unable to explain why she had not alerted police to the applicant’s presence that night. She had not given any evidence that she was scared of the applicant at that time. Her explanation to police the following day, in her evidence in chief and in her cross examination was simply that she was not asked. The Crown Prosecutor required leave to ask questions about how the complainant was feeling at that time as they did not arise out of cross-examination and the complainant had given evidence about the general issue in her evidence in chief that had remained unchanged in cross-examination: s 39 of the Evidence Act 1995 (NSW).

The explanation given in re-examination was inadmissible without a grant of leave to the Crown Prosecutor. In any event, it was inconsistent both with previous explanations that the complainant had given and with other evidence that she had given. We have taken the unsatisfactory nature of this explanation into account as contributing to the doubt we experience about the applicant’s guilt.

The complainant was cross-examined regarding the presence of the applicant at her home when the police arrived at 10:30pm. It is to be noted that police arrived because the complainant’s ex-husband had called them prior to any complaint of any sexual assault. That evidence is discussed further below. At no time did the complainant contact police. When she was asked by police in one of her interviews why the applicant was present at that time, she replied, “He was suppose [sic] to be helping put the antenna on my roof”. When this part of her police interview was put to her by counsel for the applicant the complainant stated, “I have a disability, I was a vulnerable person back then. I was – he was a friend”. Counsel repeated, “You told the police that he was there to help you put the antenna on your roof, didn’t you?” The complainant responded, “I don’t remember what I said but when you have friends and you are a single person, single mother, you ask for support and help when you don’t have it. Yes, I do have a disability, yes – ”.

The trial judge interceded to ask, “You are only being asked if it was true that Ken was in your house that night so he could put up the antenna, true or not true?” The complainant responded, “He was at my place, I don’t recall – he was there for some reason but I don’t recall what for.” Counsel and the complainant then had the following exchange:

The trial judge had regard to this explanation and described it in her reasons as “bizarre.” Despite this, her Honour made no finding that it adversely affected the complainant’s credit in any way. Rather, her Honour dealt with this “bizarre” evidence by simply noting that she did not have access to the electronic recording of the complainant’s interview with police, where this explanation was first provided by the complainant, and thus that it was “difficult to assess this evidence or to determine whether it should reflect or to what degree impact upon the credibility of the complainant”.

The trial judge did not have the electronic recording of the complainant’s interview because it was not tendered in evidence. What her Honour did have before her was the complainant’s cross-examination about this topic. She thus did have the opportunity to assess the complainant’s credibility. Her Honour again made no adverse finding in this regard. It cannot be a justification for failing to consider the applicant’s credibility or reliability on this issue that she did not have the electronic record of the interview when she had the transcript and had heard the complainant being cross-examined on this topic.

In none of her initial complaints to police, the nurse, or in her recorded statement on 29 April 2013 did the complainant make any mention of the fact that, during the massage, her neighbour and friend Sharon White came to visit her to see whether she was feeling all right. The police first learned that the massage had been interrupted by Ms White’s visiting the premises when the applicant told them during his ERISP on 29 April 2013. The complainant’s interview had already been electronically recorded that day and she had not mentioned it to police at that time. The applicant told police that, at the stage when he was massaging the complainant’s calves and her tracksuit pants were off, he heard the children at the front door and looked out and saw that Ms White was there. He told the complainant that she should go and see what Ms White wanted. The applicant stated that the complainant put on a “terry towelling house coat” and walked out and spoke to Sharon. She then returned, took her robe off and continued with the massage.

The complainant was subsequently interviewed again on 4 June 2013 and agreed that she had spoken to Ms White during the massage.

The complainant gave evidence that Ms White came to the house while the massage was taking place. She said that, “She [Ms White] came and knocked on the door and Ken told me that she was there and I told him to let her know that I wasn’t feeling well.” Ms White came to the door “while I [the complainant] was on my stomach” and “before” the act of digital penetration”. In cross-examination, she agreed that nobody answered the door to Ms White when she came to the door the first time. She came back “a bit less than half an hour” later. The children were speaking to her. She did not remember the applicant saying to her at that point, “You had better check what’s going on because she might want you for something”.

The complainant said that she did not remember going to the door to talk to Ms White. She did not know whether she was wearing a terry towelling dressing grown when she answered the door. She did not remember telling police that, “Ken [the applicant] answered the door once and I went out to her, yes, I put my clothes back on”. She later stated that she remembered talking to Ms White, but did not remember what she said to her and did not remember “when exactly”.

Ms White’s evidence was that she knew there had been a small “party” at the complainant’s home the night before because she had been invited and declined and also, being a neighbour, she had heard the noise they made that night. She said the complainant’s house had been very quiet that morning, so she had gone over to get a cigarette and check on the children because she was worried about them. The house was quiet and she thought that the complainant was asleep. The children came up to the window and were calling out to her. She returned to the house about half an hour later because of concern for the children. The complainant came out. Ms White could not recall what she was wearing. She said that the complainant looked “a bit seedy”. She gave evidence that the complainant said to her, “I’ve got a headache… I’m going to go lay down”. Ms White described the complainant as “chatty”.

The complainant, the applicant and Ms White gave similar accounts about this visit, but only the applicant was able to recall what the complainant was wearing. The complainant could not recall telling police that she had put her clothes back on. The applicant gave a description of what the complainant was wearing to police and gave the same evidence at trial. He was not challenged on it in cross-examination.

If the complainant was wearing a robe, rather than the clothes that she had been wearing before the massage, that is consistent with all of her clothes being removed by the time of Ms White’s visit. This means that, on the complainant’s own account, the act of digital penetration must have occurred already as the complainant gave evidence that she protested and struggled when the applicant pulled her pants off and the first sexual act occurred after that. This was not suggested to the complainant in cross-examination, but is another anomaly in the evidence that remains unexplained.

As to what she was wearing before the massage, the complainant told Senior Constable Scicluna when she attended her home at 10:30pm that night that she was wearing pink pants and a top. In her evidence, she stated that she wore blue tracksuit pants and a top. Nothing of any significance turns on this inconsistency.

Her Honour dealt with the evidence about Ms White speaking to the complainant during the massage by stating that the failure to refer to Ms White did not reflect badly on the complainant’s credibility. Her Honour accounted for this by stating that, “It may be more indicative of a poor memory, as claimed by the complainant.” Again, her Honour made no adverse finding of this further example of the fallibility of the complainant’s memory. Her Honour excused the complainant’s failure to recall Ms White’s presence when she spoke to police on the day of the alleged assault and again on the following day on the basis that at that time she had a poor memory of the event. Again, her Honour gave no consideration as to how this might affect her reliability as a witness.

The witness Ms White was an important witness. She was a neighbour of the complainant and friends with both the complainant and the applicant. She used to look after the complainant’s children and the complainant gave evidence that Ms White was going to be the godmother of one of her children. When the applicant was arrested, he sent Ms White a letter from custody that was tendered in the trial. Ms White gave this letter to police when she made her police statement in late May 2013. In it, the applicant denied the allegations and spoke fondly of the complainant.

When she gave her evidence, Ms White recounted some conversations that she had had with the complainant in the period after the alleged assaults. She stated that on the following day:

Ms White gave evidence that the complainant raised it again about a week later. Ms White’s evidence was that the complainant said, “I’m not sure if anything happened.” A couple of months later, the complainant said, “I’m not sure if I’ve done the right thing … I want to take it all back”. Ms White gave this evidence in cross-examination.

During re-examination by the Crown Prosecutor, Ms White stated that the complainant had said the following:

The Crown was then granted leave under s 38 of the Evidence Act to ask leading questions of Ms White in re-examination. Ms White told the Crown Prosecutor that she mentioned the complainant’s uncertainty to Detective Senior Constable Ball in a conversation after she had given her statement. She said she had told Detective Senior Constable Ball that, “She’s not sure, anyway, anymore”, about the complainant. Detective Senior Constable Ball gave evidence denying that Ms White ever told him about any conversations with the complainant in which she expressed doubt about the events on 29 April. He also denied that he and Ms White had spoken about “any court stuff” whilst at court .He could not remember Ms White making general comments about her views after she had made her statement but agreed that, once the statement was finished, she was “fairly chatty”. The officer agreed that he was speaking to the witnesses outside court and chatted to Ms White outside court for some time.

Her Honour made the following finding in this regard:

Although her Honour rejected Ms White’s evidence on this issue, she accepted her evidence extracted above at [84] as being evidence of complaint. The trial judge did not provide any explanation as to why she separated out the part of Ms White’s evidence that could be considered evidence of complaint from the evidence in which she described the complainant’s expressions of doubt as to whether the offence had in fact occurred. Although it was certainly open to her Honour to find that Ms White had not said anything to police regarding the complainant’s misgivings, that does not mean that Ms White’s evidence as to what the complainant had told her necessarily had to be rejected as well.

Even making due allowance for the advantage of the trial judge in seeing and hearing this evidence, it is difficult to understand why the evidence of Ms White regarding her conversations with the complainant should be rejected. Ms White had no motive to lie and was a friend of the complainant.

The complainant gave evidence that, although the relationship with the applicant finished in April 2013, not long before the alleged assaults occurred, they remained close and continued to have sexual intercourse, although not every day. After the relationship ended and the applicant left the house she continued to send him text messages telling him she loved him, that she was going to bed soon, and asking him when he could come to her house. The applicant told police in his ERISP that he and the complainant were “still friends and see each other.” At trial, he described their relationship at the time of the alleged offences as being “everything that a relationship is supposed to be.” He also gave evidence that the sexual part of their relationship continued and they had sex “nearly every day”.

The trial judge made the following finding about the applicant’s evidence on this issue:

In making this finding, her Honour relied in part upon the evidence of the applicant’s daughter Nicole Bell that the applicant had told her that the relationship had broken up possibly a month before his arrest. Her Honour did not refer to the other evidence of Ms Bell that, even though she knew the relationship ended about a month or more before he was arrested for these offences, it did not appear to her to have changed. Ms Bell would see them together, they would walk past her house holding hands and the applicant continued to visit the complainant regularly and would still spend most nights of the week at the complainant’s place. She said that, “to the unforeseen eye it would have still seemed like they were in a relationship because he was still spending time there, mowing her grass, doing things for her”.

Not only did her Honour fail to have regard to all of Ms Bell’s evidence on this subject, she also failed to refer to the evidence of Ms White that, right up to the day of the alleged offences, she would see the applicant stay at the complainant’s place a lot. He was there “all the time”. She would see him do things like sweep the floor, do the dishes and make coffee. Ms White also gave evidence that the applicant told her that he loved the complainant and that the complainant told her that she was in love with him too. She also gave evidence that the applicant was going to ask the complainant to marry him (Her Honour made a reference to this as extracted below at [96]).

There was uncontested evidence before the court that after the applicant was released on bail for these offences he resided with the complainant. The complainant agreed that, following his release from custody, she and the applicant continued to see each other. She would drive him to the police station to comply with his bail reporting obligations and he would come and help her around the house. He gave her money to play on the poker machines and she won enough money for them to buy a car together.

As stated below at [169]-[174], counsel at trial was prevented from cross-examining the complainant about this “close relationship” after he was released from custody because the trial judge was of the view that it contravened s 293 of the Criminal Procedure Act. The close relationship between the applicant and the complainant after he was released from custody was relevant to the complainant’s credibility and as to whether the relationship was ongoing. The trial judge repeatedly prevented defence counsel at trial from exploring this issue and then made this finding in her reasons:

It is illustrative of the manner in which her Honour approached her consideration of the evidence in this matter to have regard to this passage of the reasons. When considering whether any adverse credit finding could be made against the complainant for resuming a close friendship with the applicant after this alleged sexual assault, her Honour minimised the seriousness of the allegations. Her Honour appears to express a view that there was nothing of significance about the fact that the complainant chose to continue her close friendship with the applicant because the allegation was so minor. On the other hand, when referring to the significance of the ongoing close relationship to the defence case, the allegation is described as “heinous” conduct.

Her Honour then went on in her reasons to note the lack of any evidence of the extent of the applicant’s brain damage in rejecting a submission from trial counsel that it was because of that brain damage that it was not possible to “get through to [the applicant]” that he could not see the complainant. Her Honour noted the “apparent distress” exhibited by the applicant when he gave evidence at the trial of how he loved the complainant, but did not find that the relationship evidence post-June 2013 was “of any real assistance”. The issue of her Honour’s treatment of the applicant’s brain injury is discussed further below at [150]-[159].

There was no evidence before her Honour that would permit a finding that, when the applicant went back to live with the complainant after he was released from custody, he was an “intelligent” man who would not have done so if the allegations made against him were false. Although it is to be accepted that, by the time of the trial nearly three years later, he was able to give evidence, the procedural history before her Honour was that he had been found unfit to stand trial during that time after receiving a significant brain injury. This is discussed further below.

We are not satisfied that any adverse inference should be drawn from the fact that the applicant returned to reside with the complainant when he was released from custody.

The applicant gave evidence at trial for the first time that there had been a consensual act of cunnilingus initiated by the complainant during the massage. There was contemporaneous support for this having occurred because the nurse at Westmead Hospital that night made a note that the complainant told her “he then started licking my private part.” The complainant did not tell police about this act and she was not asked about it in her evidence in chief. After the applicant gave evidence of it at trial, the complainant was briefly re-called to give evidence about this aspect. She stated a number of times that she could not remember what she told the nurse. She repeated her evidence that the applicant had kissed her breasts, but denied any licking of her vagina. She stated that when she used the expression “private part” she meant her breasts.

The complainant was not at that stage cross-examined about the fact that, when she gave her evidence in chief, she described her vagina as her “private part”, rather than her breasts. When she described the act of alleged digital penetration (count 2) in her evidence in chief, she stated he “tried putting his finger in my private part”. She was asked by the Crown Prosecutor what part of the body she was referring to when she said “private part”. She responded “my vagina”. At no stage of her evidence until she was recalled did the complainant ever refer to her breasts as being her “private part”.

Further, the trial judge was informed from the bar table that in a conference with a solicitor from the Office of the Director of Public Prosecutions in July 2013 the complainant said she could not remember whether the applicant “licked her private parts but he may have tried”. Despite this, she could remember that he kissed her breasts. The complainant clearly recalled that the applicant kissed her breasts, but was not able to remember whether he licked her “private part” (as she had told the nurse) in this conference, which occurred close to the alleged offences.

Despite the evidence that the complainant was clearly able to distinguish between her “private part” and her breasts and had referred to her vagina as her “private part” in her evidence in chief, and also despite the fact that there was evidence that the complainant could not remember what she said to the nurse in any event, the trial judge accepted the complainant’s explanation that when she said “private part” to the nurse she meant breasts. Her Honour’s reasons for so finding were as follows:

Having found that the complainant meant “breasts” when she used the expression “private part” to the nurse, her Honour then went on to make a finding adverse to the applicant’s credit that he raised the cunnilingus for the first time at trial. Her Honour simply stated of this evidence:

The weight of the evidence was that the complainant was referring to her vagina when she referred to her “private part”. It is difficult to see how the applicant’s evidence on that issue could fairly be the basis for an adverse credit finding against him. It is consistent with what the complainant first told the nurse, even if the complainant could not recall that when she gave evidence at the trial.

A motive to fabricate the allegations was squarely raised by the applicant and was rejected by the trial judge. The motive was that the complainant was worried that if her ex-husband RT knew that she was still seeing the applicant and having him stay at her house her children would be taken from her by “DoCS” (now the Department of Family and Community Services). Evidence going to this subject is as follows.

The complainant agreed in her evidence that RT was angry that she was with the applicant. She also agreed that he used to say that if she did not break up with Ken he would arrange to have the children taken off her. The complainant also agreed that RT found out about her living with the applicant and that she was scared of losing her children because of living with the applicant. The complainant agreed that the DoCS became involved because of things that RT was saying to them.

The evidence of the neighbour Ms White was also that the complainant was frightened of RT. She stated that when RT was living with the complainant the police were called nearly every day for domestic violence incidents. Ms White also gave evidence that RT told the complainant that she had to take “the action”. Ms White gave evidence that she heard RT arguing with her about this as follows:

RT gave evidence at trial and denied this. His evidence was that he had not heard from the complainant for a while until a few days before the alleged sexual assaults. He said the complainant wanted to move on with her life and did not want him around anymore. He said that they had started talking again just prior to the alleged offences. He denied ever threatening to report the complainant to DoCS and denied the complainant was scared of him.

There was evidence from the complainant that RT had in fact already complained to DoCS because he was not happy about “…the friends that I was making”. The complainant continued, “…but he couldn’t stop me from having the friends that I did.” She agreed that he tried to stop her by making allegations to DoCS.

A significant aspect of RT’s evidence is that he and the complainant were sending text messages to each other leading up to and after the alleged offences. A record of the text messages to and from RT’s phone in the days before the incident was tendered at trial. They are significant and cast doubt on the complainant’s credibility. They should be read in the context of the complainant’s evidence referred to above at [108]. They show the following.

At 4:03am on 27 April 2013, the complainant sent RT a text stating, “R u awake he called me twice and has woken me up because he wonted 2 come up I said no.” No questions were asked about this text at trial. It is not clear to whom the complainant is referring. The complainant then telephoned RT at 9:26am on 27 April 2013 and the call went to voicemail. She called again at 4:24pm that day and the call again went to voicemail. The next contact is at 11:02pm that night (at which time the applicant and Blaise were at the complainant’s house drinking) when the complainant sent RT a text that read, “He is here and called u gay wont tell me much.” No questions were asked of the complainant about this text either. This text was followed quickly by a text from RT one minute later stating, “Why u let him in r u ok”. The complainant sent a text message back at 11:03:36pm, “he made his way in”. The complainant was not asked about this text at trial either. The unchallenged evidence is that she was at her home with the applicant and Blaise at that time. Both men were invited guests. If she is referring to the applicant, an inference is available that she was lying to her ex-husband about how and why the applicant was a guest in her home.

RT sent a text message at 11:04:27pm, “If u don’t want him there tell him to leave.” The complainant then sent a text message back at 11:12:12pm, “Please call me.” There is no response and RT does not call her. At 3.10am, the complainant sent a text message to RT, “I need him out he came back up and i left the door open And he came in he has been angry 2wards me.” There is no response to this text. The complainant was asked questions about it at the trial. Her evidence was that she does not recall sending any text messages. She remembers the applicant stripping her bed and helping her to bed after vomiting but she does not remember anything else.

The next text message was from RT to the complainant at 11.20am, which reads, “Is everything ok sorry didnt get ur msg was sleepin u should of rang me.”

At 11.41am, the complainant sent RT a text, “Please call the police cause he is here and dont want him.” There was conflicting evidence as to when this text was sent vis à vis the alleged offences. The trial judge found that the 11.41am text sent by the complainant to her ex-husband was sent before the alleged sexual assault. We are satisfied that this is consistent with the weight of the evidence.

The complainant agreed that she had not had a massage at the time she texted RT at 11:41 am and that she had been talking to RT previously and arranging for him to come and see the kids.

The state of the evidence leading up to the alleged assaults is that the complainant was sending text messages to her ex-husband to the effect that she did not want the applicant there, but no evidence was called that this was in fact the case. One possible explanation for this is that the complainant was attempting to protect herself in case her ex-husband came around to visit his children at her home and found the applicant there. This was not put to the complainant in cross-examination.

RT sent a text message back to the complainant at 11.42.13am, “U want me to call them do u know the number.” At 11.56.05am, the complainant texted back, “96788999 when I woke up he was here.” RT responded at 11.56.52am, “How the fuck he get in do u still want me to call them.” RT received no reply. At 12.15.16pm he sent another text to the complainant, “Do u still need me to call them pls tell.” There was no reply from the complainant until 12.51.58pm.

The evidence is that the massage and the alleged offences occurred sometime between the text message at 11.56am and the text message at 12.51pm.

At 12.51.58pm, the complainant texted RT to state, “It’s ok but he did try 2 do some thing and I was telling him no stop a few times I don’t feel safe with him and he scares me big time” At 12.53.11pm, RT sent her a text, “Well I tried ringin u, couldent get u so I called them sorry thought that’s what u wanted.” The complainant replied at 12.54.44pm, “Yes thank he could b going soon though.”

These texts show that RT called police before any allegation of sexual assault. The first evidence of “complaint” is the complainant sending a text to her ex-husband at 12.51pm saying “It’s ok” and then describing the applicant “trying to do something” and her telling him to stop “a few times” without any context as to how that occurred. Without context, such an allegation could be consistent with both a sexual assault and an advance that was rebuffed falling short of criminal conduct. The complainant then states in her text, “I don’t feel safe with him and he scares me big time.” Again, this text is completely inconsistent with the evidence of her conduct from then onwards.

The evidence is that, after the massage, the applicant stayed at the house for some hours, until the complainant went to collect her oldest daughter from her sister’s place at which time they both left. They kissed goodbye and then the applicant was allowed back into her home that night (apparently to fix her antenna). Police did not arrive at her premises in response to the call from RT until 10.30pm, although they spoke to the complainant earlier on her mobile telephone as she was driving back from her sister’s place.

On the applicant’s own evidence, he attempted to have sexual intercourse with the complainant after a lengthy massage but was rebuffed and had become disinterested in any event. The motive for the complainant to claim that the applicant had sexually assaulted her was that her ex-husband had threatened that he would have her children taken away if she stayed with the applicant. As the above evidence shows, she was sending texts to her ex-husband expressing concern that the applicant was at her home whilst also agreeing shortly thereafter for her to massage her. Her behaviour in agreeing to a full-body massage is at odds with the text messages that she was sending to her ex-husband at that time.

As for the complainant’s credibility, her Honour simply stated that, “I do not make any finding as to the credibility of the complainant as a result of sending the 11.41am text”. This was the text in which the complainant asked her ex-husband to call police because of the applicant’s presence just prior to the massage.

As for the alleged motive to lie her Honour stated:

Her Honour did not state why this was so. As we have pointed out, there was direct evidence that RT had threatened to have the complainant’s children removed if she did not break-up with the applicant. As we have also pointed out, text messages sent by the complainant to RT prior to the massage were false, insofar as they recounted circumstances the applicant came to be at her home. It seems to us, in the circumstances, that the claimant had a motive to lie to RT. It is not necessary to make a specific finding that that motive prompted her to lie about the sexual assault, although that conclusion would have been open on the evidence. It is enough to say that the text messages themselves cast further doubt on the complainant’s credibility and reliability. She went on to add:

Her Honour apparently overlooked that defence counsel expressly disavowed reliance upon joint collusion.

The applicant recounted what had occurred when police attended the complainant’s home on the night of 28 April 2013 in his ERISP as follows:

At trial he gave the following version:

There was also evidence at trial that the applicant had attempted to contact the complainant later that night. The applicant gave evidence that he messaged her because he “…wanted to know what was going on.” He stated that he remembered messaging the complainant, but couldn’t remember what he said to her. He said that he rang the police station “about five times” to try to find out what was going on.

The trial judge made the following finding in relation to this evidence:

It is to be noted that the complainant was at the hospital during the “early hours of the morning”. It is possible that the text messages at 12.43am, 1.03am and 1.45am were sent during that time. All text messages sent by the applicant contain a request for the complainant to contact him. We do not find that the applicant’s repeated attempts to learn what the allegation against him was are “difficult to understand”. They are consistent with his evidence about wanting to know what was happening.

The state of the complaint evidence at trial warrants some brief comment. The first complaint was to the complainant’s ex-husband in the terms described above at [121]. He had called police before any alleged assault because the applicant was in breach of a bail condition not to be at the premises. The second complaint was to police when they attended her home at 10.30pm in response to RT’s call. The third complaint was to the nurse. The fourth and final evidence accepted by her Honour as being evidence of complaint was what the complainant told Ms White the following day. Her Honour directed herself as follows in relation to this complaint evidence:

Her Honour made a finding that the complainant had acted in a way that would be expected of someone who had been sexually assaulted. Her Honour found that the complaint evidence of the four witnesses aided the credibility of the complainant in circumstances where the complainant did not contact police, where she remained in the company of the applicant for most of that day, that they kissed each other goodbye when they parted company, that he was welcome to return to her home that evening (with Blaise) and that she did not disclose to police that he was at her premises when they attended that night.

We have dealt with the evidence of the complaints to the complainant’s ex-husband, to Ms White and to the nurse, above. The circumstances surrounding those complaints diminishes the force which they may otherwise have had. The complaint to the police resulted from RT’s call and in those circumstances, suffers from a similar difficulty.

Audio recordings of parts of four gaol calls became an exhibit in the trial. The recordings were admitted pursuant to s 81(1) of the Evidence Act, over objection, on the basis that utterances made by the applicant were capable of amounting to admissions. The first call was between the applicant and his mother on 23 May 2013. The evidence of Nicole Bell was that the applicant’s mother was an elderly lady who was “80 – possibly 83, maybe older”. The relevant portion of the call transcript is as follows [emphasis added]:

The second call was between the applicant and his daughter Nicole Bell on 25 May 2013. The transcript of that call is as follows [emphasis added]:

The third call was between the applicant and his ex-partner on 25 May 2013. The transcript is as follows [emphasis added]:

The fourth gaol call is between the applicant and his niece on 4 June 2013. The transcript is as follows [emphasis added]:

In his evidence in chief, the applicant stated that he would not have spoken to his mother or daughter about sexual matters. He said that he had told his mother about the allegations. After the playing of the recording of the first call, he said that, “I wasn’t discussing sexual behaviour. I was discussing the allegation.” As for the second call, he said again that he was referring to “the allegations”. When asked why he used the phrase “like not stopping at a stop sign”, he said, “Because I had a sort of period of time to get out what I was saying – just – you talk as fast as you can and use as less words as you can”. When asked why he had sent the facts sheet to his daughter, he responded, “Because – so they fully understood the allegations without me having to talk about it over the phone in front of the other inmates”.

Of the third gaol call, the applicant said, “The whole conversation was based around what she said”. He said that he was not agreeing that he had “fingered” the complainant, but rather that, “The whole conversation was based around what she said.” It was significant that he stated that he “…wanted people to know what I was going to court for.” In relation to the fourth call, which was with his niece, the applicant again said that he was speaking about the allegation, rather than about his “sexual behaviour in the bedroom”. In cross-examination, the applicant maintained that he was speaking about the allegation.

The trial judge did not accept the applicant was merely detailing the allegations against him in the first gaol call. Her finding in relation to this call was as follows:

The trial judge found that the words, “And fucking when I told mum about what happened she laughed,” in the second gaol call were consistent with the applicant’s having told his mother, in the first call, about what had actually happened. Despite this, her Honour did not find that the description of the offence as “not stopping at a stop sign” constituted an admission in the second call.

As for the third gaol call, her Honour stated:

Her Honour found that the fourth call also contained admissions. She rejected the applicant’s contention that he was simply detailing the allegations made against him.

Each of the members of this Court has listened to these four recordings. In relation to the first, second and fourth calls we are satisfied that the applicant was clearly describing what he had been charged with, rather than making any admissions of guilt. The third call is less clear. The passage in the third call italicised above is capable of being taken as an admission that there was an act of digital penetration (but not necessarily a non-consensual act). The applicant tells his ex-partner that “what she said is” that “she” allowed him to give her a nude massage and then “she said ‘Oh put a finger in,’ and … I didn’t stop”. We are satisfied that at this point he is recounting what the complainant has told police. The next exchange is less clear. In context, the question asked of the applicant as to whether he was “fingering her” could be referable to either the allegation or the actual event, thus the response from the applicant, “Yeah,” could also be referable to either the allegation or the event.

The next portion of that call includes a repeat of the shorthand way of describing the charge as “not stopping at a stop sign” that the applicant used in the previous calls.

We are unable to be satisfied that the third call is evidence of an admission of sexual intercourse without consent. In so finding, we have relied upon the following matters: we are already satisfied that in all of the other calls the applicant is discussing the charges rather than the events; the second and third calls were made on the same day and deal with the same subject matter; and the applicant used the same expression of “not stopping at a stop sign” to explain the charges in the other call that he made that day. In addition, we have had regard to the cogency of the explanation given by the applicant summarised above.

On occasions during her evidence when the complainant was unable to explain an inconsistency in her evidence, she stated she was a “vulnerable person” because she had a learning difficulty and had been through trauma. There was no evidence before her Honour about any trauma the complainant suffered, whether such trauma was physical or psychological, or why that would affect her memory.

With respect to the complainant’s inability to recall certain events and conversations (including the act of digital penetration itself), her Honour stated:

Her Honour also referred to the following evidence given by the complainant in re-examination about her intellectual disability:

Counsel for the applicant objected to the complainant’s answer as self-serving and submitted that it did not arise out of her cross-examination. The trial judge did not rule on the admissibility of that evidence. There was no other evidence before her Honour as to the meaning of “IM class”, nor any evidence about the extent of the complainant’s intellectual disability or the effect that it might have on her capacity to give evidence and recollect events. The trial judge then relied upon the evidence given by the complainant in her reasons.

Her Honour appears to have relied upon this evidence to make allowances for the complainant’s inability to remember certain details. Her Honour did not treat the applicant’s disability in the same way.

As stated above, there was evidence that the applicant had received a significant brain injury a few weeks after the alleged offences. In fact, the reason that the trial was by judge alone, rather than by jury, was because of the applicant’s significant brain injury and the problems that it would cause. The Crown consented to the trial being by judge alone. The evidence as to the effect of the applicant’s brain injury came from the applicant and his daughter. It was not disputed by the Crown. On at least two occasions, defence counsel indicated to the trial judge that she had expert evidence that she could tender about this, but her Honour did not indicate that she required that evidence. That is not surprising in circumstances where the Crown did not dispute the evidence of the applicant and his daughter.

At [96] we have set out her Honour’s finding that in the period after the applicant was released from custody with a significant injury, and moved back in with the complainant, he was an intelligent man whose behaviour was at odds with a person who had been wrongly accused of a “heinous” offence. In making that finding her Honour stated that:

Towards the end of her reasons, her Honour stated that:

Her Honour also found that there was no evidence to support the submission of counsel for the applicant that the evidence of the applicant was rendered more reliable by reason of his brain injury.

There seems to be little justification for the disparate treatment of the cognitive difficulties of the complainant and the applicant. The trial judge relied on the absence of expert evidence as to the extent of what was an admitted brain injury in the case of the applicant. This is hardly reasonable in circumstances when the prosecution did not require it to be formally proved. More importantly, the case to a large extent was based on the complainant’s credibility or reliability. Whilst she may have had some learning difficulties which impacted on her evidence, the matters which we have outlined above make it difficult to accept her evidence beyond reasonable doubt on the critical questions in the trial. In particular it is difficult to accept her evidence as to whether any sexual intercourse occurred (a necessary element for Counts 1 and 2), whether such intercourse that did occur was with consent and whether the applicant believed the complainant was not consenting, was reckless as to whether such consent had been given or otherwise.

As already noted, no specific error in the conduct of the trial is alleged on behalf of the applicant. However, in undertaking the essential task of making an independent assessment of the evidence, based as it must be on a review of the whole of the record of the trial, this Court must inevitably have regard to the course of the trial. An independent assessment of the evidence cannot sensibly be divorced from a consideration of the way in which questioning proceeded, or was prevented from proceeding, or what might otherwise be termed the dynamics of the trial. A combination of features of the course of the applicant’s trial has reinforced our conclusion that the verdict was unreasonable having regard to the evidence.

First, the stated basis for the consent application for a trial by judge alone was that the applicant had been “very savagely beaten and suffered extensive brain damage”, that he had initially been assessed as being unfit for trial, that his condition had improved but that he was still “severely compromised in terms of his memory” and that he had “substantial difficulties in absorbing and digesting what is being said” such that additional time and effort was required to obtain instructions. None of that was disputed by the Crown. However when, at the very outset of the trial, counsel for the applicant flagged the need to have some time with the applicant after the complainant had finished her evidence-in-chief, she was personally criticised by the judge for not taking a proof of evidence from her client as part of her preparation of the matter. That was notwithstanding counsel noting that the complainant had participated in two recorded interviews, that there were substantial differences between those accounts (which there are) and that the Crown had informed her that there was going to be some difference between what had been said in the past and what would be said in chief in the trial. It cannot be determined whether the judge’s remarks in fact had any impact on the course of the trial but they were calculated to discourage counsel from asking for time to obtain proper instructions from a significantly impaired client.

Next, after the Crown opening, counsel for the applicant sought to open her case, as allowed under s 159 of the Criminal Procedure Act. The right of an accused person under that section is limited to an address on “the matters disclosed in the prosecutor’s opening address, including those that are in dispute and those that are not in dispute” and “the matters to be raised by the accused person”. During an unexceptionable attempt to do just that, giving an account of the applicant’s case in response to the complainant’s account as given to police in her two interviews, counsel was interrupted by the judge, who reminded her of the constraint imposed by the section and commented that she seemed to be giving “some sort of factual thing”. A factual account of the matters in dispute was within the scope of the section.

On two occasions, the judge stopped the barristers from providing important information to the court as to what was or was not within the brief of evidence served by the Crown, characterising such information as “evidence from the bar table”. The first such exchange occurred during the cross-examination of the complainant who, on a number of occasions, volunteered that she had been drugged. Counsel for the applicant tried to inform the judge that there was no suggestion in the Crown brief that the applicant had drugged the complainant or that she had been drugged. The judge correctly and fairly observed that, in the absence of evidence that it was the applicant who drugged the complainant, she would not draw any such inference. However, her Honour continued “but if the witness believes she was (a) drugged or (b) under the influence of drugs at the time it is relevant to how she was feeling or how she may have been appearing to your client”.

It was no part of the Crown case that, at the time of the events giving rise to the charges against the applicant (around midday on the Sunday), the complainant was substantially intoxicated by alcohol or any drug. In fairness to the applicant, counsel should have been permitted to make that clear. The proposition she sought to make could not have been disputed by the Crown. It was not a question of counsel giving evidence from the bar table; it was appropriate for the parties to inform the Court as to what was and was not in issue.

The second such exchange, which occurred later in the trial, was even more troubling. It occurred during the evidence of the accused. He gave evidence that, after he had massaged the complainant, he kissed her and that she then pushed his head down. He said: “she wanted – like, made me go down on her”. The complainant had not given evidence of any such activity.

At the next adjournment, at the request of counsel for the applicant, the Crown sought to address the judge on that issue. He informed her Honour that it had been “a joint forensic decision at the commencement of the trial” not to adduce evidence of the fact that the complainant had told Nurse Birmingham about an act of cunnilingus. The Crown then attempted to explain the reason there was no count of cunnilingus on the indictment. The judge interrupted him, asking whether he should be stating from the bar table the content of the conference with the complainant.

The reason counsel for the applicant had raised the issue with the Crown during the adjournment, as she later informed the judge, was that, coming for the first time from the applicant in his evidence-in-chief, his account of an act of cunnilingus sounded like recent invention on his part. It is clear from the transcript that the Crown and counsel for the applicant shared the view that it would be unfair in the circumstances if her Honour drew any such conclusion. The true position was that the complainant had also spoken of such an act on the very night of her complaint and, so it would seem, did not maintain that it was a non-consensual act (or else did not come up to proof to support such an allegation). However, the judge stopped both counsel from informing her of those matters, insisting that they could not give evidence from the bar table. In the course of doing so, her Honour again personally criticised counsel for the applicant, accusing her of making inappropriate comments.

In our respectful opinion, the judge ought to have allowed the Crown to state the joint position he had discussed with counsel for the applicant during the luncheon adjournment. As explained above, her Honour ultimately drew an adverse inference against the applicant on the very basis apprehended by his counsel.

Returning to our consideration of the cross-examination of the complainant, counsel for the applicant went to the topic of the resumption of the relationship between the complainant and the applicant after he was released on bail for the alleged offences against the complainant. There was no objection to that evidence by the Crown but the judge stopped it. The relevant exchange is set out below:

The judge also stopped the next question, mid-sentence, and asked that the closed-circuit television connection with the complainant be disconnected. Her Honour then chastised counsel for not adhering to the terms of s 293 of the Criminal Procedure Act. Under that section, evidence is inadmissible in a trial for sexual offences if it discloses or implies that a complainant has or may have taken part or not taken part in any sexual activity. The section provides for exceptions to that rule.

Counsel pointed out that she had not asked about any sexual relationship. The judge responded that, by suggesting “close contact” and that the applicant “moved back in” with the complainant, counsel was being “suggestive”. Counsel responded by repeating that she had not intended to go into the sexual relationship but, in light of the judge’s concern, made an application under s 293 to allow the questions. After an exchange as to what was permissible under the section, the judge reiterated her view that anything implying or inferring sexual activity required leave. The debate concluded with the following exchange:

After a short adjournment, the cross-examination resumed. The judge told counsel at that point that she could not ask questions as to whether the complainant and the applicant had a “close friendship”, evidently taking the view that close friendship necessarily suggests sexual activity. Later, her Honour said:

Two concerns arise from that exchange. First, in the absence of any objection by the Crown, the judge stopped the cross-examination on the premise (which may be doubted) that the conduct counsel wished to explore amounted to “sexual activity” within the meaning of s 293. The conduct counsel was seeking to explore was remaining in “close contact”, moving back in together, maintaining a “close friendship”, kissing, holding hands and going out together. Those were matters as to which counsel said she had witnesses to support the applicant’s version of events. Evidence of such conduct would have been relevant to an assessment of the complainant’s credit and, with the possible exception of kissing, did not attract the need to consider s 293.

Secondly, the principal reason the judge appears to have rejected the applicant’s entitlement to explore the complainant’s conduct after the alleged offences was that such conduct was not referred to in the written s 293 application provided in advance of the trial. The exchange referred to above suggests that was because counsel did not anticipate her Honour would take such a broad view as to what amounts to sexual activity. In any event, it is difficult to understand how that could be a sufficient basis for rejecting the evidence out of hand.

Next, during the evidence of the neighbour, Sharon White, the Crown made an application under s 38 of the Evidence Act 1995 (NSW) for leave to question the witness as though she were being cross-examined. The basis for the application may be doubted but it is not necessary to determine that issue. The point for present purposes is that s 38(4) contemplates that, where the party who called the witness makes such an application, another party who has an entitlement to cross-examine the witness should ordinarily be allowed to exercise that right after cross-examination by the party who called the witness.

The position in the present case was complicated by the fact that the Crown’s application to cross-examine his own witness was made during re-examination. In the circumstances, the Crown submitted that, after he had cross-examined the witness, counsel for the applicant should be confined to re-examination (rather than further cross-examination). He submitted that counsel for the applicant should be restrained under s 42 of the Evidence Act from asking leading questions of the witness.

The judge imposed that restraint. In the further questioning that followed, in the absence of any objection by the Crown, her Honour interrupted counsel for the applicant, commenting that she had asked what sounded like a leading question.

The evidence of Sharon White was important to the applicant. As explained above, she had given evidence of a conversation with the complainant broadly to the effect that she (the complainant) was no longer sure about the events on the strength of which the applicant had been charged. Ms White believed she had repeated those comments to police; the relevant police officer did not recall her doing so. Regardless of the content of any exchanges between Ms White and the police officer, the suggestion that the complainant had at one point recanted from the version of her allegations against the applicant was powerful evidence in his favour. The transcript creates the impression that the judge was determined to contain the exploration of that issue in a manner that, in our assessment, was unfair to the accused.

The matters we have referred to in this section taken cumulatively would, if raised as separate grounds of appeal, inevitably have led to a new trial as what occurred amounted to a substantial miscarriage of justice. Of themselves, they may not have led to an acquittal. However, the doubt we have experienced as to the verdict is highlighted by the fact this doubt exists in circumstances where the trial was, in many respects, conducted on a basis unfavourable to the applicant. Put another way, having regard to the manner in which the trial was conducted by the trial judge, we feel more comfortable in discounting the advantage she would have had from seeing and hearing the witnesses and departing from her conclusion as the primary trier of fact.

We have considered both the evidence before the trial judge and her reasons, consistent with the approach set out in Filippou supra (see [20]-[27] above). For the reasons we have given, we are left with a real doubt that the applicant committed the offence and that it was a doubt which should have been shared by the trial judge. A consideration of the reasons of the trial judge not only does not dispel that doubt, but rather further fortifies it.

For these reasons, we entered the verdicts of acquittal on 29 May 2017.

The following formal orders should be made: