Kazantzis v R

BELL P: The applicant was charged with three counts of sexual intercourse without consent relating to three separate occasions in early 2016. In respect of each count, the intercourse was with the same woman (the complainant) with whom the applicant had commenced a relationship in or around mid-January 2016.

The applicant, who was aged 21 at all material times, and the complainant, who was aged 19, had met through the dating app “Tinder”, and their relationship was mutually torrid and aggressively sexual with both the applicant and complainant engaging in consensual penile-vaginal and anal sex in public locations, in bondage, threesomes and filming and posting videos and still shots of sexual acts including themselves on various social media platforms.

The first offence was alleged to have occurred some time between 1 and 17 February 2016 in the carpark of Westfield Burwood. The complainant and the applicant began engaging in consensual penile-vaginal intercourse. The applicant then proceeded to bring out a pink egg-shaped sex toy, to which the complainant initially consented to using, but felt “very uncomfortable” after it was inserted into her anus. The complainant gave evidence that she communicated to the applicant to not “push it any further” and to “[t]ake it out”, but that he “completely disregarded [her] wishes”. The complainant outlined that the accused got off her in the backseat of the car, after the pink object was fully inside her anus. Following this, the complainant went into a food-court bathroom but was unable to remove the object from her anus, and had to wait for a bowel movement to do so. There was no further sexual activity between the applicant and complainant that day, and the applicant drove the complainant to a nearby train station and she went home.

The second offence was alleged to have occurred on 18 February 2016, again in the carpark of Westfield Burwood. The complainant gave evidence that she was in the backseat of the applicant’s car, and that she and the applicant engaged in penile-vaginal intercourse for about three to five minutes. The complainant gave evidence that the applicant then inserted his penis into her anus and proceeded to penetrate her very quickly. The complainant initially consented to the applicant penetrating her anus, and it was only when she started feeling a sharp pain in her abdomen and around her anus, some 30 seconds to a minute after he penetrated her, that she told him to stop. The complainant explained that after telling the applicant to stop, she used her hand to push his chest to try and get him off her, but she had very limited movement because of her position in the car. The applicant removed his penis for a short period of time, and then re-inserted it again a few seconds later, without asking.

After the applicant re-inserted his penis, the complainant in her police statement said words to the effect of “please babe stop it’s really uncomfortable”, to which the applicant responded, “don’t you want me to cum?” The complainant said “yes I do but it’s hurting me and uncomfortable”. In her examination in chief, she added that, after this statement, she again said “please stop”. The complainant said that at that point, it felt like it did not matter what she said or did, as nothing was going to stop the applicant, and so she gave up trying and closed her eyes and looked at the ceiling of the car and waited for him to stop. Following this incident, on the complainant’s evidence, the applicant and the complainant did not participate in any other sexual acts on that day.

The third offence was alleged to have occurred on 12 March 2016, at a birthday party that the applicant had organised for his cousin in Sydney. The applicant would be supplying the alcohol and arranged for two adjoining rooms at a Sydney hotel to be booked. The applicant told the complainant that it would be a good opportunity to try and co-ordinate a threesome, to which the complainant outlined she was a “bit reluctant”. In the weeks leading up to the party, the applicant introduced the complainant to a third party, Emma, through a group conversation on Facebook Messenger.

The complainant attended the party with Emma, and gave evidence that she drank a large quantity of alcohol at the party, and was quite intoxicated. At one point during the night, the applicant and Emma got into a heated argument, and Emma left the party soon after that. The complainant recalled complaining to people at the party about the applicant, and in particular his obsession with threesomes. At one point during the night, the complainant recalled being in the bedroom and being penetrated by the applicant from behind. She did not recall how she came to be in the bedroom, but remembers being “pretty much blackout drunk”. The complainant indicated that at this point in time, she would have had between 10 to 15 shots of alcohol.

The applicant pleaded not guilty on all counts.

After a trial of some 11 days, on 12 December 2018 the applicant was found not guilty on counts 1 and 3, but guilty on count 2. He was sentenced in respect of count 2 to a non-parole period of 12 months’ imprisonment to date from 15 March 2019, with a parole period of 12 months’ imprisonment which will expire on 14 March 2021.

The applicant appeals on a single ground, namely that the jury’s verdict was unreasonable or unsupportable having regard to the evidence. He does not appeal on the ground of inconsistent verdicts (cf. Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35) although senior counsel for the applicant, Mr Ozen, did place reliance on his acquittal by the jury, especially in relation to count 1, on the basis, he submitted, that that acquittal bore upon the jury’s assessment of the complainant’s credibility. To that extent, the allegations especially in relation to count 1 have a continuing relevance for the purposes of the present appeal.

As this is an appeal which involves a question of fact, the applicant recognises that leave is required to prosecute the appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Leave to appeal should be granted.

In an appeal of this nature, providing leave is granted, this Court is required to carry out its own assessment of the evidence to determine whether it was open to the jury to find count 2 was established beyond reasonable doubt: M v R (1994) 181 CLR 487 at 493-5; [1994] HCA 63 (M v R).

In Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [66]-[68], Macfarlan JA, with whom Adamson and Beech-Jones JJ agreed, surveyed the relevant principles to be applied on a challenge to a jury’s verdict as unreasonable as follows:

Another valuable summary of the principles is contained in the recent decision of Wilson J (with whom R A Hulme and Hamill JJ agreed) in RC v R; R v RC [2020] NSWCCA 76 at [123]-[147]. At [143], her Honour said:

In answering the question whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, this Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, or the consideration that the jury has had the benefit of having seen and heard the witnesses: M v R at 494-495; Pell v R (2020) 94 ALJR 394; [2020] HCA 12 at [37].

There was no issue that the applicant and the complainant drove to the Westfield Burwood carpark at approximately 10.46am on 18 February 2016 and commenced to have consensual sex in the back seat of the applicant’s car.

It was not ultimately in contest at the trial or on appeal that, in the course of that sexual encounter, after the couple had moved from having vaginal sex to anal sex, the complainant in fact withdrew her consent. Rather, the critical issue was whether or not the applicant had knowledge of this or was recklessly indifferent to this fact.

On this issue, senior counsel then appearing for the applicant had ultimately submitted to the jury (subject to my bold interpolations for context in square brackets) that:

It is necessary to review all of the evidence bearing upon the second count to make an assessment as to whether or not the jury’s verdict was unreasonable within the meaning of the authorities referred to at [12]-[15] above, paying full regard to the fact that the jury had the benefit of having seen and heard the complainant.

The complainant addressed the circumstances of her withdrawal of consent in a statement to the police, the relevant extract of which became Exhibit 7 in the trial. Her account in this statement, dated 23 May 2016, was as follows:

Other evidence deriving from the complainant in relation to the events of 18 February 2016 took the form of Facebook Messenger messages with a woman named Katrina, who was evidently known both to the complainant and the applicant. Indeed, the extract of Facebook Messenger conversations that were in evidence at the trial disclosed that, at least in March 2016, Katrina was not only communicating directly with the complainant, but was also communicating the complainant’s complaints to the applicant, and showing the complainant screenshots of the applicant’s responses. As such, Katrina acted as something of an intermediary between the applicant and the complainant in March 2016.

A social media dialogue between the complainant and Katrina on 5 March 2016 discloses that the applicant wanted to invite Katrina to the party on 12 March 2016 at which the third offence (see [6]-[7] above) was alleged to have occurred. She did not attend. The complainant messaged Katrina the following morning, 13 March 2016, at 3.46am, saying:

On 14 March 2016, the complainant sent Katrina a screenshot of a post apparently lodged by the applicant on the social media platform, Tumblr, announcing that he was single and stating:

On 22 March 2016, at 12.05am, Katrina sent the complainant screenshots of a dialogue she had had with the applicant in which they talked about another young woman he had met on Tinder. In this dialogue, he asked Katrina not to tell the complainant that he was seeing other girls. Katrina did not follow that request, and later in the Facebook Messenger string on 22 March 2016, the complainant said to Katrina:

Later in this dialogue between Katrina and the complainant, the latter said, referring to the matter which became the subject of the third offence (see [6] – [7] above):

On 22 March 2016 from approximately 7.09pm onwards, the following conversation took place via Facebook Messenger:

Later on 22 March 2016, beginning at approximately 8.51pm, Katrina sent screenshots to the complainant of a conversation that Katrina was having virtually simultaneously with the applicant. In that separate dialogue, Katrina accused the applicant of having raped a girl, referring to the complainant. Katrina sent the applicant a screenshot of the complainant’s accusation set out at [25] above. The applicant denied the allegation that he had raped the complainant whilst she was drunk (this being a reference to the subject matter of the third offence charged), saying at approximately 8.52pm:

The applicant then set out a message which he asked Katrina to send to the complainant which was in the following terms:

After Katrina sent a screenshot of the message at [28] to the complainant, Katrina’s conversation with the applicant continued with her saying “See the thing is, you may prove yourself innocent with that but there was another incident.” She then sent the applicant a screenshot of that part of her dialogue with the complainant that has been emphasised at [26] above, this being the encounter on 18 February 2016.

Katrina, having sent the screenshots of her dialogue with the applicant to the complainant, then continued her dialogue with the complainant, with the latter saying as follows:

Katrina then sent the complainant further screenshots of the conversation she was virtually simultaneously having with the applicant, which contained his response to the allegations about the 18 February 2016 encounter. The dialogue between Katrina and the applicant derived from these screenshots was as follows:

After receiving the screenshots extracted at [31] above, the conversation between Katrina and the complainant continued, with the complainant saying:

Following receipt of this message, Katrina sent the complainant further screenshots of the dialogue she was having with the applicant at approximately 10.24pm as follows:

In the early hours of 23 March 2016, at 12.36am, the complainant sent Katrina a copy of a conciliatory message the applicant had evidently sent to her, in which he asked her to forget about him and to please stop talking to others about him (presumably a reference to Katrina). The complainant then said to Katrina:

In the early hours of 24 March 2016, the applicant, referring to the encounter on 18 February 2016, sent the following message via Facebook Messenger to Katrina:

One matter relied upon by the applicant as undermining the complainant’s credit was a survey she had responded to on a Tumblr post on 19 February 2016, the day after the 18 February 2016 encounter. This survey, which was referred to by senior counsel for the applicant in his address to the jury extracted at [18] above, asked respondents to rate and describe their response to a variety of sexual topics and practices, including “public sex”, “bondage”, “spanking” and “anal”. Using the pseudonym “Lily”, the complainant had completed the survey. Under the topic of “anal”, she had entered a rating of 9 out of 10, and posted the following entry:

The complainant was cross-examined in relation to this entry, and admitted writing the above entry and entering a rate of 9 out of 10. The complainant was questioned about this, as follows:

On 18 May 2016, the police obtained a warrant issued by a judge of this Court pursuant to the Surveillance Devices Act 2007 (NSW) to record a telephone conversation between the complainant and the applicant. This telephone conversation took place on 23 May 2016, just over 3 months after the incident the subject of count 2, and relevantly included the following exchange with respect to count 2:

The applicant was interviewed by the police on 27 May 2016, four days after the taped telephone call with the complainant. A transcript of this electronically recorded police interview was in evidence.

The interview covered the subject matter of all three of the counts upon which the applicant was subsequently charged. The passages from the police interview relevant to the events of 18 February 2016 were as follows:

In a later passage of the interview, the applicant was again asked about the encounter on 18 February 2016 and why he remembered it. He answered:

Later on in the interview, the Officer in Charge told the applicant that he was going to read a portion of the complainant’s witness statement to him. The applicant was asked whether he recalled the complainant using her left hand to push the applicant’s chest area, in an attempt to get him to stop. The applicant replied as follows:

The applicant was specifically questioned about whether he was aware that the complainant was withdrawing consent during the incident on 18 February 2016, as follows:

In the course of a cross-examination which lasted some 4 days, the complainant was challenged on various aspects of this evidence. For example, the complainant was cross-examined about the difference in detail between what she told Katrina in Facebook Messenger messages, and her evidence in chief. The complainant explained that she provided additional details in her evidence because her police statement did not record every microsecond of what she experienced, that anything she had added was simply detail of the actual account, and it was all part of giving her account of what happened from her memory, which was all consistent with her statement.

The complainant was further cross-examined and rejected the suggestion that the applicant saying “[d]on’t you want me to cum”, to which she responded “[y]es I do”, was her indicating to the applicant that she wanted him to ejaculate. The complainant explained that she said “[y]es I do, but it’s hurting me and uncomfortable” (emphasis added). As a result, she thought he would stop after knowing that it was uncomfortable and was hurting her.

It was specifically put to the complainant that in her sexual relationship with the applicant prior to the incident of 18 February 2016, the word “stop” had not always meant “stop”. The complainant replied that this was completely wrong, and that she did not remember ever actually saying “stop” during sex before the incident. The complainant said that she rarely ever said “stop” unless she meant it, and that was always the case.

It was put to the complainant that her expectation when she answered the question “[d]on’t you want me to come?” by saying “[y]es I do, but it’s hurting me and uncomfortable” was that the applicant would go more slowly. The complainant responded:

The complainant was asked why she still wanted to be in a relationship with the applicant, in light of the non-consensual incidents that she had described. The complainant explained that this was her first relationship, and that the entire relationship was not terrible. The complainant and applicant had spent time together, had conversations and she enjoyed the consensual sex. Those were the good elements of the relationship that persuaded her to stay. She also felt that she could not leave the relationship as he had videos and pictures of her. This last point was confirmed by other evidence tendered by the Crown in the trial.

As outlined at [10] above, the sole ground of appeal was that the jury’s verdict was unreasonable or unsupportable having regard to the evidence.

In written submissions, it was submitted on the applicant’s behalf that the jury’s verdicts with respect to counts 1 and 3 meant that they must have had doubt about the credibility of the complainant’s version on those counts and that, consistent with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, that is a doubt that they were obliged to take into account when considering count 2.

In oral submissions, whilst conceding that acquittal in relation to two of the counts did not compel a conclusion that the complainant must be taken generally to be untruthful, Mr Ozen, submitted that:

Mr Ozen summarised the reasons put to the jury by counsel for the applicant at trial, as to why they would have a doubt regarding count 2 as follows:

This argument was developed further in oral submissions, with Mr Ozen submitting that:

In response, the Crown submitted that it was clearly open to the jury not to be satisfied beyond a reasonable doubt in respect of counts 1 and 3 for reasons completely unrelated to the complainant’s credibility. For instance, with respect to count 1, there was no evidence of complaint, the incident was only reported to police some 18 months after it occurred, and there was nothing in evidence which would have allowed the jury to assess the applicant’s reaction to the allegation.

With respect to count 3, the level of the complainant’s intoxication, which she admitted in the Facebook Messenger exchange with Katrina, raised a significant issue concerning the reliability of the little memory she had of the evening in question.

In oral submissions, Mr Ozen submitted that an extract from a message sent by the applicant to Katrina (see [35] above) in which he indicated that he “had content [sic: consent]” was indicative that the applicant was saying that he “thought she at that point was consenting, or at least consenting for [him] to try to continue”. Indeed, Mr Ozen submitted that:

Mr Ozen submitted that a number of statements made by the applicant, including that “what I did was wrong” (see [40] above), “I will get help” (see [33] above), and “I made a mistake with that one” (see [31] above) were “post fact realisations” or “post fact acceptance” of the complainant’s lack of consent, and such realisations “ought to be taken by this Court and it ought to have been taken by the jury as something he realises after the fact”.

Similarly, in relation to the taped telephone conversation which took place on 23 May 2016, Mr Ozen submitted that the following passage, extracted at [38] above,

Likewise, the applicant’s statement that “I do wish I had stopped when you told me to” during the taped telephone conversation (see [38] above) was submitted orally to be an “expression of regret” which is how “he is feeling when he is having this conversation with the complainant”.

During oral submissions, with respect to this statement by the applicant, the following exchange occurred between Wilson J and Mr Ozen:

In relation to the electronically recorded interview with police, and the applicant’s response (see [40] above) that:

In my opinion, the jury’s verdict on count 2 was not unreasonable, and the applicant has not established that it should be overturned.

It was well open to the jury to conclude that the applicant was, at the time of the encounter, aware that the complainant wished him to stop penetrating her and had withdrawn her consent.

There is no doubt that the applicant had communicated her desire for him to cease both verbally and physically, by pushing him away.

There is also no doubt that the applicant was well aware that the complainant had asked him to stop on several occasions. This was not a case of him not having realised that fact at the time. On his own account, he continued after the complainant’s protests after a pause and more gently, in the expectation that the pain which had caused the complainant to ask him to stop would be less severe or disappear.

There was a clash between the complainant’s account and the applicant’s account as to how long after she had asked him to desist that he continued to penetrate her anally. On this issue, the jury had the full benefit of seeing the complainant in the witness box and hearing her account.

Her account was also supported by a number of the complainant’s statements to Katrina well prior to charges having been laid, as well as by various statements by the applicant which were capable of being understood as admissions by the applicant that he did not stop after he knew the complainant had wished him to. The applicant’s approach seems to have been to assume that he could make the pain which had actuated the complainant’s protest disappear by adjusting his technique. This was, at the very least, reckless to continue, notwithstanding his knowledge of the complainant’s discomfort and protestations.

Although some of the applicant’s statements after the event may be capable of being construed as having been made with the benefit of hindsight, as Mr Ozen had submitted, they are, in my opinion, at best ambiguous. More significantly, many of the applicant’s statements are consistent only with him accepting that he persisted with anal intercourse after and in the knowledge at the time that the complainant had withdrawn her consent.

In particular, the statements made by the applicant as set out at [31] above, the statement in the conversation extracted at [33] above that “I will do whatever it takes to destroy any part of me that doesn’t stop when a girl asks me too [sic]”, the statements in the taped telephone call “I can say it was, you know, a moment of weakness” and “I do wish I had stopped when you, when you told me to. Yes” set out at [38] above, the statement in the police interview at [40] above that “What happened that day from my memory it was just a lapse, it was just me fucking up. Right? I'm not gunna, you know. Because I should have stopped exactly when she told me to and not continue”, all provided a firm basis for the jury to reach the verdict it did on count 2.

The complainant’s account of the incident was broadly consistent across both Facebook Messenger messages to Katrina, and also in her police statement. She was subjected to vigorous cross-examination, but adhered to her testimony.

Mr Ozen was correct not to pursue a challenge on the basis of inconsistent verdicts. For the reasons set out at [54]-[55] above, the Crown’s failure to succeed on counts 1 and 3 did not mean that the jury was bound to reject the complainant’s evidence on count 2.

Unlike count 3, the complainant was not affected by alcohol at the time of the events the subject of count 2 and her complaint in relation to it was made very soon afterwards. Indeed, on the applicant’s account to the police and contrary to a submission made on his behalf, the complainant complained of the encounter on 18 February 2016 within a couple of days of it having occurred (see [40]-[41] above). She also made such a complaint clearly in her Facebook Messenger messages to Katrina, just over 4 weeks later (see at [26], [30] and 32] above).

For all of the above reasons, I do not consider, to use the language of M v R at 494, that “there is a significant possibility that an innocent person has been convicted”, and that a miscarriage of justice has occurred.

I would grant leave to appeal but dismiss the appeal.

DAVIES J: I have had the advantage of reading the judgment of Bell P in this matter. His Honour has set out the factual background and his reasons for concluding that the appeal should be dismissed. I agree with his Honour’s reasons.

I am satisfied from my own examination of the evidence at the trial that it was open to the jury to determine beyond reasonable doubt that the applicant was guilty of the offence in count 2. In particular, it was open to the jury to conclude from the Facebook messages posted on 22 and 23 March 2016 by the applicant, from what he said in the taped telephone call of 23 May 2016, and from his answers in the ERISP conducted on 27 May 2016, that the applicant was at least reckless as to whether the complainant was consenting to his continuing with the sexual intercourse in the car on 18 February 2016.

It was put to the jury by the applicant’s senior counsel in his closing address that all of those statements were made with the benefit of hindsight, and that the statements did not reflect his state of mind at the time that he was engaging in the act of sexual intercourse. This was also a matter emphasised by Mr Ozen at the hearing of the appeal. The jury must have rejected that interpretation of the applicant’s statements.

Nowhere in those statements does the applicant contrast his thinking at the time with his later thinking brought about by reflection on what had occurred. It was open to the jury to conclude from those statements that they reflected the applicant’s thinking and knowledge at the time, and that he was remorseful at the time of making the statements because he knew that at least he had been reckless about whether the complainant was consenting.

WILSON J: I am grateful to the President, whose judgment I have seen in draft. His Honour’s conclusions, and the reasons he has given for them, accord with my own. I also agree with the observations of Davies J.

I agree with the orders proposed by the President.