Williams v R

1. [1]

   HOEBEN CJ at CL: I agree with Adamson J and the orders which she proposes.

2. [2]

   R A HULME J: I am fortunate to have had the opportunity to read the judgment of Adamson J in draft. I agree with the orders her Honour proposes for the reasons she has provided. In relation to Ground 4 specifically, I have reviewed the entirety of the record of the trial and concur with her Honour’s analysis.

3. [3]

   ADAMSON J: Michael Williams (the appellant) was tried on indictment by Priestley DCJ without a jury. His Honour found the appellant guilty of counts 1 and 3 (sexual intercourse without consent) and not guilty of count 5 (doing an act with intent to pervert the course of justice). Counts 2 and 4 were alternative counts of indecent assault which did not arise by reason of the trial judge’s findings of guilt on counts 1 and 3. On 21 July 2020, his Honour imposed an aggregate sentence of 3 years commencing on 22 July 2020 with a non-parole period of 1 year and 8 months which is to expire on 21 March 2022. The sentence is not the subject of challenge.

4. [4]

   The appellant was taken into custody on 22 July 2020. On 28 September 2020 the appellant filed an application for release on bail which was heard on 3 December 2020. On 17 December 2020, after serving 149 days in custody, he was released on bail and has remained at liberty since that date.

The grounds of appeal

1. [5]

   The appellant appeals and, where necessary, seeks leave to appeal against his convictions on counts 1 and 3, on the following grounds:

   1. (1)

      The trial judge erred by failing to consider and deal with the submission that the Court ought give a Murray direction (including by failing to give reasons for decision as required by s 133 of the Criminal Procedure Act 1986 (NSW) in respect of the evidence of the complainant and then by failing to give such a direction).

   2. (2)

      The trial judge erred by failing to give a direction pursuant to s 165 of the Evidence Act 1995 (NSW) in respect of the evidence of the complainant.

   3. (3)

      The trial miscarried as a consequence of the judge erring (at [228]) by failing to properly take into account and consider (including by giving adequate reasons for decision as required by s 133 of the Criminal Procedure Act) ‘DNA evidence’ (which showed the appellant was not identified as the source of DNA lifted from the complainant’s underwear and, was in fact, excluded as the contributor to a particular male DNA profile lifted from the underwear) when determining the question of whether the Crown had proved beyond reasonable doubt that it was the appellant who had sexually assaulted the complainant and not a third party.

   4. (4)

      The verdict of the trial judge in respect to each count of sexual assault was unreasonable and could not be supported having regard to the evidence.

   5. (5)

      The trial judge erred by not properly applying the onus of proof.

2. [6]

   Before turning to the grounds, it is necessary to address the conduct of the trial and the reasons given by the trial judge for his findings of guilt.

The trial

1. [7]

   The Crown case was that the appellant had engaged in sexual intercourse with the complainant without her consent by digital and penile penetration (counts 1 and 3 and the alternative counts, 2 and 4) and knowing that she had not consented. It alleged that these acts had taken place while she was heavily intoxicated and unconscious, or barely conscious, and sleeping on a couch in a residence in Yamba where she had attended a gathering that evening at which the appellant was present.

2. [8]

   In support of count 5, the Crown relied on evidence to the effect that the appellant had taken the blanket which, on the Crown case, had covered the complainant and the appellant at the time of the sexual offences, thereby preventing subsequent analysis and testing. The evidence in support of count 5 was also relied on as amounting to a consciousness of guilt on the part of the appellant to counts 1-4.

3. [9]

   Because of ground 4 (the unreasonable verdict ground), it is necessary to consider the evidence in some detail. It is convenient to do this at the outset since it provides the context for the other grounds.

4. [10]

   The Crown relied on evidence of the complainant; her friend Bree; Tom, who had resided at the premises where the incident was alleged to have occurred; Ashley (known as Ash), Tom’s flatmate; Stacy, a friend of Tom’s; Nick, a friend of Bree’s; and Jack, a friend of the complainant. The Crown also called Senior Constable Lawler and Detective Senior Constable Ware, as well as expert evidence from Clayton Walton, a forensic biologist. It also tendered maps, photographs and diagrams. This evidence is summarised below. I propose to set out the cross-examination based on alleged inconsistencies between police statements and evidence at trial separately in the context of the police investigation, so as not to disrupt the narrative.

5. [11]

   On Saturday 23 June 2018 the complainant, who was then about 27 years old, returned from a holiday in Thailand. She had been away for ten days, of which she had been unwell for eight. She regarded her immune system as being “still quite low” on her return. She landed at Gold Coast Airport at about 8.30am after a 12-hour overnight flight from Thailand and was picked up by a friend’s grandparents and taken to Byron Bay where the grandparents lived. Her friend drove her from Byron Bay to Yamba where the complainant lived. They arrived in Yamba at about 3.30pm on Saturday afternoon.

6. [12]

   Unexpectedly, the complainant was called in to work at the restaurant in Yamba where she worked part-time. Although she was “overtired”, she needed the money and agreed to do the shift, which began at about 6.30pm and concluded at about 10.30pm. After she had finished work, she stayed at the venue and consumed alcohol with her colleagues. Bree, one of the complainant’s friends, who wanted to catch up with the complainant after her holiday, joined them when she finished work at the Paradiso, another restaurant in Yamba.

7. [13]

   The complainant had a couple of drinks before Bree arrived and had a couple more after she arrived. She recalled drinking at least four Cadillac margaritas (Cointreau, tequila and sours) as well as at least three tequila shots. She worked behind the bar and knew that there were at least three different types of tequilas and knew that she had tried at least one of each. She agreed that she had had “over ten” standard drinks. At about 11.30pm, they realised that they had left it too late to move on to the local hotel as the lock-out laws prohibited patrons entering a pub after 11.30pm. As far as the complainant was concerned, it was Bree who was making the plans because the complainant herself was “just in the moment enjoying [herself]”. At some stage, the complainant rang her friend Jack to see if she could catch up with him.

8. [14]

   Jack’s evidence was that he was at home with his parents that night and did not go out. At that time he was working two or three days a week in his father’s landscape business. He did not agree that his hands were a “bit rough”. The texture of the hands of the men who might have had the opportunity to commit the offence was relevant to the defence case that the Crown could not prove that the appellant was the complainant’s assailant. In cross-examination, Jack agreed that he might have attended the party for a short period but he did not recall being there and had said in his statement given in July 2018 that he had not been there. He accepted that he was sexually attracted to the complainant.

9. [15]

   Bree’s evidence was that when she arrived at the restaurant she was “trying to play catch-ups” (with drinking) but “eased up” when she remembered that she was going to have to drive the complainant home in the morning in time for the complainant to go to work.

10. [16]

    Bree’s evidence was that they left the restaurant at around 1.30am. By this time Bree assessed the complainant as being “very drunk”. Bree had earlier sent a text to Tom, who lived on Yamba Street, to ask if he was doing anything that evening, to which he had responded that he had a fire in the garden. Before leaving the restaurant, Bree texted him again to see if the party was still going. Tom responded by asking her to bring some firewood. Tom’s evidence was that Bree had texted him to ask if they could come and he said that he already had enough people there but Bree wanted to come so he asked her to bring some firewood.

11. [17]

    The complainant left her car parked near the restaurant and accompanied Bree in her car to Pippi Beach, a local beach, to collect firewood. The complainant remembered collecting the wood on Pippi Beach but did not remember the journey there. She estimated that Tom’s place was about 400-500m from Pippi Beach. Bree’s estimate was that it was about 70m. The complainant had no recollection of getting to Tom’s place but did recall coming in the gate and into the carport with the firewood. She described her condition on arrival as “heavily intoxicated”.

12. [18]

    Tom lived in the bottom half of a two-storey house which had a backyard and carport and a side gate which was always latched closed because he had a dog. At that time, there were no tenants on the first storey. He had been living there since about 2016. Ash, a male, had moved in to live with him in about February 2018. Ash worked as a drilling fluid supervisor in the Yamba area. Generally he wore gloves when working but not all the time, with the consequence that sometimes his hands became rough from the work.

13. [19]

    Tom’s evidence was that on the night of 23 June 2018, the appellant came to his place in the evening. They knew each other because Tom had done labouring work on a site where the appellant was engaged as a tiler. They set up the music and sat in the garage and had some drinks. Tom believed that the front door was locked, but accepted in cross-examination that he did not really know. The appellant was drinking beer and Tom was drinking Jack Daniel’s. Subsequently, Stacy, a friend of Tom’s, arrived and joined them in the garage. Later, two women, Kate and Joy arrived. At about 8pm they left the garage and lit a fire in the backyard and sat around it. Ash came home at around that time. Subsequently Nick also arrived and “a little later on”, the complainant and Bree arrived. Tom’s evidence was that he thought that there was also a man with them called Jack but he did not remember as it was so long ago. In cross-examination, Tom said that Jack had come with Bree and the complainant in the car and that Jack was “renowned for taking a lot of drugs and being a bit of a party animal. Loud and obnoxious”. Tom’s tentative recollection that Jack (the complainant’s friend) was present on the evening of 23-24 June 2018 was not generally supported. Jack himself recalled that he had attended a gathering at Tom’s place the previous weekend.

14. [20]

    Tom agreed that over the course of the evening “just a bit fewer than 20 people” had come and gone at one time or another. They were drinking alcohol and some people were smoking marijuana. He accepted that men by the names of Adam and Rick (known as Fitzy) came to the party for about half an hour and that two further men, Ernie and Derby, had also been there.

15. [21]

    Stacy’s evidence was that Tom and the appellant had seen her in town and had invited her back to Tom’s place. She recalled about five or six people being there when she arrived. Much later, the complainant and Bree arrived with a “massive tree hanging out of their car boot”, which they wanted to put on the fire. At that time, Stacy recalled that Tom, Alex and the appellant were still at the party. Stacy’s evidence was that the people at the party included Tom, Ash, the appellant, Rick (Fitzy), Alex, possibly Kate, the complainant and Bree. She was not sure whether Nick, Ernie or Derby were there. She did not see anyone take drugs. She only saw people drinking. She recalled that Bree and the complainant had arrived with a man but did not know his name.

16. [22]

    When the complainant and Bree arrived, the complainant recognised Tom, whom she already knew, and Nick, as well as an older man (the appellant), whom she had seen a couple of years previously at a poetry reading in the town, known as a “spoken word event”. Detective Ware ascertained that the event had taken place on 13 October 2016.

17. [23]

    The complainant recalled another woman being there, whom she knew to be Tom’s friend (presumably, Stacy). Bree knew Tom and Nick already. She had not yet met the appellant but Bree described herself as being “enamoured” with the appellant’s story and wanted to be friends with him on Facebook. The complainant observed that the appellant was “a lot older than in his 20s” and was a “good generation older” than the rest of the people at the gathering, including herself. Of those present at the gathering when the complainant and Bree arrived, she classed Bree as her friend and Tom and Nick as acquaintances. The appellant fell into neither of those categories.

18. [24]

    The complainant and Bree went inside to make a drink from the white spirit and pineapple juice which, according to Bree, the complainant had brought with her from the restaurant. They took their drinks outside and sat around the fire, talking and putting more wood on it. Only the complainant drank the drink with the white spirit as Bree planned to drive the complainant to work in the morning and wanted to make sure that she was sober in time to drive back down the main road to her house. Bree saw the complainant make at least one drink in Tom’s kitchen.

19. [25]

    The complainant agreed in cross-examination that she had no idea whether she had had any drug other than alcohol at the party. She was on medication for fibromyalgia but did not know whether it affected her level of intoxication. She did not know whether someone might have put something in her drink that night.

20. [26]

    The complainant felt “very drunk” once she sat down “after a busy day”. The last thing she remembered was leaning to the side and resting her head on Nick’s lap. She had no memory of how she later came to be on the couch in the lounge room and accepted that she had been in an “alcoholic blackout”, that is that her memory was blacked out due to intoxication.

21. [27]

    Tom’s evidence was that at some stage while the group was still sitting around the fire, Kate and Joy left, as did Jack (if he had ever been there) and Ash went to bed, leaving Tom, the appellant, the complainant, Bree, Stacy and Nick around the fire. No one else arrived after that. Tom said in cross-examination that Jack had left about half an hour or 40 minutes after he arrived. Tom described Jack’s behaviour that night as being consistent with that of someone on methamphetamine or amphetamine. Jack denied using stimulant drugs at around that time.

22. [28]

    Ash’s evidence was that he had been living with Tom for up to two months before 23 June 2018. He remembered Tom, Stacy, the appellant and someone known as “Fitzy” drinking around a fire in the backyard. He “ducked off” to bed at about 10.30 or 11pm without announcing it to the group because he did not want someone trying to convince him to stay up as he was exhausted from the working week. He had gone to bed before the complainant and Bree arrived. The big branch (which they had presumably brought with them) was not on the fire when Ash went to bed. Ash recalled that “Fitzy” had left between 20 and 45 minutes before Ash went to bed. Ash fell asleep within about 5 or 10 minutes and did not remember waking up during the night.

23. [29]

    Nick gave evidence that he arrived at Tom’s place a little after 1.30am, having come from the Pacific Hotel. When he arrived, there were nine other people there: Jack, Darcy, Ernie, Tom, the appellant and “four women”. He did not know the surnames of Jack or the appellant. Nor did he know the names of any of the women. He said that after he arrived, Jack, Darcy and two of the women left, followed by Ernie and another woman. Subsequently, the complainant and Bree arrived. When the complainant and Bree arrived, the other people at the party were Nick, Tom, the appellant and a woman whose name Nick did not know. Nick’s recollection was that Bree took the complainant inside and that she had fallen asleep on the couch, Tom had gone to bed, the unnamed woman had left at some stage and that he and Bree had gone home to his house, leaving the appellant beside the fire.

24. [30]

    Nick’s evidence was that the complainant had fallen asleep by the fire with her head in his lap. When asked whether he found her attractive, he said “Maybe a little bit”. He denied that he had helped her inside to the couch.

25. [31]

    Bree recalled the complainant going to sleep on the ground and Nick deciding to put her inside where she would be more comfortable. Bree stayed by the fire while Nick helped the complainant walk inside. Later Bree and Tom went inside to make sure that she was in a safe position, in the “recovery position” (with her head to the side facing the back of the couch), and get her some water. Bree took the complainant’s shoes off and put them on the floor and covered her with a blanket before going back outside with Tom to the fire.

26. [32]

    Tom’s evidence about the complainant being moved inside was that he had grabbed the complainant’s knees, Bree had grabbed her around the torso and Nick had grabbed her under the arms. They had done so because she could not walk properly as she was intoxicated and slurred her words and her eyes were heavy. They placed her on the couch so that her head was facing towards the back of the couch in the “recovery position”. They put a blanket over her and folded it up to wrap her completely. At the time they moved the complainant inside, Tom assessed his own state of intoxication to be about “a 5 or a 6, out of 10”. He was aware that others at the party had smoked marijuana and recalled that the complainant and Bree said that they had had “some MDMA or something up at the pub”.

27. [33]

    Tom’s evidence was that some time after they had moved the complainant inside, he and Stacy went inside to his bedroom on the ground floor, leaving the appellant, Nick and Bree outside around the fire. At that time, Tom observed that the complainant was still on the couch in the recovery position where they had placed her earlier. He and Stacy were awake for the next hour and a half in his bedroom.

28. [34]

    Stacy recalled that she and Tom had gone to bed at about 1am. She did not take much notice of who else was still there but it was her impression that everyone was leaving. She recalled that the complainant was sick at one point but otherwise “seemed fine”. At some stage during the night, Stacy went to the bathroom. She noticed that the complainant and the appellant were “head to toe” on the couch, meaning that one head was at one end of the couch and the other head was at the other, and the blanket was over both of them. In cross-examination, she confirmed that the two were on the couch in the morning but when she had first seen two people on the couch in the course of the night, she could not see whether the second person on the couch was the appellant.

29. [35]

    Bree recalled that, not long after moving the complainant inside, Tom went to bed. She sent him a text at 4am to which he did not respond. Bree left Tom’s house with Nick at some time between 4am and 4.45am. On her way out she went inside to collect a bottle of Coke Zero from the fridge and, while she was there, she checked on the complainant. She saw the appellant trying to lie on the couch behind the complainant and said, “Look, you’re never going to fit on the couch. Just find somewhere else to sleep.” In cross-examination, Bree confirmed that the appellant had got off the couch and left the room by the time she left the house.

30. [36]

    The complainant’s next memory was waking up to a man of heavy build being on top of her. She was lying on a soft surface on her left hand side with her hands in front of her and her legs bent at the knee. She appreciated that she was inside but otherwise did not know where she was. It was pitch black and she could not see anything. She was clothed in the jeans, top and underwear she had worn to the restaurant. The button and zip of her jeans were already undone. She did not know whether she had undone the button and zip herself or whether someone else was responsible. She sensed that the man was trying to pull down her mid-rise jeans and her underwear (a lace G-string) to access her genitals. The man began to touch her on her vagina with his fingers. He then inserted his fingers into her vagina (count 1) and then replaced them with his penis (count 3). The penetration was effected from behind her. His body was heavy and his skin was rough. He said in a gravely male voice, “Come on girl. Come on let me in. Come on girl.” His voice was low and his head was about 60cm away from her ears. Although she felt able to exclude the possibility that the voice was that of Tom or Nick, she accepted that her capacity to make accurate assessments with her ears was adversely affected by alcohol.

31. [37]

    The complainant felt the man’s penis get at least partway into her vagina. She was conscious of his moving around for about 20 seconds to get a better position or angle.

32. [38]

    Although the complainant did not know who the man was, she knew that it was neither Tom nor Nick, whom she described as “slender”. The complainant recognised the voice of the man as the same voice that she had heard at the spoken word event.

33. [39]

    The complainant said that, throughout, she was trying to say “no” but her voice was muffled by the blanket which was on top of her, around her stomach and neck. She had no further recollection of what occurred with the man and did not recall when he finished or whether he left. In cross-examination, the complainant said that she was quite sure that night that it was the appellant who had penetrated her.

34. [40]

    Bree went back to Nick’s place and had coffee and toast and waited until 6am when she believed the Caltex service station would open so that she could buy cigarettes. She rested but did not sleep and got up again at 8am as she had promised to take the complainant to work that day and knew that the complainant’s shift began at 10am.

35. [41]

    When Ash woke up in the morning and, at about 7am, went to the kitchen for a drink of water and lemon juice, he noticed that the appellant was lying on the couch under a blanket next to another person who was against the back of the couch. The blanket covered the other person but not the appellant, who was fully clothed and looked “really uncomfortable”. Ash recalled the blanket as being “like a brown, rusty, kind of tiger pattern blanket”. After he had got his drink, he returned to his room and watched Netflix on his tablet.

36. [42]

    Bree drove back to Tom’s place to find the appellant and the complainant asleep on the couch. The appellant was lying on the outer side of the couch, which meant that Bree had to wake him to get to the complainant. A blanket was covering both of them and their heads were both up the same end of the couch. When Bree pulled the blanket off them, she noticed that the complainant’s pants were down just below her buttocks and the appellant’s hand was on her waist or down on her hips. The appellant, who was fully clothed, got up and left.

37. [43]

    According to Bree, she could see the complainant’s pubis exposed because her jeans had been pulled down at an angle. Bree did not raise this with the complainant.

38. [44]

    The complainant’s next recollection was being woken up in the morning by Bree. When she sat up on the couch she realised that she was in Tom’s lounge room. Her jeans were undone and around her hips, her shoes were off and her glasses were on the floor. The complainant had worn glasses since she was nine years old because she is long-sighted in one eye and short-sighted in the other. She could not recall how her glasses had come to be on the floor that night and volunteered the possibility that they had fallen off or been placed there, either by herself or someone else. She did not regard it as being strange that her jeans were undone because she could have undone her jeans before sitting or lying down to make herself more comfortable. At that stage her jeans, though lower than they would be if they had been done up, were not as low as they would have been had they been pulled down.

39. [45]

    Bree’s evidence was that the complainant looked down when she got up and was a bit confused but pulled her jeans up.

40. [46]

    On being woken, the complainant realised that she was still drunk. She recalled Bree telling her that she had to get up to go to work. She asked Bree where her shoes were and Bree handed them to her and told her to put them on. The complainant remembered getting up, pulling up her jeans and going outside to Bree’s car. At that time she was not particularly aware of the state or position of her underwear. She could not recall whether she had undone the button and the zipper before lying on the couch the night before.

41. [47]

    According to Bree, when she and the complainant left on Sunday morning, the blanket which had covered the appellant and the complainant remained on the couch, crumpled up. It was orange and black with an animal print.

42. [48]

    Tom’s evidence was that he was woken by the sound of Bree arriving and coming through the side gate and in through the back door. He heard her say to the complainant, “Come on, you’ve got to get up. You’ve got to go to work.” Tom heard the complainant and Bree open the front door. At that time, Stacy got up to go to the bathroom or get a glass of water and they left. As far as Tom was aware, after they had left, the people remaining in the house were himself, Stacy, Ash and the appellant.

43. [49]

    Stacy’s evidence was that in the morning she could hear the complainant’s friend yelling to wake her up to take her to work. When she and Tom left to have coffee, the appellant was still on the couch.

44. [50]

    At some point, Tom recalled the appellant standing up and asking Ash if he could go and lie down in his bed. Tom and Stacy left to get food and by the time they returned, the appellant had left.

45. [51]

    Ash’s evidence was that, while he was still in his bedroom, he heard a female voice say, “Come on, get up, get up, you’re going to be late for work.” Soon after hearing that, Ash got up and went outside to the back garage to have a cigarette as he does not smoke inside. After he had finished his cigarette, he returned to his bedroom and closed the door. The appellant came to the bedroom door and told Ash that he had had a shocking sleep and asked if he could sleep in Ash’s bed instead of on the “uncomfortable lounge”. Ash agreed and left his room so that the appellant could sleep there.

46. [52]

    Ash’s evidence was that he accompanied Tom to the local Yamba market where they stayed for about an hour. After they returned, Ash saw Tom open the door to Ash’s bedroom to see whether the appellant was still asleep, which he was. About half an hour later, the appellant got up. At about 10.30am or 11am that morning, the appellant’s partner, Amelia, came to collect him.

47. [53]

    When the complainant was in Bree’s car, being driven home, she noticed that her G-string underwear was causing an indentation on her right thigh; whereas it would normally sit on her hip. The complainant’s evidence was that she asked Bree why her undies were down, to which Bree responded, “I don’t know.” In cross-examination, the complainant said that as soon as she saw the indent of her underwear pulled down her leg, she remembered what had happened the night before (in terms of sexual assault). She agreed that this was inconsistent with what she had said in her statement to police given on 18 July 2018 (set out below).

48. [54]

    The complainant explained in cross-examination that there was a distinction between her jeans being undone (which she might have done herself) and her G-string being down against her thigh as the latter was out of the ordinary.

49. [55]

    Bree’s evidence was that they did not converse on the way back apart from her asking the complainant how she was feeling and the complainant responding, “I feel awful, oh my god”. Bree observed that the complainant was still drunk, had “droopy eyes”, was “slouchy” and had been woken from what appeared to have been a deep sleep.

50. [56]

    As soon as Bree took the complainant home, the complainant went to sleep for an hour. Bree woke her in time for her to have a shower and dropped her at the store where she worked on Sundays. The complainant’s car was still parked in town from the night before. The complainant’s evidence was that she usually started at about 9.30am or 9.45am as the shop opened at 10am. That day she worked from 10am until 2pm.

51. [57]

    The complainant’s evidence was that as she sobered up in the course of the four hours at work she was thinking about what had happened and trying to tell herself that it had not happened because she did not want to be a victim and did not want to accept that it had happened. When she went to the bathroom during her shift, she noticed that the skin around her genitals was quite tender and raw and it was uncomfortable for her to go to the toilet. The complainant assessed that her intoxication had worn off by about 11am or 11.30am that Sunday morning.

52. [58]

    After she had finished her shift, the complainant picked up her car (which had remained parked where she put it before she began work at the restaurant the previous night) and picked up her friend Jack. She drove him around the beaches in the area for about 10-15 minutes. She elaborated in cross-examination that she had driven from her work to Whiting and Turners Beach and then gone up the hill past Main Beach and from there down to Convent Beach and then around to Pippi Beach. While they were driving she told Jack that she had gone to Tom’s the previous night and thought that one of the guys there had tried to sleep with her. She elaborated by saying that she woke up to someone trying to do things to her. She agreed that Jack was the first person to whom she had said that something had happened to her the previous night. Jack said he would try to find out whether anyone was “claiming” to have had done it. The complainant wanted to see if anyone was “claiming it” or “boasting about it”.

53. [59]

    The complainant’s evidence was that she did not tell Jack the details of what she remembered had occurred the previous night because she did not want to admit to herself that it had actually happened.

54. [60]

    In cross-examination, the complainant said that she was not “forthright in all of the information” she gave to Jack because she was not ready to speak to anyone directly about it. It was put to her in cross-examination that they had taken Jack’s dog for a walk along the beach. The complainant did not recall whether this had occurred and confirmed her recollection that her discussion with Jack had taken place in her car and not on the beach. She denied that she told Jack that she was forced into doing something that she did not want to do and accepted that “someone just helped themselves while [the complainant] was so drunk to be helpless”. She denied in cross-examination that she had, after speaking to Jack about what had occurred, burst into tears and been unable to speak for 45 minutes. She also denied that she and Jack had walked along the beach for two hours.

55. [61]

    Jack’s evidence was that the complainant had rung him and asked him to go to the beach. He said that he took his dog with them. On that occasion, the complainant was “not herself”. When he asked her what was wrong she said that she got forced into doing something and told him that someone had raped her at Tom’s place. Jack said that he had been there with her at Tom’s place the week before the night in question (which is inconsistent with the complainant’s evidence about the length of time she spent in Thailand). He also said that he was not there that night (23-24 June 2018) as he had stayed at home. Jack had not met the appellant until the complainant pointed him out at the Pacific Hotel (on 30 June 2018). Jack agreed that in his statement to police, made in July 2018, he had said that he had been at the beach with the complainant for two hours before taking her back to her place.

56. [62]

    While they were at the beach and over the next couple of days, Jack asked the complainant to tell him what had happened but whenever he raised the topic she became “really, really upset” and broke down.

57. [63]

    The complainant did not see Bree again until the following Saturday (30 June 2018). The complainant had taken the night off work to attend a party at a restaurant to celebrate the birthday of one of her friends. At the complainant’s invitation, Bree joined them when she finished work on Saturday night. Jack and Jazz, a friend, were also there.

58. [64]

    After Bree arrived, the complainant went outside with her to have a cigarette and a drink. According to the complainant, Jack was also with them and within earshot. The complainant realised that there were “so many things” she did not remember from the previous Saturday night and wanted to “piece together what had happened after [she] had no memory.” This was the first time she had had a discussion with Bree about what had happened on the night of 23-24 June 2018. When the complainant asked Bree the name of the older man who was present, Bree responded by giving the appellant’s name. The complainant wanted to know his name because, as far as she could recall, there were only three men there: Tom, Nick and the older man (the appellant). The complainant’s evidence was that once Bree gave the appellant’s name, the complainant broke down and went to the bathroom. Bree followed her. The complainant told her that she had woken up to a man doing things to her at the party and she did not want to believe that it had actually happened. She explained in cross-examination that Bree’s vocalisation of the appellant’s name “made it outside myself because it had been verbalised by someone else”. She described Bree’s articulation of his name as being “the tipping point for emotions that I was trying to contain within myself”.

59. [65]

    Bree’s evidence was that after she arrived at the restaurant that night, she got a drink and the complainant asked her to go outside to have a cigarette. They sat down together. As far as Bree could recall there was no one else present. Bree initially said that she was not aware that the complainant had told anyone else about the events of the previous Saturday night. Bree said that subsequently, while they were smoking, the complainant had told her that she had told Jack about it and that that was why she was telling Bree.

60. [66]

    The complainant asked Bree whether, when she woke her up at Tom’s place, she noticed that her pants were down. Bree said that she had. According to Bree, the complainant told her that her vagina had felt sore. She asked Bree who had been behind her and Bree had named the appellant. As soon as Bree said his name, the complainant started to cry and ran off to the bathroom.

61. [67]

    Bree followed the complainant to the bathroom. Jazz also came into the bathroom to see if everything was all right. Bree told her that they were just having a chat and Jazz left. The complainant then told Bree that she remembered pressure on her body, having felt someone on top of her and someone saying “let me in” repeatedly.

62. [68]

    According to Bree’s evidence, they had gone to the Pacific Hotel after the birthday celebration and the complainant had said that she had seen the appellant from a distance. As Bree could not remember what he looked like, she did not see him herself. In cross-examination, she agreed that they might have gone to the Pacific Hotel the week later. Other evidence indicated that the appellant was seen at the Pacific Hotel on 7 July 2018 at a time when the complainant also attended the hotel (see below).

63. [69]

    At some time after 24 June 2018 but before the complainant made a statement to police (see below), she received several Facebook messages from the appellant’s partner whom the complainant recognised from the local sushi shop. The messages contained accusations that the complainant was lying, regretted it, had been drunk and did not know what had happened. She received further messages from the appellant’s partner after she had reported the matter to police.

64. [70]

    On Saturday 7 July 2018 the complainant met Bree after work and went to the Pacific Hotel. As they approached the security guard, Jack came towards them and told them that the appellant was there. The complainant became upset and approached Matt, one of the security guards whom she knew personally, and asked if the appellant could be removed from the premises. She explained to Matt what the appellant had done to her, which led to Kahn, the manager, and Matt removing the appellant from the hotel. As a result of encouragement from Matt and Kahn, the complainant reported the matter to the police that night by leaving a message. According to Senior Constable Lawler’s COPS narrative, the complainant had contacted police on 7 July 2018 “intoxicated while at the Pacific Hotel” when she had seen the POI [person of interest (the appellant)] at the hotel and approached the security to kick him out. He also recorded, as a result of information he had obtained from Senior Constable De La Roche:

65. [71]

    In cross-examination, Bree accepted that she had said in her first statement, “She [the complainant] told him [Matt] what she thought had happened to her”. Bree added in evidence that two weeks after the event:

66. [72]

    According to Bree, she and the complainant continued to discuss the matter for about another week after the birthday party. The complainant told her that she wanted to go to the police but did not want to waste their time. Bree encouraged her to report it and the complainant was comfortable that she should speak up. According to Bree’s evidence:

67. [73]

    Jack’s evidence about this occasion was that when he arrived at the Pacific Hotel one Saturday night he recognised the appellant’s partner, whom he knew as she worked at the takeaway shop owned by the parents of one of his friends. Jack went to the bar and bought a beer and went to the “pokie room” and was subsequently told that the appellant was kicked out of the hotel shortly afterwards, as a result of the allegation made by the complainant. I note that Jack said that this occurred a week after Tom’s party at which the incident had occurred, although other witnesses said that it had taken place a fortnight later, on 7 July 2018.

68. [74]

    According to Tom, the complainant and Bree contacted him on the evening of Sunday 1 July 2018 and asked if they could visit. He told them that he did not really want them to visit but they said that they really needed to tell him something and he agreed that they could come. Tom’s evidence was:

69. [75]

    Tom’s evidence was that the complainant and Bree had told him that they were not going to the police and were not going to press charges. According to Tom, the complainant and Bree left shortly after telling him this.

70. [76]

    Ash gave evidence that one evening when he got home from work, he asked Tom how his day was, to which Tom responded that he was highly stressed. Tom proceeded to tell Ash what the complainant and Bree had told him the appellant had done to the complainant on the night of the party. Ash’s response, as he explained in chief was:

71. [77]

    Tom said that he became aware that the police were investigating the matter on the Monday after the complainant and Bree had visited him when he was contacted by police. He had not heard from Bree or the complainant in the interim. In these circumstances, it would appear that Tom was mistaken about the date when the complainant and Bree visited him and that the visit must have been at a later date. When Tom was cross-examined about this and told that Senior Constable Lawler rang him on 11 July 2018, he accepted that the complainant and Bree might have visited him on Sunday 8 July 2018, although he could not be sure.

72. [78]

    The following Wednesday, 11 July 2018, at about 1pm, Senior Constable Lawler, whom the complainant already knew, returned her call. He knew her because she used to work in a bank and had contact with police through a number of alleged frauds on the bank. He described her as sounding “upset and emotional on the phone”.

73. [79]

    That afternoon, at about 3pm, he came to her house where she made an initial report to him in the presence of one of her friends, Sharon. In cross-examination, Senior Constable Lawler accepted that she had said on this occasion, “So even if I tell you everything I’m still unsure if I want all this to go to Court and stuff. I don’t have to.” He asked her for the jeans and underwear that she had been wearing. She confirmed that she had washed the jeans a number of times but had not yet washed the G-string that she had worn on the night of 23-24 June 2018. Senior Constable Lawler confirmed that he had included in his statement that the complainant had told him that when she woke up and found her underwear and pants down, “I thought this was odd but I was still a bit hung over and confused about the night.” He asked her whether she had said anything to Bree and she had said, “Not at this time as I did not know myself what happened. You know, when you are hung over and the night comes back to you slowly”.

74. [80]

    Senior Constable Lawler’s evidence was that later on 11 July 2018, he contacted Tom and proposed that he come to the residence to collect the blanket. He concluded that Tom knew which blanket he was talking about. Tom said that he would prefer that the police were not seen at his house and offered to drop the blanket at the Yamba Police Station. Senior Constable Lawler said that he was not sure whether that would be all right because of contamination issues but Tom was “very insistent that he did not want police in his house”.

75. [81]

    After this conversation, Senior Constable Lawler rang Bree and told her that detectives from the Grafton Police Station would contact her later that evening or on the following day.

76. [82]

    Detective Ware rang the complainant at 6.35pm that evening and spoke to her about what had happened. He later took statements from her, the first of which was taken on Wednesday 18 July 2018.

77. [83]

    Senior Constable Lawler then drove back to the station and waited for Tom to deliver the blanket. About half an hour later, he called Tom who told him that he had looked through the house and could not find the blanket. Senior Constable Lawler gave the following evidence about what occurred next:

78. [84]

    Tom’s evidence was he first became aware that the police were investigating the matter when Senior Constable Lawler telephoned him and asked him for the blanket that the complainant had been wrapped in. Tom said that he would look for it and bring it down to him as soon as possible. According to Tom, the following occurred after the phone call:

79. [85]

    Tom’s evidence about the appellant’s conduct regarding the blanket was relied on by the Crown not only to prove count 5 (that the appellant had done an act with the intention of perverting the course of justice) but also to establish that the appellant evinced a consciousness of guilt in respect of counts 1-4.

80. [86]

    Tom confirmed that he had taken the blanket to his van, intending to take it to the police station, and had called the appellant from his van. Tom explained why he had given the blanket to the appellant and lied to the police about not being able to find it, as follows:

81. [87]

    Tom explained that the appellant did karate, and understood him to be a “black belt”. He did not answer when the appellant called him because he was “really upset and really angry and scared that [he’d] been put in [that] position.” Subsequently, they went fishing but did not speak about what had happened.

82. [88]

    In cross-examination, Tom said that when the appellant arrived in his car, one of them said to the other “Dolphin Park” or “follow me” and they had both driven to Dolphin Park. Tom’s evidence was that he got out of his van and “chucked the blanket in [the appellant’s] car” and said to him: “I don’t want to talk to you, I don’t want to see you right now. This is fucking – this is out of control, this is stupid.”

83. [89]

    Tom made a statement to police on 26 July 2018. In evidence, he confirmed that the statement included the following:

84. [90]

    Tom agreed, when cross-examined about paragraphs 9 and 10 of his statement, that Bree, the complainant and Jack would have arrived at the party on 23 June 2018 before midnight.

85. [91]

    Tom explained that although he had not said, in paragraph 21 of his statement, that the complainant had come with Bree to his place on the Sunday, she had come with her, which meant that the communication about there having been an incident occurred with the three of them, Tom, the complainant and Bree, present.

86. [92]

    In cross-examination about paragraph 22 of his statement, Tom accepted that he was contacted by Senior Constable Lawler about the blanket on 11 July 2018. After he had given the blanket to the appellant he rang Senior Constable Lawler and told him that he could not find it. He did not recall contacting either Bree or Stacy after that, although his call records indicated that within six minutes of Senior Constable Lawler calling, he had sent a text to Stacy and, two minutes later, he had rung Bree and spoken to her for nearly three and a half minutes. Subsequently in his cross-examination, Tom remembered that he had called Bree, after the request from Senior Constable Lawler but before seeing the appellant, to determine which blanket it had been, to which Bree responded that it had been “the leopard one”.

87. [93]

    When cross-examined about paragraph 22, Tom admitted that he had lied to police and had known at the time that the statement was false. He said:

88. [94]

    Tom made a further statement to police on 19 September 2019 in which he retracted what he had said in paragraph 22 of his earlier statement. He said in the further statement:

89. [95]

    Tom was cross-examined to the effect that this statement, too, was false since he had admitted that he had called Bree to ascertain which blanket had been used to cover the complainant. He did not accept that the statement in paragraph 6 of his further statement was a lie and explained that he had no recollection of the conversation with Bree when he made the further statement. He agreed with the proposition put to him by the cross-examiner: “At the very least you got it totally wrong, didn’t you?”.

90. [96]

    Tom also said in his further statement:

91. [97]

    Tom accepted that it was a lie that he had an anxiety attack when he was reversing out of his driveway because he had actually been in a state of high anxiety since he was first contacted by Senior Constable Lawler.

92. [98]

    The complainant made a statement to police on 18 July 2018 which included the following:

93. [99]

    The complainant also provided a buccal swab for the purposes of DNA testing on 18 July 2018.

94. [100]

    The complainant was cross-examined extensively about her statement to police. She accepted in cross-examination that when she woke up on the morning of Sunday 24 June 2018 she had “zero recollection” of any kind of indecent or sexual act that took place during the night and explained that she had not been “trying to recollect anything at that point.” At the time she did not think anything about the button and zip of her jeans being undone. She agreed in cross-examination that when she woke up her jeans had been pulled up again, far enough so that a person would not be able to access her genitals. She also agreed that she had no idea of how it came to be that her jeans had gone from being pulled down to being pulled back up again.

95. [101]

    The complainant accepted in cross-examination that her evidence in chief (that within minutes of waking she realised that she had been sexually assaulted) was inconsistent with paragraph 24 of her statement. She rejected the proposition that her recollection of the events of the night was fresher and clearer, and better when she made her statement on 18 July 2018, than on 5 May 2020 when she gave her evidence. Subsequently in her cross-examination, the complainant said that she did not have the “clear thought” that she had been sexually assaulted by the appellant the night before, when she was sitting in the car with Bree the following morning.

96. [102]

    Once Bree became aware that the complainant was going to, or had, reported the matter to police, but before Bree had given a statement to police, she contacted Tom and told him that the complainant thought that she could possibly have been sexually assaulted that night. She said that she told him that she was letting him know in case he got a call from the police and that she was giving him a “heads up” because it had occurred at his house. Bree confirmed in cross-examination that “[the complainant] thinks she could have been assaulted at the party” was an accurate summary of what the complainant had told her at that time and that, by the time Bree called Tom, she still understood that the complainant was not sure that it had happened at all.

97. [103]

    Bree’s evidence is to be contrasted with Tom’s evidence on the topic, which is set out below.

98. [104]

    Subsequently, according to Bree’s evidence, Tom phoned Bree and told her that the police had rung him and asked him to “bring down the blanket to the police station to give his evidence”. Tom asked Bree which blanket it was and she described the blanket as the “orange, black animal print one”. According to Bree, Tom responded, "Yep, I know what blanket you're talking about. I’m going to jump on my push bike now and I’ll head down to the police station and drop it off.”

99. [105]

    Bree’s evidence was that not long afterwards, possibly about half an hour later, Bree and Tom spoke again on the phone about the blanket, as follows:

100. [106]

     According to Bree, she told him that it would be great if he could take the blanket to the police station but that he should do whatever he felt comfortable doing. She also apologised to him that he “had become involved in this”.

101. [107]

     Ash saw the appellant some time later and asked him what happened that night. The appellant told Ash that he had been set up.

102. [108]

     On 26 July 2018 Ash was interviewed by police and made a statement. Prior to this time, he had become aware that the police were investigating the matter and had come to Tom’s house to look at the premises. Ash did not recall informing the appellant that the police were investigating the matter. According to Detective Ware, both Ash and Tom were present when they came to the premises.

103. [109]

     Ash gave evidence that the appellant had emailed him to tell him that his DNA had not been found. Ash responded, “That’s awesome news, mate”, or words to similar effect. The appellant also sent him statements of witnesses, although he was not expecting to see them.

104. [110]

     In September 2019, Ash was present with Tom when he rang police to inform them what had happened with the blanket and that the version he had given in his initial statement on 26 July 2018 was not true.

105. [111]

     Ash made a second statement on 19 September 2019 in which he said:

106. [112]

     In cross-examination, Ash accepted that he must have given his email address to the appellant. He gave evidence in chief that he had tried to piece together what had happened. He was cross-examined about why he had done his “amateur detective work” when he knew neither the complainant nor Bree and had only met the appellant two months previously. His explanation included the following:

107. [113]

     Ash described himself as “unbiased to both parties”. However, he accepted that he had called Detective Ware in July 2018 and swore at him. According to Ash, the officer had hung up on him. Subsequently, Ash sent the officer a text in which he said:

108. [114]

     In cross-examination, Ash explained that he was intoxicated when he sent the text and that he had felt as if he was being heckled because “for the last 22 months I’ve had to have this whole thing on my mind because I have to show up to places like this [the courtroom]”. The following exchanges took place in cross-examination:

109. [115]

     The appellant was arrested at the Grafton Police Station on 31 July 2018, having attended there with his partner. He exercised his right to silence by refusing to participate in a recorded interview.

110. [116]

     Clayton Walton, an employee of the Forensic Biology DNA Laboratory of NSW Health Pathology Forensic and Analytic Science Service in Lidcombe, gave expert evidence. On 1 August 2018 he received two tape lifts which he was told came from the left and right side of the G-string the complainant was wearing at the relevant time. He also received buccal swabs taken from the complainant and the appellant, which he analysed.

111. [117]

     Mr Walton gave an expert certificate pursuant to s 177 of the Evidence Act in which he reported that the DNA recovered from the left side of the underwear came from at least two individuals. The major contributor was the complainant. The DNA from the minor contributor was not suitable for comparison due to the low level. Further DNA testing using the Y filter (which detects the Y chromosome, which is present in males but not in females) revealed a mixed DNA profile. The major contributor was someone other than the appellant. The DNA from the minor contributor was not suitable for comparison due to the low level.

112. [118]

     Mr Walton reported, in relation to samples taken from the right side of the underwear, that the mixture in one sample related to at least three individuals. The complainant was the major contributor. The DNA from the minor contributors was not suitable for comparison due to the low level. Further testing using the Y filter revealed a mixed DNA profile. A mixed DNA profile originating from more than one male individual was recovered which was not suitable for comparison due to the low level and complexity. There were two or three males present in the sample, in roughly equal amounts, which made interpretation “impossible”.

113. [119]

     In cross-examination, Mr Walton agreed that, if he had the DNA profiles of other males, it would have been possible to make a comparison between that male and the sample. Mr Walton confirmed that a person could touch an item and not leave any DNA.

114. [120]

     Detective Ware agreed that he had not collected DNA samples from any male other than the appellant. His evidence was that, unless someone consents, there is no legal basis upon which a sample of the person’s DNA can be taken.

115. [121]

     I note for completeness that Part 5 of the Crimes (Forensic Procedures) Act 2000 (NSW) empowers an “authorised officer” to make an order for DNA to be taken from a person who is reasonably suspected to have committed the offence if there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence. Mr Lawrence, who appeared for the appellant in this Court, confirmed that he did not contend that there was any basis for the Crown to have applied for such an order on the basis that the other males were suspects but relied on the circumstance that Detective Ware had not sought consent from any of the other males who were at Tom’s house at the same time as the complainant to obtain a DNA sample.

116. [122]

     Detective Ware obtained the phone numbers of all prosecution witnesses. He obtained call charge records in respect of Tom’s mobile account for the period between 10 and 12 July 2018. Photographs of Tom’s house and surrounds were also tendered.

117. [123]

     It was an agreed fact that the appellant had no criminal record and had not previously been charged with a sexual assault offence.

118. [124]

     The defence case was, in substance, that the Crown could not prove to the requisite standard that the complainant had actually been sexually assaulted (counts 1-4). Reliance was placed on the complainant’s state of intoxication; her uncertainty as to what, if anything, had occurred; her inconsistencies in accounts; and the real potential for reconstruction. Further, the defence case was that, even if a sexual assault had occurred, the Crown could not exclude the hypothesis that it was some other male who had been the perpetrator and therefore could not prove beyond reasonable doubt that it was the appellant. The appellant also relied on character evidence.

119. [125]

     Ms Toni-Anne Sharpe, who employed the appellant’s partner in a takeaway sushi business in Yamba, gave evidence of the appellant’s good character. She had found him to be reserved, respectful and had never seen him behave in a sexually inappropriate way. She gave evidence adverse to the complainant’s friend, Jack, as to his excessive alcohol consumption and drug-taking. In cross-examination she agreed that she had never seen the appellant when he was “extremely drunk” and that he had always been with his partner whenever she saw him in social situations.

120. [126]

     Ms Hardman, Ms Sharpe’s daughter, who also worked with the appellant’s partner at the takeaway sushi business, gave similar evidence of the character of the appellant. She, too, disparaged Jack for having been under the influence of alcohol on an unspecified occasion.

121. [127]

     Both Dr Katherine Brown and Dr Robert Wines gave evidence in the form of expert certificates pursuant to s 177 of the Evidence Act. Neither was cross-examined. Both gave evidence that it would not be uncommon for a man of the appellant’s age, 49 years, to have difficulty in obtaining and maintaining an erection and that the difficulty would be exacerbated by the effects of alcohol.

122. [128]

     In the present case, the trial judge circulated a draft document which contained the directions which his Honour proposed to give (which was marked MFI 1) and invited the parties to address him on its contents. It is convenient to refer to the document and the argument about the directions by reference to the particular grounds, rather than to summarise it here.

The reasons of the trial judge

1. [129]

   The reasons of the trial judge are extensive. They will be referred to by reference to the particular grounds as set out below and, where necessary, extracted.

Ground 1: alleged failure to give a Murray direction in respect of the complainant’s evidence and to give reasons for not giving a Murray direction

1. [130]

   The trial judge’s draft direction in relation to the complainant’s evidence was as follows:

2. [131]

   Ultimately, the trial judge directed himself in accordance with the draft set out above. The trial judge’s draft also included a heading which said simply “Section 65”. Two question marks appeared under the heading (this is relevant to ground 2).

3. [132]

   It is useful, before turning to the argument before the trial judge about what direction ought be given, to set out what a “Murray direction” is and what changes have been made to that direction as a consequence of statutory amendment and subsequent judicial consideration. The so-called Murray direction derives from R v Murray (1987) 11 NSWLR 12 where Lee J said at 19E:

4. [133]

   For the purposes of addressing ground 1, I adopt Simpson J’s articulation in Ewen v R [2015] NSWCCA 117 at [104] (Basten JA and Davies J agreeing) of the common understanding of what constitutes a Murray direction:

5. [134]

   Section 294AA was inserted into Chapter 6, Part 5 of the Criminal Procedure Act (which was entitled “Evidence in Sexual Offence Proceedings”) by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 (NSW). The section, which became operative on 1 January 2007, provides:

6. [135]

   The inconsistency between the general statement in Murray, in so far as it applied to sexual offence proceedings, and the prohibition in s 294AA(2) was addressed by this Court in Ewen v R. Simpson J said that the effect of s 294AA was to require an additional factor to be present in the complainant’s uncorroborated account before the direction ought be given. Her Honour concluded at [140] that, if this were not required, a Murray direction given in a sexual offence case merely because of the absence of corroboration would be tantamount to a direction that it would be dangerous to convict on the uncorroborated evidence of the complainant and that this would infringe the prohibition in s 294AA(2).

7. [136]

   In the present case, the following debate ensued before the trial judge, which is relevant to grounds 1 and 2.

8. [137]

   Mr Cochrane, trial counsel for the appellant, when addressing on count 5, said, in relation to Tom’s evidence:

9. [138]

   At the conclusion of his address, Mr Cochrane returned to the issue of directions. He also sought a warning under s 116 or s 165 of the Evidence Act in relation to the complainant’s evidence as to identification of the voice (as corresponding with the voice she had heard at the spoken word event in 2016 and therefore as being the appellant’s). The following exchange then ensued:

10. [139]

    Mr Lawrence contended that Mr Cochrane pressed his claim for a Murray direction in respect of the complainant, and argued that the direction given was deficient. He sought to read, in support of ground 1, an affidavit of trial counsel, Ben Cochrane affirmed 1 February 2021. The Crown objected to the affidavit on the ground of relevance. The parties agreed that the admissibility of the affidavit could be determined in this Court’s reasons for judgment. In his affidavit, trial counsel deposed as to his recollection as to what occurred in his closing address and the debate between Bar and Bench as to the directions which his Honour ought give himself. He also deposed that his impression was that the trial judge had acceded to his request for a Murray direction in respect of the complainant’s evidence. He confirmed that it had remained his intention to press for such a direction. I am not persuaded that Mr Cochrane’s affidavit is relevant to the issues before this Court and consider that it ought, on that basis, be rejected. The subjective belief of counsel is not relevant in a case such as the present, where no allegation of incompetence of counsel is made. What is germane is how the trial was conducted. This is to be judged from an objective viewpoint, on the basis of the transcript (to the reliability of which no challenge was made) and any other documents identified, such as draft directions.

11. [140]

    In my view, a fair, objective reading of the transcript extracted above, is that Mr Cochrane agreed that a Murray direction per se was inapposite for the complainant’s evidence because of s 294AA, but he pressed for such a direction in respect of Tom’s evidence in support of count 5. I do not consider that Mr Cochrane’s final “yes”, as recorded in the transcript, can be read as being other than an agreement with what his Honour was putting and an appreciation of the effect of s 294AA as construed in Ewen on what was said in Murray.

12. [141]

    In my view, a fair reading of the submissions made by the parties as recorded in the trial transcript leads, relevantly, to the following conclusions:

    1. (1)

       Mr Cochrane sought a Murray direction in respect of Tom’s evidence on count 5;

    2. (2)

       Mr Cochrane initially sought a Murray direction in respect of the complainant’s evidence generally on the grounds of her intoxication and the inconsistencies between her versions;

    3. (3)

       Mr Cochrane also sought a s 165 warning in respect of that part of the complainant’s evidence relating to the voice identification of the appellant;

    4. (4)

       The Crown pointed out that a Murray direction was no longer appropriate in relation to the complainant’s evidence because of Ewen;

    5. (5)

       The trial judge accepted that he had misspoken when calling the draft direction in paragraphs 56-58 of the draft a Murray direction, in light of Ewen;

    6. (6)

       Mr Cochrane agreed that he had sought a Murray direction in respect of Tom and accepted that he could not obtain a Murray direction in relation to the complainant or at least could not obtain a direction beyond that which appeared in the trial judge’s draft.

13. [142]

    The appellant is bound by the conduct of his counsel: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [74] (McHugh J); R v Birks (1990) 19 NSWLR 677 at 684 (Gleeson CJ, McInerney J agreeing). However, even if I were satisfied that Mr Cochrane had pressed his application for a Murray direction, I consider that he obtained such a direction in any event. The trial judge’s reasons record that his Honour gave himself a “reliability warning” in the terms set out in paragraphs 56-58 of the draft but omitted any specific reference to the complainant’s evidence being uncorroborated (on the grounds of the prohibition in s 294AA). In effect, the direction given was a Murray direction.

14. [143]

    Although there was no reference to the complainant’s evidence being uncorroborated, his Honour correctly directed himself that he had to be satisfied beyond reasonable doubt that the complainant was an honest and reliable witness whose evidence was “accurate in vital respects.” Mr Lawrence contended that his Honour had erred by not emphasising the care that must be taken with such evidence and contended that a formulation such as “great care”, or “scrutiny” was required.

15. [144]

    I reject this submission. As long as the substance of the direction is given, it is not necessary for a trial judge to adopt a specified form of words: Kaifoto v R [2006] NSWCCA 186 at [72] (Grove J, Simpson and James JJ agreeing). Indeed, as Grove J observed at [71], “the incantation ‘scrutinize with great care’ was not used at trial in Murray and the appeal in that case was in fact dismissed.”

16. [145]

    Further, Mr Lawrence contended that his Honour was obliged, when directing himself as to the reliability of the complainant, to specifically address the two matters which the appellant contended led to her being unreliable: her intoxication and the possibility that she had reconstructed her memory. There are two answers to this submission. First, Mr Cochrane did not seek a direction in such terms. Although he submitted that the complainant was neither credible nor reliable because of her intoxication and the inconsistencies between her versions over time and to the complaint witnesses, he did not suggest to the trial judge that these matters ought be included in the directions. Second, Mr Cochrane did not raise potential reconstruction as a matter which ought be addressed specifically in the directions, as opposed to the reasons for decision.

17. [146]

    For these reasons, ground 1 has not been made out. The trial judge gave a Murray direction, without breaching the prohibition in s 294AA. There was accordingly no failure on his Honour’s part in giving the direction or in explaining why he had not given it.

Ground 2: alleged failure to give a direction pursuant to s 165 of the Evidence Act 1995 (NSW) in respect of the complainant’s evidence

1. [147]

   In addressing ground 2, it is useful to set out the obligations of trial judges when conducting a trial by judge alone. Section 133 of the Criminal Procedure Act provides:

2. [148]

   A degree of artificiality inevitably arises from the terms of s 133. The following example is sufficient to illustrate the point. In a case where the Crown relies on the evidence of an accomplice, a warning under s 165 of the Evidence Act must usually be given to a jury because a judge is thought to have a particular advantage over a jury in appreciating that the evidence of someone who is criminally concerned in the event giving rise to the proceeding may be unreliable. Where the trial is by judge alone, the judge is required to give him or herself the warning that would have been given to the jury, had the trial been by jury, although, by definition, the judge does not need the warning because the judge is taken to have the superior appreciation of the unreliability of certain types of evidence to that of a jury. However, the combined effect of ss 133(2) and (3) requires the warning to be given in a trial by judge alone and recorded in the trial judge’s reasons.

3. [149]

   The benefits of the requirement in s 133 are plain. In a trial by jury, an accused person becomes aware of all directions and warnings given to a jury, since these are given in the course of the trial, including in the summing up. In a trial by judge alone, the accused person becomes aware, through the reasons for decision, what warnings and directions have been given to the tribunal of fact.

4. [150]

   In a trial by jury forewarning of proposed directions and warnings takes place in the absence of the jury before the conclusion of the summing up. In a trial by judge alone, counsel may be asked to comment on the judge’s draft directions (if the judge has prepared them, as the trial judge did in the present case) or propose further directions before the judge reserves his or her decision. The approach taken by the trial judge in the present case of hearing submissions from counsel as to the directions and warnings required to be given before reserving to consider his decision was a conscientious one which served the requirements of procedural fairness to both parties.

5. [151]

   The statutory predecessor to s 133, s 33 of the Criminal Procedure Act, was considered in Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68. Of present relevance, the High Court (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) said at [32]-[33]:

6. [152]

   In the present case, as appears from the transcript extract above with respect to ground 1, the appellant’s trial counsel asked for a warning under s 165 of the Evidence Act on two bases: first, as an alternative to a direction under s 116 of the Evidence Act with respect to the complainant’s evidence as to the voice identification of the appellant; and, secondly, on the basis of the inconsistencies between her statement to police and her evidence.

7. [153]

   As to the first basis, his Honour gave himself a lengthy direction under s 116 as to the complainant’s identification of the appellant by his voice. As a consequence of the warning, his Honour ultimately placed no weight on this part of the complainant’s evidence. It is the second basis which is the subject of ground 2. The trial judge addressed the question in the reasons and said, at [75] as follows:

8. [154]

   The appellant argued, in support of ground 2, that the warning was required because the issue of memory reconstruction was posed squarely by the evidence and was “inextricably linked to the circumstances of the offences, involving a complainant who had an ‘island of memory’ in a sea of alcohol-induced black out.” In oral submissions, Mr Lawrence argued that the process of reconstruction was not one which a jury would necessarily be familiar with and that, accordingly, a warning under s 165 was required. He relied on what Kirby J said at [62] in R v Baartman [2000] NSWCCA 298 (Spigelman CJ and Smart AJ agreeing) as follows:

9. [155]

   One of the difficulties with this challenge is that, as is apparent from the transcript extracted above, the appellant’s trial counsel conceded that whether a s 165 warning was given in the context of the inconsistencies in the complainant’s evidence was a “matter for [the trial judge]”. Mr Cochrane’s ultimate submission that the inconsistencies in the complainant’s evidence “might be [something] that does warrant a warning under 165” was so tentative that it could not be said that the appellant pressed for such a warning, or submitted that it was necessary, although, as his Honour noted, it had been sought.

10. [156]

    There is a further reason why this Court ought not intervene in respect of ground 2. As Kirby J said in R v Baartman at [69]:

11. [157]

    In this Court, Mr Lawrence contended that the basis on which the appellant sought the warning was “this perhaps quite unusual combination of intoxication and the evidence going to the reconstruction hypothesis which in our submission led to a complainant adamant in court that certain things had occurred … [when contrasted with] ... the plenitude of evidence from the complaint witnesses in particular, Bree, but also the officer-in-charge and Jack, that the complainant did not have that degree of certainty that anything had happened, that she was fundamentally unsure, in that week or two after the incident.” However, an analysis of the transcript (extracted above) indicates that this was not the basis on which the warning was sought. At trial, the warning was sought on the expressed basis of the complainant’s inconsistencies. It was not put that the process of a person reconstructing memory from isolated facts warranted a warning under s 165. On this basis, it was open to the trial judge to conclude that no such warning was necessary.

12. [158]

    For these reasons, ground 2 has not been made out.

13. [159]

    I note for completeness that the trial judge gave detailed reasons addressing the matters raised on behalf of the appellant at trial which were said to require a s 165 direction.

Ground 3: alleged failure to properly take into account the DNA evidence

1. [160]

   The DNA evidence was addressed by the trial judge in the following passage:

2. [161]

   His Honour returned to the DNA evidence when expressing his conclusions on the whole of the evidence and said, at [228(6)]:

3. [162]

   The trial judge had already referred to the complainant’s evidence, at [133], about her recollection as to what had occurred:

4. [163]

   The trial judge also referred, at [141], to the complainant’s evidence that when she got into Bree’s car on the Sunday morning, she noticed that her thigh was indented, because the G-string was still down around her right thigh and had not been pulled up when she pulled up her jeans when she got up off the couch in the morning.

5. [164]

   Mr Lawrence argued that the trial judge had, in substance, determined that the DNA evidence was neutral when, on proper analysis, it was favourable to the appellant. He contended that the facts that the appellant was excluded as a contributor in respect of one of the samples and that the samples of other males were found on the complainant’s underwear were exculpatory and supported the hypothesis consistent with innocence (that, if she was sexually assaulted, her assailant was a male other than the appellant). Mr Lawrence’s submission that the trial judge’s summary of the DNA evidence was incorrect because it did not acknowledge that the appellant had been excluded as a contributor to one of the samples must be rejected as it is plain from the reasons extracted above that the trial judge both appreciated and noted that fact.

6. [165]

   Mr Lawrence further submitted that the DNA evidence was a key part of the second way in which the appellant put his case: that he was not the assailant. He submitted that the presence of the DNA of other males, who were not, in the case of one of the samples, the appellant, fortified the hypothesis that another male had sexually assaulted the complainant. He argued that the trial judge had not addressed this contention. He also submitted that the trial judge’s failure to appreciate the gravamen of the DNA evidence resulted in a miscarriage of justice.

7. [166]

   The probative weight of the DNA evidence was a matter for the trial judge as the tribunal of fact. The evidence established that the underwear (G-string) had been in the complainant’s possession from the date of the alleged offence, 24 June 2018, until 11 July 2018, when police recovered it for testing. It had not been washed during this period. The evidence did not establish where it had been kept at the complainant’s premises and whether it had been in contact with any other garment or thing during that period. The evidence was consistent with the possibility that whoever had pulled down the complainant’s jeans had not made contact with the underwear at all as the jeans were close-fitting and pulling down the jeans could have had the effect of pulling down the underwear too. These matters were all explored at trial.

8. [167]

   Further, the DNA evidence had to be taken into account in combination with all of the evidence in the trial, including the evidence of witnesses. His Honour was satisfied on the basis of other evidence that none of the three other males who was at Tom’s house at the relevant time (Tom, Ash and Nick) was the assailant. Tom was excluded because he went to bed with Stacy. Ash was excluded because he went to bed before the others retired and slept through the night and Nick was excluded because he left with Bree. In these circumstances, the DNA evidence became even less probative because the other males who potentially had the opportunity to attack the complainant had been excluded by other evidence. In addition, there was a deal of evidence that implicated the appellant, including that Bree had seen him try to get onto the couch next to the complainant before she left with Nick and had found him asleep next to the complainant on the couch, with his arm on her naked hip on her return later that morning when she came to take the complainant to work. His Honour addressed all of that evidence elsewhere in his reasons. It was not necessary for him to repeat it in the passages specifically directed to the DNA evidence which are set out above.

9. [168]

   For these reasons, ground 3 has not been made out.

Ground 5: alleged error in failing to apply the onus of proof

1. [169]

   As ground 5 is, in some respects, a subset of ground 4, it is convenient to address it before turning to ground 4.

2. [170]

   In substance, the appellant submitted that the trial judge had asked the wrong question. Mr Lawrence alleged that the trial judge had asked whether the complainant’s evidence could be explained in a way that was consistent with the appellant’s guilt, rather than asking the correct question: namely, did the evidence exclude all reasonable hypotheses consistent with innocence.

3. [171]

   The relevant hypotheses consistent with innocence were as follows:

   1. (1)

      the complainant had not been sexually assaulted at all and her purported recollection was no more than a reconstruction; and

   2. (2)

      a male other than the appellant had sexually assaulted the complainant.

4. [172]

   Whether hypothesis (1) could be excluded substantially turned on the trial judge’s assessment of the complainant’s evidence as to what had occurred in light of the evidence of others as to what she had said to them about the incident. Hypothesis (2) did not particularly turn on the complainant’s evidence because, as his Honour said at [185], the case as to the identity of the assailant was a circumstantial one, on the basis that it was not suggested that the complainant saw her assailant or that she physically identified him (other than by process of elimination).

5. [173]

   Mr Lawrence highlighted the following passage from [186] of his Honour’s reasons and submitted that it revealed the error complained of in ground 5:

6. [174]

   Mr Lawrence also relied on the following passage from [191]:

7. [175]

   It is important when reasons are challenged or alleged to contain error, to read the reasons fairly as a whole. The following paragraphs indicate his Honour’s findings relating to whether there was a sexual assault at all:

8. [176]

   His Honour rejected both aspects of the defence case in his conclusion at [231]:

9. [177]

   In addressing the first aspect of the defence case at trial (that the complainant was not sexually assaulted), his Honour found that the hypothesis consistent with innocence (that the complainant did not actually recall what had happened but had simply reconstructed it from insufficient, isolated facts) had been excluded beyond reasonable doubt, as is evident from the passages set out above. His Honour’s conclusion at [231] was legally correct and indicated that his Honour was aware of, and applied, the requisite standard of proof.

10. [178]

    Mr Lawrence said that these passages were not sufficient to overcome the basis for ground 5 and sought to draw an analogy between the present case and Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394. He relied on what the Court said at [46]:

11. [179]

    I am not persuaded that the unusual facts of Pell v The Queen provide any assistance by analogy to the present case. In the present case there was no substantial evidence inconsistent with the evidence of the complainant. The DNA was more favourable than neutral to the appellant but, as discussed above in relation to ground 3, it was of relatively little probative value. There was nothing that could be regarded as a “solid obstacle to conviction” and nothing inherently implausible about the complainant’s account, particularly having regard to the position in which the appellant was found the following morning when Bree arrived to collect the complainant.

12. [180]

    Although the trial judge used the phrase, “it has not been shown” in [186] in the passage set out above, this does not indicate, in the context of the judgment as a whole, that there was any misapplication of principle or that the principles relating to onus and standard of proof were not correctly applied.

13. [181]

    Although it is usual, when directing a jury in a summing up, to give directions about the Crown’s obligation to exclude every non-fanciful hypothesis consistent with innocence, it is not necessary for a trial judge conducting a judge-alone trial to express findings or conclusions in those terms. A finding that the appellant committed the offences beyond reasonable doubt necessarily incorporates a finding that the hypothesis that no offence was committed and the hypothesis that someone else committed the offences have each been excluded beyond reasonable doubt.

14. [182]

    Without setting out the trial judge’s reasons in full, it is difficult to do justice to the careful way in which his Honour set out and analysed the evidence and applied the law to the task of fact-finding which he was required to perform in the trial by judge alone.

15. [183]

    For these reasons, ground 5 has not been made out.

Ground 4: alleged unreasonable verdict

1. [184]

   The appellant alleged that the trial judge must have had a doubt as to whether the complainant had in fact been sexually assaulted and also as to whether it was the appellant who had sexually assaulted the complainant. In other words, the appellant submitted that the evidence was not reasonably capable of excluding either the hypothesis that the complainant’s evidence of the assault was a reconstruction rather than a recollection or the hypothesis that someone other than the appellant had sexually assaulted her.

2. [185]

   As ground 4 does not involve a question of law alone, it requires leave. However, if it is made out, it would be expected that leave would be granted.

3. [186]

   This Court’s task in addressing ground 4 remains as stated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In M v The Queen at 493, the High Court said that this Court (as the appellate court) must ask itself:

4. [187]

   The High Court also said that, in answering that question:

5. [188]

   Because the appellant was tried by judge alone, the references to the jury in these passages are to be taken to be references to the tribunal of fact, in this case, the trial judge.

6. [189]

   As is apparent from what appears above, the adequacy of the Crown case to support the convictions on counts 1 and 3 was attacked on two bases: first, that the evidence was not sufficient to exclude the hypothesis that the complainant had reconstructed her evidence; and, second, that the evidence was insufficient to exclude the possibility that another male had attacked the complainant.

7. [190]

   Turning to the first hypothesis, it is important, as the High Court said in Pell v The Queen, at [39], to proceed upon the assumption that the tribunal of fact (in this case, the trial judge) assessed the complainant’s evidence to be credible and reliable. The court examines the whole of the evidence before the tribunal of fact to ascertain whether, notwithstanding that assessment, the court is satisfied (because of inconsistencies, discrepancies or other evidence) that the tribunal of fact, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt.

8. [191]

   In substance, the trial judge accepted the complainant’s evidence, including her explanation for initially withholding her recollection that she had been sexually assaulted from Bree, Jack and the police. His Honour accepted that the complainant’s actual recollection of the sexual intercourse had been triggered when she saw the indentation of her G-string on her thigh. His Honour also accepted the complainant’s explanation for the disparity between her evidence and what she had initially told Bree, Jack and the police: namely, that she had initially been reluctant to acknowledge to herself and others that she was a victim of a sexual assault, which should, accordingly, be reported to police and investigated. There is nothing inherently implausible about a victim of a sexual assault not wanting to believe that it has occurred. Indeed, as his Honour found, the complainant’s reaction was an understandable one.

9. [192]

   The fact of a sexual assault having occurred was also supported by the complainant’s state of undress when Bree arrived in the morning and the position of the appellant lying next to her on the couch. Her jeans and underwear had been pulled down over her buttocks and remained in that position. Both garments were not in the position they would have been had the complainant merely undone her jeans button and zip to make herself more comfortable on the couch. It was also supported by the vaginal soreness which his Honour accepted that the complainant experienced when she went to the bathroom after the incident.

10. [193]

    The evidence, in my view, was sufficient to establish that it was open to the trial judge to find that the complainant was the victim of two instances of sexual intercourse without consent: the first involving digital penetration and the second involving penile penetration.

11. [194]

    I turn now to the second basis on which the defence challenged the finding of guilt: the identity of the assailant. The appellant alleged that the hypothesis that another male was the assailant had not been excluded to the requisite standard. I reject this submission. The evidence adduced by the Crown established that at the time Bree left Tom’s house with Nick, there were three men on the premises: Tom, Ash and the appellant. Tom had already gone to his bedroom with Stacy and did not respond to the text Bree had sent him at around 4am before she departed with Nick. Ash, who was tired from working long hours, had gone to bed before the complainant and Bree had arrived. The evidence established that the upstairs part of the house was untenanted and, therefore, vacant and that the other people who had come to the gathering at various stages of the evening had left before the arrival of the complainant and Bree.

12. [195]

    In addition, the trial judge accepted Bree’s evidence that, before she and Nick had left Tom’s house during the night, she had seen the appellant try to lie down on the couch next to the complainant and had told him to find somewhere else to sleep. Further, when Bree returned, the appellant was asleep on the couch next to the complainant with his arm on her naked hip. In order to rouse the complainant, Bree had to wake up the appellant and get him to move. Thus, for at least some time between Bree’s departure between 4am and 4.45am and her return not long after 8am, the appellant was effectively shielding the complainant from a sexual assault by another male. The evidence, when considered as a whole, left the appellant as the only male in the vicinity who (absent fanciful speculation) had the opportunity to commit the offence.

13. [196]

    His Honour was entitled to find that the possibility that the appellant suffered from erectile dysfunction, having regard to his age and alcohol consumption, was inculpatory rather than, as the appellant argued, exculpatory. The complainant’s evidence, which his Honour accepted was that the penile penetration had been partial, was consistent with a perpetrator suffering from erectile dysfunction. Thus, this detail tended to implicate the appellant and, potentially, exculpate the other men in the house, who were considerably younger than the appellant. Further, having regard to the complainant’s description of her assailant as being “heavy”, the appellant’s heavy build also implicated him as Tom and Nick were described as being “slender.”

14. [197]

    In my view, it was open to the trial judge, acting reasonably, to find beyond reasonable doubt that the appellant was the offender. Indeed, I regard the suggestion that any of the other males was the offender to be fanciful in light of the whole of the evidence.

15. [198]

    In the course of the argument, I raised with counsel whether it was open to this Court to take into account Tom’s evidence about the appellant’s demanding the blanket when he was called by police to produce it. This evidence was not accepted by the trial judge, who considered that the cross-examination of Tom by defence counsel was so effective as to make the evidence unreliable. The reason I raised this matter was that, when reading the transcript, I formed a favourable impression of Tom’s credibility and considered that his undoubted anxiety was what caused his unsatisfactory answers, and that he had been telling the truth about the blanket. Although there is no warrant for revisiting count 5, as the appellant was acquitted of that count, this evidence was relevant to the question whether the appellant, in demanding the blanket from Tom, evinced a consciousness of guilt which the tribunal of fact was entitled to weigh in the balance against the appellant (subject to the limitations in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63). This Court, in determining ground 4, is obliged to give “full regard” to the advantages enjoyed by the trial judge. However, such a ground also calls for this Court to independently assess the whole of the evidence, including Tom’s evidence as to what happened to the blanket.

16. [199]

    In the circumstances of the present case, I am satisfied that it was reasonably open to the trial judge to convict the appellant of counts 1 and 3, without regard being had to Tom’s evidence about the blanket. I confirm that, having read the transcript of the evidence and read and considered all of the exhibits, I do not entertain a doubt about the appellant’s guilt, much less one that the trial judge might not have been able to resolve, having regard to his advantage of seeing and hearing the witnesses. I am satisfied that on the whole of the evidence, excluding Tom’s evidence about the blanket, which was not accepted by the trial judge, it was open to the trial judge to be satisfied of the appellant’s guilt beyond reasonable doubt. If I were permitted to take into account that part of Tom’s evidence which was not accepted by the trial judge (as to what occurred following Senior Constable Lawler’s request for the blanket), I would regard that evidence as amounting to a consciousness of guilt on the part of the appellant and that it would be open to a reasonable tribunal of fact to so regard it.

17. [200]

    Accordingly, it is not necessary, for present purposes, to determine the question I raised with counsel as to whether it is open to this Court to come to a different view about the evidence given by Tom about the blanket than that recorded in the trial judge’s reasons.

Proposed orders

1. [201]

   For the reasons given above, I propose the following orders:

   1. (1)

      Reject the affidavit of Ben Cochrane affirmed 1 February 2021 on the ground of relevance.

   2. (2)

      Grant leave to the appellant to appeal.

   3. (3)

      Dismiss the appeal.

   4. (4)

      Pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW), the applicant’s sentence is to recommence on 3 March 2021.

   5. (5)

      The Court notes for the purpose of s 18(2) of the Criminal Appeal Act that the period of 75 days, being from 18 December 2020 to 2 March 2021 (inclusive of both dates), does not count as part of the sentence of imprisonment imposed in the District Court on 22 July 2020.

   6. (6)

      The Court notes for the purpose of s 48 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the non-parole period will now expire on 4 June 2022 upon which date the applicant will be eligible for release on parole.

   7. (7)

      The sentence will now expire on 3 October 2023.