Pethybridge v R

1. [1]

   LEEMING JA: Mr Jack Pethybridge appealed from convictions on one count of assault accompanied by committing an act of indecency, contrary to s 61L of the Crimes Act 1900 (NSW), and one count of sexual intercourse without consent, contrary to s 61I. He stood trial in the District Court, constituted by Girdham SC DCJ and a jury of 12, over 5 days in January 2020 on an indictment containing those two counts (which were the second and third) as well as a further count of assault accompanied by committing an act of indecency, of which he was acquitted (count 1). He was sentenced to an aggregate sentence of imprisonment for 2 years and 9 months, with a non-parole period of 1 year and 5 months, on 8 May 2020. In the time between the jury returning its verdict and the Court imposing sentence, he had filed an appeal against conviction, and he was granted bail by the District Court immediately after he was sentenced, pursuant to s 22 of the Bail Act 2013 (NSW), the trial judge being satisfied that “special or exceptional circumstances exist that justify that bail decision”. Bail was thereafter continued until his appeal was listed for hearing in this Court on 21 July 2020.

2. [2]

   Mr Pethybridge advanced a single ground of appeal:

3. [3]

   The parties exchanged lengthy written submissions (together, exceeding 100 pages) in advance of the hearing. Their oral submissions lasted an entire day, those of the Crown being substantially longer than those of the applicant. The consequence was that the Court was able to make orders shortly after the conclusion of the hearing.

4. [4]

   These are my reasons for participating in the Court’s order that there be a grant of leave to appeal, the appeal allowed, the guilty verdicts quashed and in lieu thereof verdicts of acquittal entered.

Overview of factual background

1. [5]

   All three counts on the indictment involved the same complainant, a young man who in the early hours of the morning of 13 July 2017 was aged between 18 and 20.

2. [6]

   The complainant was around the same age as Mr Pethybridge. The pair had been friends for some years. Section 578A of the Crimes Act requires that there be no publication of information which identifies, or is likely to lead to the identification of, the complainant. These reasons should if possible adhere to that statutory command, as should the transcript of the hearing of the appeal.

3. [7]

   The Court heard submissions concerning whether s 578A had the effect that Mr Pethybridge’s name not be disclosed, which at one stage was suggested by both sides on the basis that his identity had not been widely disseminated. It was positively put on the part of Mr Pethybridge that “hopefully the horse hasn’t bolted, so to speak, because I’m not sure that there has been the broader publication in terms of any judgments at this stage”. It then came to the Court’s attention, following a submission made by a journalist present in Court for the hearing of the appeal, that Mr Pethybridge’s name, his conviction and the grant of bail pending appeal had been widely publicised, in electronic and print media, evidently on the basis that its publication by itself would not identify the complainant. The parties were informed of this. After the luncheon adjournment, the Crown advised that the complainant had advised:

4. [8]

   The Crown confirmed that it did not maintain its earlier position.

5. [9]

   As a matter of fact, the statutory non-publication order has not hitherto been regarded by Mr Pethybridge as extending to his name, including when his appeal was listed and mentioned in this Court. That approach was correct. Mr Pethybridge’s name without more does not make it likely that the complainant will be identified. Accordingly, the Court advised that it took the view, consistently with what had occurred to date and in accordance with the Crown’s revised position, that s 578A did not prevent naming Mr Pethybridge.

6. [10]

   However, s 578A requires the names of three important witnesses at trial, aside from Mr Pethybridge and the complainant, not to be fully disclosed. They were:

   1. (1)

      “Sol”, a young man who was at the time in a relationship with Mr Pethybridge;

   2. (2)

      the complainant’s boyfriend, who was not present in the house on 13 July 2017 but who learned about the events later that morning;

   3. (3)

      a young woman who was present in the house at the time of the events.

7. [11]

   When referring to the text messages and Facebook messages the principal witnesses sent each other, I shall for concision abbreviate Mr Pethybridge, the complainant, the complainant’s boyfriend, and Sol, by the letters P, C, B and S.

8. [12]

   Although the description of parts of the evidence adduced at trial of the events of July 2017 is necessarily detailed, a deal of vagueness has been introduced in these reasons, including concerning the ages, locations and workplaces of the witnesses, with a view to avoiding the disclosure of details which would likely lead to the identification of the complainant.

9. [13]

   It was common ground that Mr Pethybridge lived with his family, but that they would be away on the evening of 12/13 July 2017. He invited the complainant, Sol and the young woman to his house that evening. The four spent some time drinking until around midnight. They then went to sleep in the same bed. It was a King sized single bed. The bed was placed in a corner of the room, hard against the wall. A photograph was tendered at trial.

10. [14]

    The complainant gave evidence that he, Mr Pethybridge and Sol undressed to their boxers or briefs, and that be believed the young woman “was down to the same”. (She said that she was fully clothed; Mr Pethybridge could not recall what she was wearing; Sol said she was in her underwear.) All four people gave consistent evidence of how they lay in the bed. They lay on their left-hand sides. Closest to the wall and with his back to it was Sol. Next to him was Mr Pethybridge. Next to Mr Pethybridge was the young woman and on the edge of the bed was the complainant. It is plain that every person in that bed was in close physical contact with one or two of the others.

11. [15]

    The conduct giving rise to count 1 was, on the Crown case, Mr Pethybridge reaching his right arm over the young woman’s body and grabbing the complainant’s penis. The Crown alleged that the hand continued to touch the complainant’s penis for about 5 minutes before moving away. It was no part of the Crown case that the complainant did or said anything in response. The complainant said that he pretended to be asleep in the hope that it would stop.

12. [16]

    At some later stage, Sol left the bed to sleep elsewhere in the house.

13. [17]

    The complainant’s evidence as to the conduct giving rise to counts 2 and 3 is best reproduced as heard by the jury:

14. [18]

    The complainant then said he grabbed his phone, went to another room, cried, tried to call his boyfriend who didn’t answer because he was asleep, and at some point the young woman came into the room and hugged him and consoled him.

15. [19]

    It is as well to observe immediately that while Mr Pethybridge disputed that the conduct giving rise to count 1 ever occurred, he accepted that he and the complainant were in the bed, wearing little clothing, with the young woman between them, that he reached over to touch the complainant’s penis, and then positioned himself so as to perform the sexual acts giving rise to counts 2 and 3. On Mr Pethybridge’s case, the masturbation followed by the fellatio proceeded for around 5 minutes and continued until ejaculation.

16. [20]

    Mr Pethybridge said that immediately before going to bed, he had showered at the same time as the young woman, and while the complainant and Sol remained in the bathroom. At this stage there was a conversation between Mr Pethybridge and the complainant about a previous relationship between them. Mr Pethybridge’s account was that he regarded the talk of the previous sexual relations between him and the complainant while he was showering as flirtatious.

17. [21]

    The complainant denied that he had been in the bathroom with the other three people, let alone while two of them were showering together. However, he accepted that he and Mr Pethybridge had previously been in a sexual relationship, and had engaged in acts of oral sex with Mr Pethybridge on one occasion the previous year, in the same bedroom. He said in cross-examination that he did not recall raising that sexual encounter with Mr Pethybridge immediately before going to bed. However, the Crown cross-examined Mr Pethybridge on the basis that there had been “some discussion or some mention of a previous relationship you had with [the complainant]”.

18. [22]

    Hence this was a trial where there was a deal of common ground, including the drinking, the talk of their previous sexual activity, the four young people getting into the same bed, with the men wearing only their underwear, and Sol leaving at some stage to sleep elsewhere in the house. It was also common ground that Mr Pethybridge masturbated and fellated the complainant, during which the complainant said, repeatedly, “What about Sol?” or “Think about Sol”, referring to Mr Pethybridge’s boyfriend who had by then left the bed.

19. [23]

    There was also a marked disparity in the accounts of the complainant and Mr Pethybridge, concerning the extent of the sexual conduct. Either the fellatio proceeded for some minutes to ejaculation, or else it ceased after about 5 seconds when the complainant pushed Mr Pethybridge away.

20. [24]

    There were two other important discrepancies in the accounts of that evening, concerning whether the complainant was distressed and whether he left the room immediately after the fellatio.

    1. (1)

       On the one hand, the complainant said that immediately after pushing Mr Pethybridge away, he left the room, distraught, and tried to contact his boyfriend.

    2. (2)

       On the other hand, Mr Pethybridge said that he (Mr Pethybridge) left the room, leaving the complainant in bed with the young woman.

21. [25]

    Although this evidence did not go directly to the elements of the offences, it was important for the Crown case. As the Crown put it in oral submissions:

22. [26]

    These were the largest issues at trial. Both men were cross-examined extensively. It may be accepted that as each witness was giving evidence in January 2020 about what was said, and done, some 2½ years earlier, in the early hours of the morning after all had been drinking, there would inevitably be some aspects of their recollections which would be unreliable. But there was no room for ambiguity on the conduct giving rise to count 3.

23. [27]

    Either the complainant’s account was reliable, and he pushed Mr Pethybridge’s head away from his penis a few seconds after the fellatio commenced. Or else Mr Pethybridge’s account was reliable, and he fellated the complainant for around 5 minutes to ejaculation.

24. [28]

    If the complainant’s account was accepted, there was non-consensual sexual intercourse, in accordance with paragraph (b) of the definition of that term in s 61HA of the Crimes Act. If Mr Pethybridge’s account was accepted, then there was sexual intercourse, and two men cheated on their partners, but it would not be open to the jury to convict on counts 2 or 3. This does not turn on any nuanced aspect of the law of consent or knowledge (as prescribed in July 2017 by (former) s 61HA(2) and (3) of the Crimes Act; see now s 61HE(2) and (3), to be read with, inter alia, (9)). The issue is entirely factual. If the complainant was not believed about the fellatio lasting 5 seconds before he pushed Mr Pethybridge’s head away, but instead the act continued for around 5 minutes until ejaculation, then the jury could not safely accept other evidence from him about what he conveyed as to his consent and what Mr Pethybridge knew as to his consent, and there was no other basis on which the jury could conclude that there was an absence of consent to Mr Pethybridge’s knowledge.

25. [29]

    On this issue, the evidence of each man was critical. But there were also two other sources of primary evidence. There was the recollection of the young woman who was awake at the time and sharing the bed with them. And there is the evidence of the text messages and other electronic communications sent between Mr Pethybridge, the complainant and their boyfriends in the hours immediately after the sexual activities took place.

26. [30]

    The young woman’s evidence and the electronic messages also bear upon the two other important aspects of the Crown case: whether the complainant left the room, and whether he was distressed by what had occurred.

27. [31]

    As it happens, the young woman was not party to any of the electronic messages, and her testimonial evidence was quite brief. The convenient course is to summarise the course of the trial in two phases. First, I shall give an overview of the trial which also discloses the young woman’s evidence. Secondly, I will focus, in chronological order, upon the electronic communications between the four men, and their evidence in chief and cross-examination on those communications.

28. [32]

    The Crown opened its case consistently with what has been summarised above. The defence also opened, briefly, denying that the first incident occurred, but asserting that the conduct giving rise to counts 2 and 3 happened, but was clearly consented to. Concerning count 3, counsel for the defence said:

29. [33]

    The complainant’s evidence occupied Tuesday 21 January and some of Wednesday 22 January 2020. He was squarely confronted with the defence case.

30. [34]

    The balance of the Wednesday was occupied by the evidence of the young woman and the complainant’s boyfriend.

31. [35]

    The young woman was called in the Crown case. Her evidence was relatively short, occupying pages 151-168 of a transcript for which the trial and counsels’ addresses over five days occupy a total of 342 pages. Her evidence was equally divided between examination in chief and cross-examination.

32. [36]

    The young woman gave evidence that she remembered “Jack kind of climbing over me and then I remember a lot of kind of flurry and movement, and Jack was clearly touching Sol [sic] and I could tell from kind of the movement around the hip area, I could tell from the sounds that it was like a masturbating kind of sound.”

33. [37]

    The young woman also recalled the complainant “saying in like a really small kind of whimpering voice, it was ‘what about Sol?’ over and over again”. She said in her evidence in chief that those words would have been said more than four times. She did not hear any other words being spoken. In cross-examination, she accepted that the words she heard could have been either “What about Sol?” or “Think about Sol”. She did not give evidence of hearing any other words, such as “No, Jack, stop” or “Jack, please don’t”.

34. [38]

    She said that thereafter Mr Pethybridge left the room and she comforted the complainant:

35. [39]

    The transcript does not record any end to that sentence. The young woman is recorded as saying that she hugged him and said “It’s not your fault”. She said that happened in the bed, after Mr Pethybridge had left the room. She said that she believed that she and the complainant went back to sleep together. She said she might have gone to a couch outside the bedroom, but did not remember.

36. [40]

    She also said that Mr Pethybridge called her later that day, possibly after midday, and said “I’m sorry for, I’m sorry for last night. I was such a prick” and “I would like to blame it on the alcohol, but I know I can’t”.

37. [41]

    She said that while her relationship with the complainant stopped at that time, she continued her relationship with Mr Pethybridge for a year, camping with him, staying overnight with him and sleeping in the same bed with him and Sol. She stopped communicating with him in July 2018 when she gave a statement to police.

38. [42]

    The complainant’s boyfriend gave evidence that the complainant and he spoke early in the morning of 13 July 2017, while he was at work. He said that the complainant said “Jack touched me. Jack blew me. I pushed Jack away. I am so sorry”, and that those four phrases were repeated multiple times. In cross-examination, he accepted that the complainant told him, a number of times, that the touching and blowing were not consensual. The complainant’s boyfriend said that he was picked up after his work from a station at 2.25pm, and the transcript records that he gave this evidence about what the complainant said:

39. [43]

    Mr Pethybridge gave evidence on Thursday 23 January, followed by Sol. There were also other less important witnesses in both the Crown and the defence cases, some of whom will be mentioned below. The Crown and the defence addressed on the Friday, and the judge’s summing up occupied the Friday afternoon and part of the following Tuesday.

40. [44]

    The sexual activity being common ground (although there was a dispute as to its extent), the critical issues for the jury relevantly to this appeal were whether the complainant had communicated consent to Mr Pethybridge, and whether Mr Pethybridge had known that the complainant did not consent. In both respects, the onus lay with the Crown to prove beyond reasonable doubt that the complainant did not consent and that the absence of consent was known to Mr Pethybridge.

41. [45]

    Mr Pethybridge’s mental state could have been established in a number of ways. However, the primary judge made it plain that, given the nature of the Crown and defence cases, questions of reckless indifference or absence of reasonable grounds for believing that there was consent did not arise. The jury was instructed, in relation to counts 2 and 3 (in contradistinction to count 1, where recklessness and absence of reasonable grounds were left open as bases on which knowledge could be satisfied by the Crown) that it was necessary for the Crown to show actual knowledge of absence of consent.

42. [46]

    The jury returned a not guilty verdict on count 1 late in the afternoon of Wednesday 29 January, and a Black direction was given the following day. Her Honour concluded that direction as follows:

43. [47]

    The jury returned guilty verdicts on counts 2 and 3 on the afternoon of Friday 31 January 2020.

44. [48]

    As noted above, Mr Pethybridge was sentenced on 8 May 2020 and bail was granted that day pending appeal.

Contemporaneous documentary evidence

1. [49]

   I now return to the evidence tendered of the contemporaneous communications between the four men, which occupied much of their cross-examination.

2. [50]

   There was evidence that the young people communicated on a variety of social media platforms, the details of which were not fully exposed. Some of the text messages and Facebook messages and a summary of the complainant’s mobile phone records were in evidence. It is clear that what was in evidence was not exhaustive of the communications. It is also clear from the course of the trial that documents were available to both sides concerning the communications which did not go into evidence. In particular, the complainant was initially cross-examined on a document, which was never tendered, which appeared to be a call charge record produced by Vodafone of the charges incurred by the complainant. By agreement between the Crown and the defence, an agreed schedule titled “Summary of Vodafone Call Charge Records of [the complainant]” between 11 July and 13 July 2017 was tendered as Exhibit 5. Also tendered were six pages of SMS messages taken from the complainant’s boyfriend’s handset, and 11 pages of Facebook messages sent between the principal witnesses.

3. [51]

   The agreed summary was incomplete. It does not contain entries for SMS messages sent from the complainant’s handset. Nor does it contain records of incoming calls.

4. [52]

   The complainant’s boyfriend worked on a shift which started at either 5am or 5:30am on the morning of 13 July 2017. The complainant said he finished work at around 9:30pm on 12 July 2017 and arrived at Mr Pethybridge’s home at around 10:30pm to 11pm. The complainant and his boyfriend were expecting to see each other later on 13 July 2017. It was their six month anniversary.

5. [53]

   There were the following SMS messages between the two men on 12-13 July 2017:

   1. (1)

      10:19pm, complainant to boyfriend, “Call?”.

   2. (2)

      11:23pm, complainant to boyfriend, “Guessing you’re asleep I’ll let you go babe xx, keep me updated and I’ll see you tomorrow, love you lots xx”.

   3. (3)

      11:23pm, complainant to boyfriend, “Goodnight [smiley face emoji, blow kiss emoji]”.

   4. (4)

      3:57am, boyfriend to complainant, “Good morning babe. Yeah legit just been sleeping. I’m going to go into work today I’ll see you this afternoon [22 love eye emojis]. Happy Anniversary [complainant’s first name] I love you so much [love heart]”.

   5. (5)

      shortly after 3:57am, boyfriend to complainant, Sticker with text “CAN’T WAIT TO SEE YOU” surrounding a face.

   6. (6)

      6:06am, complainant to boyfriend, “Update: may still be together because they both came back inside”.

   7. (7)

      7:54am, boyfriend to complainant, “Ahh ok. Keep me updated plz. But having some time to think it doesn’t really sit well with me I feel upset about it all :(”.

6. [54]

   There is no reason to doubt that the first, second and third messages, all sent by the complainant, were not immediately read by his boyfriend, who had an early start at work, or that the fourth and fifth messages were sent by the boyfriend shortly after he awoke and before he got to work for his shift at 5am or 5:30am (the evidence was not clear which).

7. [55]

   The complainant and his boyfriend gave evidence that they spoke shortly after the latter started his shift. Evidently, one of the things they spoke about was whether or not Mr Pethybridge and Sol had broken up. The sixth and seventh messages reproduced above concern this.

8. [56]

   The sixth and seventh messages reproduced above are significant. They do not suggest that the complainant had told his boyfriend that he had been subjected to nonconsensual sexual intercourse. The focus is upon the status of the relationship between Mr Pethybridge and Sol.

9. [57]

   From 10:16am and thereafter (precisely when thereafter is not disclosed) there was a series of text messages between the men as follows. The text reproduced below is as per the text messages. Those sent by the complainant are preceded by “C:”; those sent by his boyfriend are indented and preceded by “B:”:

10. [58]

    It is also clear that the complainant told his boyfriend that Mr Pethybridge had done something affecting their relationship (“it doesn’t really sit well with me I feel upset about it all”, “I’m not happy about what happened either” and “I’m really pissed off at jack for doing that though, for jeopardising both our relationships”).

11. [59]

    There is no suggestion of any absence of consent to whatever had been done which impacted upon the relationship between the complainant and his boyfriend. Indeed, the non-consensual sexual intercourse which was the Crown case sits uneasily with the text messages. How would the acts of Mr Pethybridge jeopardise the relationship between the complainant and his boyfriend if they were non-consensual? If on the other hand there were consensual sexual acts between the two men, it is easy to see how both Jack’s relationship with Sol and the complainant’s relationship with his boyfriend would be jeopardised.

12. [60]

    The complainant was cross-examined about this. He rejected the proposition that the only way Jack could have jeopardised both relationships was if he were also at fault. He maintained that:

13. [61]

    At 10:38am, Mr Pethybridge sent a Facebook message to the complainant’s boyfriend. The latter responded at 12:08pm, and (at a time not disclosed by the documents in evidence) Mr Pethybridge replied. The exchange is as follows:

14. [62]

    The statement that Mr Pethybridge and the complainant “did shit” reads as consensual sexual activity which involved both participants cheating on their partners. Of course, on the Crown case, Mr Pethybridge was telling a lie about the activity being consensual. But the significance of this exchange is the complainant’s boyfriend’s response. On the Crown’s case, the boyfriend had earlier been told by the complainant, who was distraught, that he had been sexually assaulted by Mr Pethybridge. On the Crown case, the boyfriend had been told, repeatedly, that “Jack blew me” and “I pushed Jack away”. On the Crown case, a sexual assault had been committed, and the elements of it had been told by the victim to the victim’s boyfriend in a state of distress hours beforehand. The complainant’s boyfriend’s response is difficult to reconcile with that.

15. [63]

    At 12:11pm, Sol sent a Facebook message to the complainant’s boyfriend:

16. [64]

    The boyfriend replied (the time is not disclosed):

17. [65]

    The boyfriend added later:

18. [66]

    At 12.39pm, Sol replied:

19. [67]

    Once again, the boyfriend’s message can only be understood as reflecting an understanding that there had been sexual acts between Mr Pethybridge and the complainant earlier that day. As much was common ground at trial. The issue was whether the sexual acts were consensual. The words “I’ve forgiven Jack” are readily consistent with a belief that there was a consensual sexual act. It is difficult to see how they could be consistent with a non-consensual act. Yet on the Crown’s case, the complainant had told his boyfriend earlier that morning that Mr Pethybridge had had nonconsensual intercourse with the complainant, and had told him over and over that he pushed Mr Pethybridge away.

20. [68]

    The complainant’s boyfriend was confronted with this during cross-examination, and it was put to him that the complainant had not said that the encounter was nonconsensual. He gave this evidence:

21. [69]

    The complainant’s boyfriend also sought to explain his response by being distracted while at work:

22. [70]

    There must be at least a doubt that the complainant had told his boyfriend that Mr Pethybridge had assaulted him without consent earlier that morning.

23. [71]

    At 2:53pm, some time thereafter, and at 3:15pm, there were the following Facebook messages between the complainant and Sol:

24. [72]

    This exchange is important. It is difficult to reconcile with the Crown case, for the following reasons:

    1. (1)

       Sol evidently was of the view that the complainant had something to apologise for, although conceding that “it wasn’t all your fault”. Of course, Sol’s text reflects in part what Mr Pethybridge had told him had occurred. But it is evident Sol was offended that “you offered no apology”. That is inconsistent with a belief that the sexual activities earlier that morning had been nonconsensual.

    2. (2)

       It is not clear whether there had been a conversation immediately before the exchange. The key words are Sol’s reference to “just now”. Either there had been a conversation just before the complainant’s message, during which no apology was offered, or else by “just now” Sol was referring to the message “If you have any questions or want to clarify anything, ask me, I’m here for you”.

    3. (3)

       But whether or not there had been a conversation immediately before 2:53pm, Sol was of the view that there had been opportunities for an apology from the complainant for his role in Mr Pethybridge’s infidelity earlier that morning. It prima facie follows that the complainant had not at that stage said that the sexual acts had been nonconsensual, and Sol was of the view that there had been two opportunities for the complainant to make that apology.

    4. (4)

       The third message is an express “clarification” of absence of consent. But as will be seen, that message was actually composed not by the complainant, but by his boyfriend.

25. [73]

    At 1:28pm the complainant’s boyfriend sent a text message “2:25 babe”, and the complainant responded “See you soon boo xx”. There followed a long text message from the complainant’s boyfriend to the complainant which was verbatim identical to the message sent by the complainant to Sol at 3:15pm (“I know it’s hard time for you at the moment...”). The boyfriend explained that he composed the message with a view to it being passed on to Sol.

26. [74]

    At 10:30am, 11:34am, 12:06pm and sometime thereafter on the following day, 14 July 2017, there was the following exchange of Facebook messages between Sol and the complainant’s boyfriend:

27. [75]

    That exchange is difficult to reconcile with the complainant’s boyfriend being told that the previous day – first by telephone while at work, and then in the afternoon when the pair met – that there had been nonconsensual intercourse between the complainant and Mr Pethybridge.

28. [76]

    Yet the complainant’s boyfriend gave testimonial evidence on which the Crown relied:

29. [77]

    According to the agreed summary of his mobile phone records, the complainant made a call on his mobile phone to a friend for 2 minutes and 16 seconds at 2:07am. He could not recall anything about the call. The impression gained from the way this unfolded at trial is that until a search was undertaken by a police officer of the list of contacts in the complainant’s handset, no one had identified this call as significant. It may well be that no investigations of that friend’s recollection of a call at 2am on the morning had taken place. Whatever be the position, the friend was not called at trial, and what was said on that call remains unknown.

30. [78]

    The agreed summary also contains very short (3 seconds, 4 seconds and 18 seconds) calls by the complainant to his boyfriend at 4:53am, 5:06am and again at 5:06am. The records apparently also record “data usage” for 12 minutes and 59 seconds after the 4:53am call, and 20 minutes and 58 seconds after the 5:06am calls. Precisely what was done by the complainant to cause Vodafone to make those records was unexplained. There may well be a ready explanation for the records (they are consistent with the parties initiating a VOIP communication) but the evidence did not go to that level of detail.

Inconsistent verdicts?

1. [79]

   Both parties addressed ground 1(b) first. I shall follow the same course.

2. [80]

   It was accepted that the principles were accurately stated by this Court in Roos v R [2019] NSWCCA 67 at [42]-[45]:

3. [81]

   Applying those principles, the acquittal on the first count is readily explicable.

4. [82]

   First, three people could have touched the complainant’s penis: Sol, Mr Pethybridge and the young woman. All were lying facing him on the same bed. Mr Pethybridge denied the conduct took place. The young woman was not aware of such conduct before Sol left the bed. The only evidence on count 1 was from the complainant. The complainant could only give evidence of someone’s hand touching his penis. Indeed, the complainant himself when giving evidence relating to count 2 said that he turned around to determine whether the hand touching him was that of Mr Pethybridge or of the young woman.

5. [83]

   The onus lay on the Crown to establish beyond reasonable doubt that it was Mr Pethybridge’s hand which the complainant felt. It is possible that the jury, with the advantage of seeing the complainant and Mr Pethybridge give evidence of this, was not satisfied that the Crown had discharged its onus.

6. [84]

   Secondly, and independently of the first point, the Crown case was that the complainant pretended he was asleep as his penis was being touched. There was no communication confirming the absence of consent. The complainant had voluntarily stripped to his underwear, and got into bed with three others, including a former sexual partner.

7. [85]

   It was well open to the jury to conclude that the Crown had not demonstrated that Mr Pethybridge knew that the complainant did not consent. I do not accept that ground 1(b) is made out.

8. [86]

   There is a final point. True it is that at one stage, as Mr Pethybridge submitted, the trial judge directed the jury, following their return of a not guilty verdict on count 1, that “there would not appear to be any logical reason why your verdicts would be different” on counts 2 and 3. But, with respect, that was not so. If the acquittal was based on the jury’s rejection of the reliability of the complainant’s evidence, that would follow. But as noted above, there are reasons independent of the complainant’s reliability which can explain the verdict on count 1. Indeed, the trial judge herself recognised as much in her reasons for granting bail.

Unreasonable verdict?

1. [87]

   Subject to the qualification that an appeal on the ground that a verdict is unreasonable is subject to the grant of leave, this Court is required to carry out its own assessment of the evidence to determine whether it was open to the jury to find that the charged conduct was proved beyond reasonable doubt.

2. [88]

   Once again, there was no dispute as to the applicable principles to be applied. They derive from M v The Queen (1994) 184 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, and Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30. In Pell v The Queen [2020] HCA 12; 94 ALJR 394 at [45], the High Court said:

3. [89]

   It is a serious step to set aside a jury verdict on the ground that it is unreasonable. A unanimous High Court said in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]:

4. [90]

   Making due allowance for the advantages enjoyed by the jury, must the jury have entertained a doubt as to counts 2 and 3?

5. [91]

   A series of considerations give rise to substantial doubts about Mr Pethybridge’s guilt. I have concluded that the jury, if it had had proper regard to all of the evidence, could not have been satisfied beyond reasonable doubt as to his guilt on counts 2 and 3.

6. [92]

   The first difficulty with the verdict arises from the evidence of the young woman. She was, after all, a witness to the events happening next to her. At one stage during oral submissions, counsel for the Crown who appeared in this Court (and not at trial) accepted that if non-consensual sexual activity were taking place on the bed in the early hours of 13 July 2017, the young woman, who was awake at the time, and who heard the complainant say, repeatedly, “What about Sol?” must have appreciated that it was occurring.

7. [93]

   I think the Crown’s concession was correctly made. There was no suggestion that she appreciated at the time that the offences were taking place. She was called in the Crown case and it was not suggested she was attempting to protect Mr Pethybridge. Yet she undoubtedly appreciated that sexual acts were taking place between the two men, and therefore could not have believed they were nonconsensual.

8. [94]

   But if the young woman did not realise a sexual assault was being committed next to her, how was the jury going to find beyond reasonable doubt that there had been no consent to the knowledge of Mr Pethybridge?

9. [95]

   My questions continued:

10. [96]

    In principle, I accept that it was possible that the young woman had an incomplete recollection of all that had occurred, which is consistent with the explanation offered by the Crown. But if that is not so, then it is difficult to explain the verdict. Further, the difficulty with the Crown’s explanation is that it is not what the complainant said at the time. In the message which was composed by his boyfriend, but sent on by the complainant to Sol, only a few hours later, he said “When you’re ready to address things [the young woman] will be able to clarify as she was awake and witnessed what happened”.

11. [97]

    It follows that either the young woman was awake and witnessed what happened, but did not appreciate that the complainant was not consenting, or else the complainant’s statement about what the young woman saw was incorrect. Either way, there is a serious difficulty in the reliability of the complainant’s evidence, and one which cannot readily be reconciled by respecting the advantage enjoyed by the jury.

12. [98]

    This is not merely some transitory failure to appreciate that a serious offence had been committed inches away from the young woman. The jury heard uncontroversial evidence that immediately after 13 July 2017, and thereafter for around a year, the young woman ceased contact with the complainant, who had been her friend, while maintaining contact with Mr Pethybridge. Her evidence about that has been reproduced above. The complainant was cross-examined about this, and agreed that his friendship with the young woman ended shortly after 13 July 2017. This is not an aspect which much depends upon the way the witnesses presented in Court. It is inherently improbable that the young woman would cut ties with the complainant, and maintain close ties with Mr Pethybridge, if she believed that the latter had sexually assaulted the former. If she did not believe that there had been a sexual assault, then that gives rise to a doubt as to whether Mr Pethybridge knew there had been no consent.

13. [99]

    Secondly, the young woman’s evidence is also inconsistent with the complainant having left the bed immediately after he pushed Mr Pethybridge away. Her evidence was clear and unchallenged that she hugged him in the bed after Mr Pethybridge left the room. That is sharply inconsistent with the complainant’s evidence.

14. [100]

    Once again, this is not merely some minor aspect of the complainant’s case. If indeed he had been assaulted by Mr Pethybridge, it is difficult to see him remaining in or returning to the bed, at least while Mr Pethybridge was there.

15. [101]

    Thirdly, the contemporaneous documentary evidence is inconsistent with the complainant being distressed and distraught as a result of a sexual assault. Putting aside the complainant’s telephone call to a friend at 2:07am, which was entirely unexplained in the evidence, there are the text messages sent by the complainant to his boyfriend at 6:06am and 10:16am. Certainly the latter, and probably the former, followed a conversation between the pair in which the complainant told his boyfriend something about what had happened. But a text message – “Update: may still be together because they both came back inside” – updating his boyfriend on the relationship status of a man who had within the previous six hours sexually assaulted him and that man’s partner is difficult to reconcile with the testimonial evidence of him being very distressed and crying hysterically.

16. [102]

    In this respect, this Court is in the same position as the jury in interpreting the messages.

17. [103]

    Fourthly, a close analysis of the electronic communications leads to the conclusion that the complainant had not immediately indicated to his boyfriend that the sexual activity had been nonconsensual. This is the only explanation for the complainant’s boyfriend telling Sol he had forgiven Mr Pethybridge (in his message that afternoon). It is also a plausible explanation for Sol expecting an apology from the complainant (in Sol’s message some time after 2:53pm).

18. [104]

    Of course, victims of sexual assault may be traumatised by the experience, and take time to explain in full what occurred. The significance of the evidence that the complainant delayed in saying that the sexual activity was nonconsensual for the purposes of this appeal is that it undercuts his unequivocal evidence that he immediately told his boyfriend what had happened, when the pair first spoke, earlier in the morning when his boyfriend’s shift at work commenced.

The Crown’s submission on other evidence

1. [105]

   A great deal of the Crown’s written submissions (pars [177]-[289] over some 20 pages) sought to rely, in answer to the submission that the verdict was unreasonable, upon other evidence said to support the complainant’s version of events and to bolster his credibility. A great deal of counsel’s oral submissions was directed to the same material.

2. [106]

   It should be said at the outset that the theory underlying this aspect of the Crown’s response to the appeal was flawed. Mr Pethybridge was in a relationship with Sol. The complainant was in a relationship with the complainant’s boyfriend. As it happens, the latter were about to celebrate their six-month anniversary that morning. On any view, the sexual activity which undoubtedly occurred involved acts of infidelity by Mr Pethybridge to his boyfriend. If it was consensual, it also involved infidelity by the complainant to the complainant’s boyfriend. That is the context in light of which the electronic communications between all four men fall to be assessed.

3. [107]

   Evidence which is consistent with an appreciation on the part of Mr Pethybridge that he was cheating on his boyfriend does little to assuage the doubts concerning the young woman’s evidence and the electronic messages which are summarised above. It is of little assistance to render the guilty verdicts safe. Even so, I shall address the most salient points raised by the Crown.

4. [108]

   First, it was submitted that the young woman’s evidence of the complainant speaking in a “really small kind of whimpering voice”, saying the words “think about Sol” or “what about Sol?” left it “well open to the jury to conclude … that he was indicating his lack of consent” (par [181]). That may be so; much would turn upon non-verbal aspects of the statements, including the tone of voice, and the expression on his face. Without more, those words are equally consistent with merely drawing attention to the lack of fidelity to Mr Pethybridge’s then boyfriend. One may readily contemplate consensual acts of infidelity commencing with the words “What about your [name of husband or wife or partner]?”

5. [109]

   Secondly, the Crown pointed to the demeanour and the behaviour of the complainant after the alleged sexual assaults. The Crown referred to the complainant’s evidence that he sat in the lounge room and cried, and that the young woman came into the lounge room and hugged and consoled him. I disagree that this supports the verdicts. The first difficulty is that the young woman’s evidence was that she hugged him while he remained in the bed, after Mr Pethybridge left. The second difficulty is that while on the one hand the complainant and his boyfriend gave evidence that they spoke in circumstances where the complainant was distressed, the pair exchanged a series of text messages directed to the updates of the relationship between Mr Pethybridge and Sol. The third difficulty is that on any view of events, there was reason for the complainant to be concerned with his account to his boyfriend on their six-month anniversary later that day, once it became clear to the complainant and his boyfriend that the sexual activities of the evening would become known. On any view of the facts, the complainant had stayed overnight at the house of a man with whom he had a year previously been sexually intimate, and with whom he had voluntarily shared a bed while wearing only his underpants. Despite the messages between the complainant and his boyfriend which were in evidence, the first occasion on which a message was sent to the complainant’s boyfriend explicitly about the sexual activities the previous night was at 10:38am, when Mr Pethybridge sent a Facebook message to the complainant’s boyfriend:

6. [110]

   Thirdly, the Crown relied upon complaints made to the complainant’s boyfriend, which have been addressed above. While the complainant said he told his boyfriend “I’m so sorry … Jack, Jack’s touched me. Jack’s put [his] mouth on me. … I didn’t agree to this. I’m so sorry that this has happened”, the complainant’s boyfriend’s recollection was slightly different: “Jack touched me. Jack blew me. I pushed Jack away. I’m so sorry”. The complainant’s boyfriend’s recollection more closely correlates with Mr Pethybridge’s text message (“last night me and [the complainant] did shit”) but in any event is consistent with both the complainant’s and Mr Pethybridge’s version of events.

7. [111]

   The Crown also relied on evidence of complaint to the complainant’s neighbour, his mother and his father. These seem to have been some weeks or months after the event, and do not undercut the force of the inconsistencies mentioned above.

   1. (1)

      The complaint to the neighbour did not descend to the detail of the sexual activities. Once again, the distress and the withdrawal from his circle of friends were consistent with both the Crown’s case and the applicant’s case.

   2. (2)

      The complaint to the complainant’s mother is in the same category.

   3. (3)

      The complaint to his father, in so far as it related to the sexual activity, was recalled by the father (in a statement which was read to the jury) thus:

   4. (4)

      On one view, some of this evidence more closely aligns with Mr Pethybridge’s account of what occurred – a much longer, consensual act of infidelity to the boyfriend, rather than the relatively brief masturbation and five seconds of fellatio which was the Crown’s case. But the presently significant point is that all is consistent with either case and thus is unable to answer the submission that the verdict is unreasonable.

8. [112]

   The Crown also relied upon what were said to be admissions by Mr Pethybridge, namely, messages sent by him to the complainant in 2018 and a telephone call from him to the young woman the day after the events. The messages are in the same category as the above, consistent with both the Crown’s and the applicant’s cases. The telephone call, the evidence of which was the young woman giving her recollection of a telephone call she had received some two and a half years earlier, was to the effect that Mr Pethybridge was very clearly apologising for what had happened (“I’m sorry for last night. I was such a prick”). She agreed with the Crown prosecutor that his words conveyed that he knew what he did was wrong. Mr Pethybridge gave evidence that he said he was sorry not for what he had done but because of the result it would have on the relationship between him and his boyfriend. The pair was arguing and the boyfriend was sobbing, and the young woman had to endure that. The Crown’s submission was that it was open to the jury to reject that explanation. Undoubtedly that is true. However, it does not supplant the doubts arising from the matters mentioned earlier concerning the young woman’s evidence.

Conclusion

1. [113]

   This Court’s undoubted power to quash a conviction following a jury’s verdict is to be exercised with great care.

2. [114]

   It was quintessentially a task for the jury to determine whether they believed the complainant or Mr Pethybridge. But that task did not involve merely watching each man give evidence. The jury was required to assess each man’s evidence in light of the entirety of the evidence adduced at trial.

3. [115]

   As was said in M v The Queen in the context of an appeal court being asked to set aside the verdict of a jury who had seen the witnesses:

4. [116]

   In summary, the following difficulties remain, after making full allowance for the advantage enjoyed by the jury.

5. [117]

   First, the messages undoubtedly sent by the complainant to his boyfriend early in the morning, concerning the status of Mr Pethybridge and Sol’s relationship, cast doubt upon the reliability of the complainant’s evidence that he had told his boyfriend that he had not given consent. Why was the pair exchanging messages about the relationship status of a man who, according to the complainant, he had just told his boyfriend had sexually assaulted him?

6. [118]

   Secondly, the same messages cast doubt upon the reliability of the complainant’s boyfriend’s recollection that he was told, early in his shift that morning, by the complainant that the complainant had not consented.

7. [119]

   Thirdly, the messages sent by the complainant’s boyfriend to Sol that morning, concerning his having forgiven Jack, likewise cast doubt upon his having been told that his boyfriend had been subjected to nonconsensual sexual acts earlier that morning.

8. [120]

   Fourthly, the complainant’s evidence that he was highly distressed and emotional immediately after the events is difficult to reconcile with the tone of the messages sent to his boyfriend immediately thereafter concerning the relationship status of Mr Pethybridge and Sol.

9. [121]

   Fifthly, the evidence of the young woman is difficult to reconcile with the complainant’s case, and in a number of ways.

   1. (1)

      The young woman was awake and heard the complainant say “What about Sol?” or “Think about Sol”, but did not sense the complainant pushing Mr Pethybridge away.

   2. (2)

      The complainant said that he left the bed immediately after being assaulted. The young woman said that he remained in the bed and was hugged by her.

   3. (3)

      In order to explain why the young woman did not appreciate that there had been a sexual assault, the Crown contends that the young woman did not observe, or had forgotten, all of what occurred. However, hours after the assault, the complainant told Sol that she was a witness to what occurred.

   4. (4)

      The young woman maintained a friendship with Mr Pethybridge for a year, and ceased her friendship with the complainant.

10. [122]

    When assessed in the light of all of the evidence, there must be serious doubts that the complainant’s evidence to the effect that Mr Pethybridge performed fellatio upon him for five seconds before the complainant pushed him away, following which the complainant left the room, is correct. Those doubts are not resolved by any of the other evidence at trial. The jury should have entertained reasonable doubts on both counts on which they returned guilty verdicts. In accordance with M v The Queen this Court is bound to set aside the verdict.

11. [123]

    LONERGAN J: On 21 July 2020, having examined the record of the trial in detail, and with the benefit of extensive written and oral submissions made on behalf of the Crown and the applicant, I joined in the orders of the Court allowing the appeal, quashing the guilty verdicts and entering verdicts of acquittal.

12. [124]

    I am indebted to Leeming JA for his thorough review of the evidence and the issues raised by this appeal. His Honour’s analysis and conclusions reflect my own assessment and I have nothing to add.

13. [125]

    HIDDEN AJ: I also appreciate the careful analysis of the material by Leeming JA, and I agree with his Honour’s reasons.