Daaboul v R

1. [1]

   BATHURST CJ: The applicant, Joseph Peter Daaboul (the applicant), was charged on indictment with the following offences:

2. [2]

   Following a trial which extended over nine days, the jury was unable to reach a verdict on Counts 1-7 in the indictment, but found the applicant guilty on Count 8. The applicant is yet to be sentenced.

3. [3]

   The applicant has appealed against his conviction on Count 8 on the following grounds:

4. [4]

   Leave to appeal is required because the grounds of appeal involve mixed questions of fact and law. I am of the opinion that because the grounds of appeal are fairly arguable, leave should be granted.

5. [5]

   Because of the nature of the grounds of appeal, it is necessary to summarise the evidence given at the trial in some detail.

The Crown case

1. [6]

   The complainant participated in two electronically recorded records of interview, the first on Saturday 9 April 2016, and the second on Monday 11 April 2016. The interviews thus occurred shortly after the incidents the subject of Counts 7 and 8 that allegedly occurred on Thursday 7 April 2016.

2. [7]

   The first interview was relatively short, lasting 15 minutes. The complainant described the applicant as her ex-partner and said that they were an “on-and-off couple since high school”.

3. [8]

   The complainant was asked what happened on Thursday 7 April 2016. She replied that “he (the applicant) took me to Rookwood Cemetery, he abused me, um, I’ve got choke marks here. And he, I don’t know what this is, but I think it’s his hand. Um, and he punched me on my leg”.

4. [9]

   She was then asked why she went to Rookwood and she gave the following reply:

5. [10]

   The complainant was asked what happened when she and the applicant first got to Rookwood and stated, “Um, he was just, he was just screaming at me. And then he threatened me about killing me”. She was then asked “what did he actually say” and she gave the following response:

6. [11]

   She was then asked “how did the injuries happen” and she responded as follows:

7. [12]

   The complainant was then referred to marks around her neck and she stated “… and then he tried to hide it, so he, he kissed me there. But you can still see that’s his thumb there”. She stated she got the marks around her neck when she was on the passenger seat “and then he just choked me ‘cause I wouldn’t say a word, I wouldn’t answer him”.

8. [13]

   The complainant was then referred to marks on her right arm and she stated that happened because the applicant thought she was texting someone “so he grabbed me, he pulled me”. She then identified the marks on her right arm and around her neck, referring to a circular one on her neck as the one where he tried to kiss her to cover it up.

9. [14]

   She was then asked whether there was anything else she could tell the interviewer about what happened on Thursday 7 April 2016 and she replied:

10. [15]

    She was subsequently asked the same question and she replied “Um, well, he spits at my face. I don’t know what, he thinks I’m disgusting now, he never used to, he was never like that.”

11. [16]

    The second interview which took place two days later was more extensive. Early on in the interview, the complainant said that when she met the applicant on Thursday 7 April, “he was calm at first, but then all of a sudden, 5 minutes within the conversation, he just went mental”. She said that he was “emotionally abusing” her, and that he said to her “you lied to me, you’re the dirtiest slut I’ve known, you’ve cheated on me” and that “he said a lot of things that I, I’ve never done”.

12. [17]

    The complainant said that the applicant “got angry because he saw text messages from a guy I’m going on a date with on Friday” and that was when the choking and the hitting started. She said that he said that he was going to bury her and they would “go to the cemetery” and then “he drove all the way to Rookwood Cemetery”. She described what then occurred in the following terms:

13. [18]

    The complainant said that thereafter the applicant “cooled down” a bit, but then “he started going again, he started, um, yelling again, and then he cooled down”, and then dropped the complainant at a train station.

14. [19]

    Subsequently in the interview, she elaborated on what occurred during the incident with the applicant on Thursday 7 April. She repeated her statement that he “went ballistic” and said that he was accusing her of seeing other guys and then changing his mind and saying that he didn’t care if she saw other guys. She said that it was like he didn’t know what he was thinking.

15. [20]

    She said that this occurred near Barker Road in Strathfield and then the applicant stopped at a golf course in Strathfield and then drove to Rookwood Cemetery. She thought that they stopped at the golf course for “about 10 minutes, because he was screaming and screaming”. She said that she “let him scream for a little while, and then he said ‘Why don’t you talk’. I tried to, and then he spat on me.” She said that he made the threats about killing her and “the chocking started” when they were driving to Rookwood. She stated that he said “I want to buy [sic] you alive, bitch, um, because no-one needs to go through your shit anymore”. She said that was when she started crying. She said that the applicant had “a serious tone to the point where he looked like he was about to do it”.

16. [21]

    She said that they drove around inside Rookwood cemetery and that the applicant was slapping her on her leg and pinching her at the same time. She said that he was driving with one hand and “just hitting, hitting”. She said that she tried to move onto the other side or go to the back but he grabbed her right arm and it hurt.

17. [22]

    She said that he drove to the crematorium and parked the car. She then gave the following answers concerning the choking:

18. [23]

    The interview then dealt with the alleged sexual assault:

19. [24]

    She described her emotional state following the incident in the following terms:

20. [25]

    She was subsequently asked whether she had told anyone about the incident and she said that she told her friend and her aunties and that her aunties told her to tell her mother and father, so she “told them last night”. She identified the two friends she told as those who had come with her to the previous interview, Ms B and Ms D.

21. [26]

    She said that she told her aunts the day before the interview (10 March 2016) when they saw the bruises and asked her what had occurred. She identified the name of the aunts, Aunt B and Aunt P.

22. [27]

    The complainant agreed that she sent a text message to the applicant on the night following the incident which stated “Goodnight I love you”. She described her emotional state at that time she send the text message in the following terms (Q320 and 321):

23. [28]

    At the outset of the complainant’s evidence, the electronically recorded interviews were played to the jury and the disc tendered.

24. [29]

    Following the playing of the first recorded interview the complainant agreed that she went to the Quakers Hill Police Station with Ms D and Ms B on 9 April 2016. She agreed that after the interview, the three of them drove to a park near the complainant’s home and on being asked about the conversation in the car she said “they asked me – they didn’t know that he was doing this to me – abusing me, so I told them this isn’t – he’s done this before – plenty of times” . She said that one friend asked her if the blow job was consensual and she said she told her no, and that she did not like “doing blow jobs”.

25. [30]

    The complainant also said that when she went to the police station on 11 April she met a Detective Penny Allen and told her that the applicant said that if she didn’t give him a blow job, he would kill her and that he forced her to give it to him.

26. [31]

    The complainant gave evidence that she knew the applicant as he went to her brother’s school. She said that “[h]e became Facebook friends with me in 2011 as well, and from then on it was Facebook chats”. The complainant said that she would see the applicant at parties but the next time they had contact was in 2013 at ‘schoolies’.

27. [32]

    The complainant was asked whether there was an occasion when the connection between her and the applicant was “more intimate than simply talking” and she said that there was an occasion, “there was alcohol involved so there was kissing and then touching, and then it led to sex”. She said that it was penile-vaginal sex and it was consensual.

28. [33]

    The complainant stated that in 2014, she and the applicant “casually hooked-up” but it was “only … five times”. She explained that “hooked-up” referred to “casual sex”, which again was penile-vaginal sex.

29. [34]

    The complainant said that in 2014, she only contacted the applicant through Facebook and saw him randomly. She said that the Facebook contact increased in early 2015.

30. [35]

    The complainant then gave evidence about the incident the basis of Count 1 on the indictment. She said that on 2 or 3 June 2015 she agreed to meet with the applicant that afternoon. She said that they met in a study room in the Law Faculty of the University of Technology Sydney (UTS) around 5.30pm.

31. [36]

    The complainant said that they were “just studying” but after a few minutes the applicant said “I can’t wait to take your clothes off”. She said that she thought at first it was a joke but then he went to a chair in the corner and said “I’ll wait here until you’re ready”. She said that she went to him and they “started making out, kissing and stuff”. She said that he put his hand on her breasts and started biting her breasts after he took off her clothes. He then asked if he could have a blow job and the complainant said no.

32. [37]

    The complainant stated that what had happened up to that occasion was consistent with the kind of sexual activity she had consensually with him from time to time. However, she stated that she “would never give him a blow job”.

33. [38]

    The complainant was then asked what happened after he asked her for a blow job and she gave the following answers:

34. [39]

    The complainant said thereafter the applicant “went on top” of her and started to have penile-vaginal sex. She stated that she thought “okay, let – let that happen because that – I wanted to forget about all the blow job situation”. She said that after the penile-vaginal sex finished, the applicant asked her if she liked it and she said “Yeah, it was fun, but I don’t like doing blow jobs”. She said that the applicant then started laughing and they walked to KFC and had dinner and then went home.

35. [40]

    The complainant said that she and the applicant “started officially dating” about a month later in July.

36. [41]

    The complainant was asked whether the study room in which her and the applicant had sex in “had windows to look through”. The complainant said that “there was [sic] windows, and the light was on, and then he turned it off so no-one will see us”. The complainant was asked whether there were people walking past the study room when they were having sex. She said that they “checked and there was no-one”.

37. [42]

    Thereafter, the complainant gave evidence that the applicant took her to dinner at an establishment called “Ettamogah Hotel” in Rouse Hill. She said that he asked her to marry him and she was ecstatic and said yes. She stated that between the time they had had sex in the UTS study room and when he proposed to her, there had been no other instances of forced sexual conduct.

38. [43]

    The complainant then gave evidence in relation to Count 2. She said on the evening of 15 or 16 September, the applicant agreed to go with her to a family gathering at the Shanghai Night Restaurant in Ashfield (the Ashfield restaurant). She said that she came with her family and when the applicant arrived he didn’t want to come in, so she “went to the car to him, and then he started screaming” at her and asked her why she was lying. She said that she told him that she was not lying to him and he kept on saying, “Yes, you are. People are telling me you’re lying to me”. She said that the topic that she was allegedly lying about concerned an allegation of her cheating with a man.

39. [44]

    She said it was about a guy named Jeff.

40. [45]

    She said that the applicant then started driving around Strathfield and went into a back alleyway and asked her to give him a blow job. She said “no”. He said “if you live [sic] me, you would give it to me”. She said that he then “started taking off his pants” however, “he wasn’t erect yet or anything”. The complainant said that after the applicant took off his pants, he grabbed her by her shoulders and her head and “rammed” her mouth “down his penis”. She said that he told her “I know you like seafood. Say hello to seafood.” She said that “because his penis wasn’t erect, he was getting angry” and said “suck me off harder, bitch” and “I’ll break up with you if you can’t do it more”. She said that he was holding her hair and ramming her head down.

41. [46]

    She said that after that occurred “because he was still getting erect”, he told her he wanted to break up and said “I’m done with your crap”. The complainant stated that she replied “I’m done with you as well”. The complainant said that the applicant then drove her and at a traffic light which was red she opened the door and walked off.

42. [47]

    The complainant said that she could not recall that the applicant made any threats to her whilst he was forcing her to perform oral sex.

43. [48]

    The complainant then gave evidence concerning Count 3. She said the day following the last incident, the applicant texted her and asked her to come and talk to him. She said that she agreed and met him in an alleyway near Strathfield Station. She said that he started yelling at her saying “Why are you lying to me? Why are you cheating on me?” She said that she told him that she was “not doing any of them” and that they had already talked about it. She said that the applicant asked her “who else are you sleeping with” and she responded “I’m only sleeping with you”. She said the applicant replied “no, we’re just hooking-up”. She said “no, we’re having sex. You’ve come to me so many times” and the applicant replied “I don’t fit”. The complainant said “Yes, it does”.

44. [49]

    The complainant said that after that conversation the applicant drove to Rookwood Cemetery and visited his grandparents’ grave. She said that “he went on again about cheating and how it doesn’t fit, or anything”. She said that he then started driving again and saw a friend from his law group at UTS. The complainant said that the applicant dropped the friend at Strathfield Station. She said that they then drove to a park near the golf course at Strathfield and he demanded a blow job. She then gave the following evidence:

45. [50]

    The complainant said that after that incident occurred the applicant dropped her off at the park. She said that she only had her phone with her because her bag was left in the car. She said that the applicant subsequently returned and became angry again because she had called a guy named Mike.

46. [51]

    The complainant said that she and the applicant then went to a pub near Homebush Station and he then dropped her off at the Station and went home.

47. [52]

    The complainant was then asked what the next contact was she had with the applicant and answered “it was every day” because they “were still together”. She said that there was also some social media contact.

48. [53]

    The complainant then gave evidence about Count 4. She said that she recalled going to lunch with the applicant at an establishment called “Outback Jacks” in Strathfield on 19 October 2015 (the Outback Jacks incident). She said that they were “just having a nice lunch” and they were “just talking”. She said a person called Rob texted her and the applicant asked her “why are you talking to this man?” She said she replied “Don’t worry – we’re just friends”.

49. [54]

    The complainant said the applicant then poured a jug of water on her. She said she was very embarrassed so she walked out of the restaurant. She said that the applicant chased her outside and demanded that she pay for the lunch. The complainant said that she and the applicant were then driving home when the applicant started spitting in her face. She said that a person from her gym called her asking her to renew her membership. She then gave the following evidence concerning Count 4:

50. [55]

    The complainant said she told the applicant that “it’s hurting”, but he wouldn’t stop until he hit her with the tennis racket for the fifth time. She said that he then “chucked another bottle of water” at her and she got out of the car and “ended up meeting” a female friend at Strathfield. She identified the friend as Ms N.

51. [56]

    The complainant said that she knew Ms N because they were in the same class at high school and had been friends since Year 7. She said that after school she had “very frequent” contact with her and that they used to go out every Thursday and Friday until about 2017. She said that they were very close friends but now just saw each other “from time to time”.

52. [57]

    The complainant said that she met Ms N at a park in Wallis Avenue. She said that they were just talking and catching up and Ms N asked her “why are you wet?” She said that she responded “Joe did this to me” and Ms N replied “why aren’t you going to break up with him? I told you to break up with him”.

53. [58]

    The complainant said that she told Ms N that the applicant poured a whole jug of water on her and spat on her face. She said that she did not tell her about the tennis racket as “it was embarrassing”. She said that there were no visible marks from the tennis racket.

54. [59]

    The complainant said that a “selfie” of her and Ms N was taken around 90 minutes after the applicant threw water on her. The complainant said that at the time she spoke to Ms N and the “selfie” was taken, she was “still very wet” because her “clothes were very wet”. She said that Ms N even said “your clothes are still wet”.

55. [60]

    The complainant then gave evidence concerning the incidents the subject of Counts 5 and 6. She said that on 26 October 2015, she and the applicant went to “Outback Jacks” again. She said that she was talking to the applicant about her “plans going overseas” and that “he wasn’t particularly happy that I wanted to go overseas”. She said that the applicant told her that he wanted to kill her and rape her and he “started to demonstrate how he wanted to kill” her. She said that he used a steak knife to demonstrate how he was going to cut her open. She said that he also told her that he wanted to bury her alive as well, and rape her. She remembered that she was “really scared”.

56. [61]

    The complainant told the applicant that she could not eat any more and the applicant said “Let’s go for a ride” and they drove to Rookwood Cemetery. The complainant said the applicant again accused her of cheating stating, “You deserve to die. You should go to hell”. She said that the applicant saw a man digging a burial site and then said he was going to put her there after he raped her and killed her and then buried her. The complainant said that she tried to talk to the applicant but he yelled at her “even more and more” and started choking her. She said that he was driving, so he used his left hand because the complainant was on the right side. She stated that the applicant repeated that he was going to rape her and kill her. She said that he then choked her, and started spitting on her face and pinching her leg again.

57. [62]

    The complainant was then asked what happened next and she said that “from memory he asked if he can have a blow-job”. She said “no” and the applicant “was okay with it”.

58. [63]

    The complainant then said that she and the applicant “started kissing”. She said that she “just did what he wanted” her to do because she didn’t know what he was “going to do next”. She said that the applicant took her clothes off. She was then asked the following questions:

59. [64]

    The complainant said that after that the applicant dropped her back to the station at Flemington and she went home.

60. [65]

    The complainant said that the next day her body “started turning blue”, she “started getting a lot of bruises” on her neck and she wore a scarf every day to work. She said that it was “embarrassing”. She also said that her “breasts were purple”. She said that she took photos of the bruising using her “old HTC phone” but the next time she saw the applicant “he wasn’t happy” that she took the photos, so he deleted them. She said that at the time the applicant said “Why did you take these photos? I don’t want anyone to know I did this” and she replied “Then don’t do it”. The applicant then said “I’m going to delete them, and don’t tell anyone I’m doing this to you”.

61. [66]

    The complainant said that she ultimately gave the HTC phone to the police for investigation.

62. [67]

    The complainant said that at that stage the sexual nature of her relationship with the applicant ended.

63. [68]

    The complainant gave evidence that in November 2015, there were two meetings between her and the applicant’s respective parents, the second of which was also attended by her and the applicant. She was then asked about extracts of Facebook communications between her and the applicant in November 2015 which became Exhibit E in the proceedings and which related to the meeting. The exchange of messages was in the following terms:

64. [69]

    The complainant said her response “Why couldn’t you just tell them – tell that to them” was not responsive to the proposition that they “never had sex”, rather was responsive to the applicant’s statement “they didn’t expect me to date someone like you”. She said that the applicant’s statement that “we never had sex” was a lie. She said that was not the first time the applicant said that they had never had sex, but “we’ve had sex so many times – and he knows that”.

65. [70]

    The complainant was then asked further questions concerning the complaint she made about the incidents on 7 April 2016 which were Counts 7 and 8.

66. [71]

    She said the day following the incidents she was on a work break with Ms B (they both worked at Kmart). The complainant told Ms B that she “fell down the stairs” and Ms B said “that doesn’t look like a fall”. She said that Ms B made that comment in relation to the bruising on her arm and there was also a bruise on her neck. She said that Ms B said “I don’t think you would fall like that” and that she then ended up telling her what had happened because Ms B had said “That [the bruises] looks like fingerprints” and “I would know if that’s a fall or not”. She said that she only told Ms B about the applicant hitting and chocking her. She did not tell Ms B “about the sexual assault part because it’s embarrassing” and she did not want anyone to know.

67. [72]

    The complainant said that her Aunties found out on the Sunday, 10 April 2016. She told her Aunt P about “everything else” except the sexual assault.

68. [73]

    At the outset of her cross-examination the complainant was referred to her statement in her second interview that her “intimate relationship” with the applicant commenced in 2014, which she later in that interview clarified as commencing in 2012. In cross-examination, she said that she had made an “honest mistake”. She then stated that it started in 2013.

69. [74]

    The complainant agreed that she broke up with the applicant in November 2015. However, she said that even after that, she and the applicant had a sexual relationship, stating that occurred “only for a month” in March 2016.

70. [75]

    The complainant agreed that there was no Facebook contact between her and the applicant from 30 October 2011 until March 2015.

71. [76]

    The complainant was asked about evidence that she gave in earlier proceedings which took place on 7 June 2017. In her evidence from that occasion, she said that she and the applicant were “sleeping together for five years”. She said that was true.

72. [77]

    In cross-examination, the complainant asserted that she mentioned the oral sex and sexual assault in the first interview on 9 April. She agreed that she said nothing about the incidents the subject of Counts 1-6 saying she did not speak about them because the interviewer only asked her to “speak about the one that happened in April”.

73. [78]

    She was then asked about the incident which took place at UTS. She agreed that there were students coming in to use the facilities and study and she did not know whether or not the room was locked. She said that both she and the applicant were naked and agreed that she had “full consensual sexual intercourse”, referring to penile-vaginal intercourse. It was suggested to her that this did not occur. The transcript indicates that there was no verbal reply to this question.

74. [79]

    The complainant agreed that she had not seen the applicant for two to three weeks prior to the incident occurring. The complainant was then asked about her relationship with the applicant up to June 2015. She agreed she was seeing him “on a casual basis” throughout 2014 and in early 2015. She agreed during that period that there was digital penetration and the applicant would touch her breasts. She denied that she would touch his penis. She was referred in that context to a statement she made on 22 July 2016 in which she said she would “touch his penis”. She agreed that was correct.

75. [80]

    The complainant agreed that she sent the applicant a link to an article headed “Sexual Science: How sex cures headaches, hangovers and heartbreak” which became Exhibit 1. She said that she sent it to him in September 2015.

76. [81]

    The complainant was then asked about the “Outback Jacks” incident. She agreed that there were three occasions on which water was thrown over her. She agreed that she was “drenched”. She agreed that she saw Ms N within 30 minutes of having the water thrown over her and agreed that a “selfie” was taken. That “selfie” became Exhibit 2.

77. [82]

    The complainant said that at the time, her relationship with Ms N was “very close”.

78. [83]

    The complainant was then asked about some Facebook entries which were tendered and became Exhibits D and E. She was referred to a Facebook message she sent to the applicant on 1 May 2015 that stated, “[H]ow am I going to get to bloody Strathfield, when all the taxies are booked and the train station [is] 20 minutes away. I’m sexually frustrated now.” and the applicant’s response, “[J]ust come find a way. I have a free house till 10.30. I am horny”. She was also referred to a subsequent message she sent, “Can you just fuck me in a park? I’m in the park sex?” and the response “Okay come to my house. There’s a park right next to it”. The Facebook conversation continued as follows:

79. [84]

    The complainant said the messages were “just a joke” and that she was “out with friends”. She said that she was “just joking” but the applicant “believed it”.

80. [85]

    The complainant was then referred to Facebook messages on 9 June 2015, where the applicant sent the complainant a message, “Fuck me”, and she responded “Yeah, it will happen. Not today. I’m going to work. Tomorrow???” to which the applicant responded “really need a fuck” and the complainant replied “Haha. If you’re really down for it. Come to mine. I actually start at 4.30”.

81. [86]

    The complainant said that she “wasn’t serious” and that the messages she sent were “just a joke”. However, she denied the suggestion that the applicant had not had penile-vaginal intercourse with her at all.

82. [87]

    The complainant was then referred to a Facebook message she sent on 15 September 2015 in which she asked the applicant if he was a virgin. She was asked why she asked that if the applicant had had penile-vaginal intercourse with her and said that it was because the applicant always thought he was a virgin. In that context, she described the applicant as “delusional” saying “he still thinks that he’s a virgin no matter what. He’s told everyone that he’s lost his virginity, and then when he comes to me, he tells me he’s not”. She agreed that she sent the Facebook message after the occasion the subject of Count 2. She also agreed that it was after incidents the subjects of Counts 1 and 2 that she sent him the link to the document “How sex cures headaches, hangovers and heartbreak”. The exchange was in the following terms:

83. [88]

    It was again suggested to her that her evidence regarding the sexual allegations was “a complete fabrication”. She asked “How is that”. She stated that she was “not denying anything”. She was asked whether she ever said to the applicant “Look, I love you dearly. We’ve got a good relationship. I can’t take the oral sex. If you persist with that, it’s all over. I’m moving on” and agreed that she never made such a remark and there was “not a word” of it in the Facebook messages.

84. [89]

    The complainant was then asked about the Facebook messages on 15 September 2015 in which the applicant said to the complainant that he loved her and she responded “I love you too”. She agreed that the entries concerned posting their relationship as a “Facebook official relationship post”.

85. [90]

    The complainant was then cross-examined about the Facebook messages to which I have referred at [67] above. She repeated her evidence that her remark, “Why couldn’t you just tell that to them” was not referring to the applicant’s statement “We never had sex”. She said that she was “not a good reader” and was dyslexic, so she reads “slowly”.

86. [91]

    In a passage of cross-examination relied upon by counsel for the applicant, the complainant affirmed her evidence as to the choking which was said to have taken place at the time of the incidents the subjects of Counts 7 and 8 and agreed that on the same night she sent a Facebook message to the applicant saying “Good night I love you”.

87. [92]

    The complainant said that when the applicant choked her in October 2015, he was using two hands but in April 2016 it was “only one hand”, the left hand. She affirmed that he was using his left hand when he was driving.

88. [93]

    The complainant was asked about a Facebook message which she sent to the applicant. She agreed that it was sent in October 2015. It referred to her statement, “Okay to be honest you’re actually the best boyfriend I have had” and said it was a lie. The context in which the conversation occurred is of some relevance:

89. [94]

    The complainant agreed that she had had discussions with the applicant in November 2015 about her seeing a doctor and she agreed to see a doctor who specialised in psychiatry or psychology. She was asked in that context about a Facebook message she sent on 10 October 2015 in which she said “Hey. I’m very sorry for my attitude and behaviour towards you. I know it wasn’t nice at all”, the applicant’s reply “Okay we are still never getting back together. I just don’t want to deal with your shit anymore” and her response, “Okay. I’m fine with that, I guess. Its [sic] for the best. I need a break. I’m emotionally unstabled [sic]. I wish you the very best in your future”. It should be noted that the balance of the Facebook exchange was in the following terms:

90. [95]

    The complainant said that she was emotionally unstable because the applicant abused her. She stated that he was “emotionally abusing”, “mentally abusing”, “physically abusing” as well as “sexually abusing” her. She said that is why she went to see a psychiatrist.

91. [96]

    The complainant said subsequently in her evidence that it wasn’t the applicant who wanted her to get help, but it was her parents and the applicant just asked because her mother had said “I’m going to take her to a psychologist” when their parents met.

92. [97]

    The cross-examination returned to the incident the subject of Count 1 (the UTS incident). It was suggested to the complainant that she went out onto a balcony outside the study rooms with the applicant and the complainant denied this saying that there was no balcony. The complainant also denied sitting on the balcony area at a table outside one of the classrooms where people were studying. It was put to her that they talked for about 15 minutes on the balcony and then the applicant said “I have a tutorial to go to”, and that after the tutorial had finished they went to KFC. She denied that saying it was a “lie”. However, she agreed that before she and the applicant went their own ways, they kissed.

93. [98]

    It was put to her that, after this interaction, over a period, she gave him consensual oral sex, sometimes at his request and sometimes without any prompting or questioning from it. She denied that saying it was a “lie”.

94. [99]

    In relation to Count 2, it was put to her that there was an argument outside the restaurant at the Ashfield restaurant incident. She agreed. She also agreed that the applicant accused her of lying to him, and at the end of the argument, he said that he did not wish to see her anymore. However, she rejected the proposition that nothing of a sexual nature occurred.

95. [100]

    It was put to her the incident the subject of Count 3 did not occur and she denied it.

96. [101]

    So far as Count 4 was concerned, it was put to her that no water was thrown over her nor was she hit with a tennis racket. She rejected both these suggestions.

97. [102]

    In relation to Counts 5 and 6, it was put to the complainant that there was no activity or conduct by the applicant against her that was against her will or without her consent. She rejected this, stating “no – it wasn’t with my consent”. She agreed that she did not go to the police or make a complaint, although she had said in relation to those incidents that she thought the applicant was going to kill her.

98. [103]

    In relation to Counts 7 and 8, the complainant agreed that she met the applicant at Strathfield Station at about 12.30. She agreed that he was in the family car, a Tarago, which had bucket front seats in the car which were separated by a centre console. She agreed that she was in the front left hand side of the car and the applicant was in the right hand side.

99. [104]

    The complainant denied that as they were driving, she placed her right hand on the inside of the applicant’s thigh or touched his groin area, and that after parking the car at Rookwood Cemetery, they were kissing and touching each other.

100. [105]

     The complainant denied that when the car was parked, the applicant got out and went away for a while and then came back and left her in the car. She denied that the applicant then said “look, I don’t want to see you again, this is not going anywhere” and that she then started crying and said “please give me another chance, I still love you”.

101. [106]

     The complainant denied that thereafter the applicant drove her to the nearest bus stop and he asked her to get out of the car and she refused. However, she agreed that he drove her to Flemington Station but denied that he again asked her to get out of the car. However, she agreed that she got out of the car and ran to the station because she was going to miss her train.

102. [107]

     It was suggested to her that on Friday 5 April she had a date with a person called Santiago and that she went on the date. The applicant agreed that she went on that date. She denied that the injury could have occurred on that date.

103. [108]

     The complainant was asked the following question concerning the applicant’s threats to kill her:

104. [109]

     Finally in her cross-examination the complainant was asked these questions and gave the following answers:

105. [110]

     In re-examination the complainant was asked about the incidents the subject of Counts 5 and 6. She affirmed her earlier evidence that she did not consent to digital penetration, but in relation to the penile-vaginal sex that occurred thereafter she consented but she “didn’t feel like [she] wanted to do it”.

106. [111]

     She affirmed in re-examination that the relationship between her and the applicant continued from “schoolies” in 2013 until March or April 2016.

107. [112]

     The complainant was referred to her evidence in which she agreed in cross-examination that there was nothing she put on Facebook where she explicitly said “no” to oral sex to the applicant. She was referred in that context to the following exchange of messages on Facebook:

108. [113]

     The complainant was recalled on the seventh day of the trial on the application of Queen’s Counsel for the applicant. She was asked if she knew a Mr M and a Ms C.

109. [114]

     The complainant agreed that she was at school with Ms C and was in the same social group. The complainant agreed that Mr M was “her boyfriend at that stage”. She said that both Ms C and Mr M were at “schoolies” week at Terrigal with her. She agreed that on three of the seven nights she went to Magenta, about 40 minutes from Avoca with some friends who included Ms C. She said that she did not recall Mr M being there.

110. [115]

     The complainant agreed that the applicant was not in that social group.

111. [116]

     The complainant was also asked about a school reunion which took place in 2017. It was suggested to her that she had a conversation with Ms C in which she said to Ms C, “Joe and I broke up”. She denied this.

112. [117]

     It was also suggested that Ms C replied “Yeah, I heard” and the complainant responded “I don’t know why he wants to break up with me. He’s so nice”. She denied this.

113. [118]

     She also denied that Ms C said “I don’t know” and that she replied “I hate him, he broke my heart”.

114. [119]

     In further re-examination, the complainant said that she met the applicant on the first night of “schoolies” week at a beach party at Terrigal Beach.

115. [120]

     In relation to the school reunion, she said that she could not recall having any conversation with Ms C, although she probably said “Hello. How are you”.

116. [121]

     She agreed that she raised the issues between the applicant and herself at the night with a friend Ms M but not with Ms C.

117. [122]

     The complainant said that Ms N was very close to Ms M, so Ms M heard from Ms N about the October incident. The complainant said that Ms M said to her “I heard you broke up with Joe” and she replied “Yep. That’s true”. The complainant said that she did not recall saying “I don’t know why he broke up with me”. However, she said that she told Ms M that she “hate[d] him so much” but said that she did not say that to Ms C. She said that she “didn’t even speak to [Ms C] that whole night”. She was then asked the following questions and gave the following answers:

118. [123]

     Ms N gave evidence that she had known the complainant since Year 8 or Year 9 at high school. She said that they both graduated high school in 2013 and after high school she attended UTS.

119. [124]

     Ms N said that she became aware that the complainant was enrolled at Notre Dame University. She agreed that she and the complainant would “text each other occasionally on social media applications” and that she saw her “at least once” during that period of time.

120. [125]

     She was asked about her contact with the complainant in October 2015. She recalled that she was telephoned by the complainant who said that she was in her area and that she was at Strathfield Park. The complainant asked her “Do you want to hang out?” She said that she replied “Okay. Sure”.

121. [126]

     Ms N said that she and the complainant agreed to meet at Wallis Reserve. She said the complainant told her that she happened to be in the area because “she was at coffee with Joe” (the applicant).

122. [127]

     Ms N said that when she met up with the complainant initially they “just greeted each other” because they had not seen each other “for a while” and then the complainant brought up her relationship with the applicant. She said that the complainant told her that they had “had a fight; that he splashed water in her face, and … problems they had together”. She recalled telling the complainant “[e]nd it with him. Just finish it off”.

123. [128]

     Ms N agreed that she understood that the complainant and the applicant were engaged at that particular point of time. Ms N said that the conversation took “under an hour” and towards the end of the conversation, she took a “selfie”. Ms N agreed that the complainant was smiling in the photograph but said that her demeanour throughout the time she was with her was “[h]alf distress[ed]. Half neutral, normal”. She stated that she did not notice any physical injuries or marks on the complainant nor did she observe that she was wet at all.

124. [129]

     Ms N agreed that she told the police when she gave her statement that in the first conversation over the phone, the complainant said “Joe kicked me out of his car in Strathfield”.

125. [130]

     Ms N agreed in cross-examination that she was not a close friend with the complainant and that she thought it was strange the complainant contacted her because she had not seen her since leaving school.

126. [131]

     She repeated that she saw no evidence of any water on the complainant’s clothing and no evidence of any injury. She agreed that she did not say in her statement that the complainant appeared distressed, although she reiterated that she thought she was. However, she agreed that there was nothing about her appearance that raised any alarm in her mind about the complainant’s distressed state.

127. [132]

     Ms N agreed that after she suggested to the complainant that she break up with the applicant, the complainant said that she wanted to marry him.

128. [133]

     In re-examination, Ms N was referred to a WhatsApp message between her and the complainant on 29 April 2015 but said that she did not remember the conversation and that “it was brief”.

129. [134]

     AFB gave evidence that in about July 2015 she became aware that the complainant was dating the applicant. She stated that she recalled that on Monday 31 August 2015 the applicant came to the front door to pick the complainant up to go out in the evening. She said that was the first time she met him.

130. [135]

     AFB agreed that on 13 September 2015 there was a family function, being a dinner at a dumpling restaurant in Ashfield which the applicant was invited to. She said that she recalled that the complainant received a call from the complainant and she left the restaurant and that when she returned, she was “no longer happy” and “upset”. She said that when AFB’s sister asked her “where is he”, the complainant did not answer.

131. [136]

     AFB said however, that when they returned home the complainant told her “he spat at me in the car” and she told the complainant “he is not good for you. Just stop talking to him”.

132. [137]

     AFB gave evidence that in about early November 2015, she made arrangements to meet with the applicant’s parents and that her and her husband met at the applicant’s parents’ house in Strathfield.

133. [138]

     AFB gave evidence that about a week later there was a further meeting between the complainant’s and the applicant’s respective parents. The complainant and the applicant were also present. She said that she recalled the applicant saying to the complainant “I don’t feel the same way as you feel about me”. AFB then said that she said “if you don’t feel the same way, then why would you put in on Facebook for everyone to see”. AFB then said that she asked the applicant “if you didn’t like her why would you have sex with her?”. She said that the applicant was “shocked” at the question and just looked at the complainant and said “what kind of person would tell her mum about her sex life?”. She said that the applicant and his mother then had an argument and he denied that they had had sex. She said that she turned to the complainant and said “so did you?” and the complainant replied “Yes we did”, saying it took place in the car. She said that the applicant’s mother “got really upset”.

134. [139]

     AFB said that the applicant’s father then asked the complainant “Did you really have sex?” asking whether she knew the difference between “oral sex and penetration sex”. She said that the complainant replied “Yes. Yes whatever”.

135. [140]

     AFB stated that the meeting ended by the complainant’s father saying to the complainant, “he does not love you” and the applicant saying to the complainant, “I don’t like you, I’m sorry for leading you on”.

136. [141]

     AFB was then asked about what occurred on the morning of 9 April. She said that she noticed the complainant had “bruises on her arm” so she asked her where did she get the bruises from. AFB said that she then said, “if you fell down the stairs why does it look like that”. She said that the complainant said that “she fell down the stairs at uni”. She said that she asked the complainant the same question later in the day and received the same answer.

137. [142]

     AFB said that on 10 April during the course of family prayers, the applicant started to cry. She said that the complainant told her that the applicant picked her up at Strathfield Station, they drove to the cemetery and the applicant said to her that he had “a shovel, in the back of his car, and he would bury her”. She said that she asked the complainant why she didn’t “get out of the car” and the complainant said “she couldn’t because he took her top off”. She said that the complainant then told her that the applicant “got really upset, so he started hitting her … saying ‘I’m doing this because I love you’”. She said that the complainant told her that the applicant “calmed down for some reason and he dropped her at the station”. In cross-examination, AFB agreed that the complainant had not said anything about a sexual assault.

138. [143]

     In cross-examination, AFB was asked if she recalled whether at the second meeting between the parents, the applicant’s father said to the complainant “[d]id Joey put his penis in your vagina?” and she said that she did not remember that being said. She agreed that she arranged for the complainant to see a psychiatrist or a psychologist “probably … in November” 2015.

139. [144]

     Aunt P was an aunt of the complainant.

140. [145]

     She gave evidence that she was at a family function on 10 April 2016 to celebrate one of her nephew’s christenings. She said that the complainant was also present and that she observed that the complainant “had multiple bruises on her right arm”. She said that there were three bruises and it “almost looked like a hand was on her arm, or a handprint”.

141. [146]

     She said that thereafter, she had a conversation with the complainant who initially told her that she fell down the stairs but about 10-15 minutes later she said that “her ex-boyfriend had hit her”. She said that the complainant told her she was texting him on the day when she received the bruises and he asked to meet with her. She said that the complainant said that “they drove to Lidcombe, outside the cemetery” where “he called her a slut and a whore” and “when she tried to get out of the car he grabbed her and started punching her arms and legs”. She said that the complainant told her that she eventually got out of the car and ran to Lidcombe Station. She said that she was unable to see any other mark on her body as “she was covered up” with a “long black skirt on”.

142. [147]

     Aunt P said that the complainant told her that “she was too scared to report it to the police”. Aunt P said that she told the complainant that “for the safety” of the complainant’s family, she “need[ed] to report it”. She also told her that the complainant needed to speak to her mother about it.

143. [148]

     Aunt P was shown a statement that she made to the police. She said that she recalled from reading the statement that the complainant also told her about choking around the neck. She said, having refreshed her memory, that she recalled seeing marks around the complainant’s collarbone and neck but “[t]hey weren’t as visible” (presumably referring to the bruising on the arm).

144. [149]

     In cross-examination, Aunt P agreed that she did not remember being told about the choking or the marks around the complainant’s collarbone until reading her statement. She agreed that she got the impression from the complainant that the complainant was running to Lidcombe Station to get away from the applicant.

145. [150]

     Ms B gave evidence that she had known the complainant for about three or four years. She said that she knew the relationship between the applicant and the complainant was “on and off occasionally”. She said that the complainant had told her that over a period of “probably about two years”.

146. [151]

     Ms B and the complainant worked together at Kmart. She said that halfway through her shift, she saw the complainant in the fitting rooms and noticed she had “a bruise on her right arm”. She said that she asked the complainant “what happened” and the complainant said “something along the lines that her boyfriend had grabbed her arm”. Ms B said she told the complainant that “she should probably report it, to the police”.

147. [152]

     Ms B said that the complainant told her that the applicant “had taken her from Strathfield … and then took her into the car and drove her to a grave yard”. She said that the complainant told her that was when the applicant “grabbed her arm and then punched her in the leg”. She said that there were no visible bruises on the complainant’s leg.

148. [153]

     Ms B offered to go with the complainant to the police. On the following morning, they went to Quakers Hill Police Station with another friend, Ms D

149. [154]

     Ms B said that she was present when the police interviewed her on that day (9 April 2016). She said that the complainant “started saying that her boyfriend grabbed her from Strathfield and took her to a graveyard”. Ms B said that the complainant said that “[h]e grabbed her arm, punched her in the leg … and then she went on to say that he had a shovel in the boot and threatened her with it”.

150. [155]

     Ms B stated that she recalled the complainant telling the police officer that her boyfriend had requested that she perform oral sex.

151. [156]

     Ms B said that after the interview, they left and went to a local park and had a chat and she remembered the complainant “confirming that … she felt pressured to perform oral sex on her boyfriend”. Ms B said that the complainant appeared “quite embarrassed” when she disclosed this. Ms B told the complainant that was sexual assault and the police should be told. She said that they went back to the police station and a female detective escorted them into the same interview room, but she had to leave “before they started anything”.

152. [157]

     In cross-examination, Ms B stated that the complainant was “hesitant” to go to the police because she thought “her mum would find out”.

153. [158]

     Aunt B gave evidence that she was the aunt of the complainant. She said that around mid-2015, the complainant told her that she had “started dating this boy named Joe”. She recalled in August that there was a family gathering at a dumpling restaurant in Ashfield and she said to the complainant “[w]ell why don’t you invite Joe”. The complainant said that she would invite the complainant.

154. [159]

     Aunt B said that she recalled that whilst they were waiting at the restaurant, the complainant said that the applicant was going to be late and after the family was seated the complainant and the applicant had not yet come in. She said the food was served and about 45 minutes later, the complainant arrived and Aunt B noticed that she looked “very upset”. Aunt B said the complainant’s “eyes were teary”. She said that she “had the impression that she didn’t want to talk about it at all”.

155. [160]

     Aunt B was then asked about the christening on 10 April 2016. She stated that she recalled that before the ceremony she sat next to the complainant and “saw bruises on her neck”. She described the bruises as looking “like finger marks” and they were a “brown yellow colour”. She said that she asked the complainant what happened and at first she refused to tell her. Aunt B said the complainant ultimately said that “she fell down the stairs” and Aunt B replied “I’m not stupid”. Aunt B said thereafter, there was a reception at Flemington at which point the complainant had taken her jacket off and she could see “more bruises”, one “on her other shoulder” and one “on the top of her arm” which were “about the same colour”. Aunt B said that the complainant then told her that she went from the city to Strathfield and saw the applicant there, and the applicant “asked to speak to her privately … and took her in his car to a cemetery, and from there he threatened her and he choked her and he was shaking her”. Aunt B recalled the complainant saying that the applicant had said that “he was going to put her in one of the graves”.

156. [161]

     Aunt B also stated that the complainant told her that she had spoken to some of her friends at Kmart and that she needed to go to the police station the next day.

157. [162]

     Subsequently in her evidence, Aunt B stated that she recalled that the complainant had also told her that she had gone to the police station the day before.

158. [163]

     In cross-examination, Aunt B agreed the complainant said that the applicant had choked her with both hands.

159. [164]

     JAE gave evidence concerning the family meal in August 2015. He said that after they reached the dumpling restaurant in Ashfield, the complainant left to go and find the applicant. He recalled that she was gone for “over half an hour” and he stated that when she returned, she was “a little distraught”, “very upset” and “quite frustrated and flustered in her appearance”.

160. [165]

     JAE was then asked about the meetings that he and his wife had with the applicant’s parents in November 2015. He agreed that the applicant and the complainant were present at the second meeting. He said that he recalled the applicant’s father asking the complainant if she had a relationship with his son and she replied “yes”. He said that the applicant at the time “denied” that he had such a relationship.

161. [166]

     JAE also recalled that “the subject of a sexual relationship had popped up” and the applicant’s father was questioning the applicant as to whether he had “a sexual relationship” with the complainant and the applicant was “denying that he was in a sexual relationship” with the complainant. He also recalled the applicant’s father questioning the complainant as to whether she had a sexual relationship with the applicant and she said “yes, they were in a sexual relationship” and there were questions as to what kind of relationship they were in. He recalled that the complainant mentioned the sexual relationship “was taking place in the family car” and the applicant’s father was “very upset” because of that.

162. [167]

     JAE said that there were no specifics of the type of sexual relationship they were in. He recalled the complainant saying that “she was in love” with the applicant and “they were to be engaged”. He said that he recalled the applicant’s father asking the applicant whether he was in love with the complainant and the applicant’s answer was “no”.

163. [168]

     JAE agreed that at the end of the meeting, the parents agreed that it was best if the applicant and the complainant did not have any contact with each other again.

164. [169]

     JAE was then asked about the incidents in April 2016. He said that on the occasion of the baptism ceremony, he observed “heavy bruising” on the complainant’s right arm near the bicep area which “caused concern”.

165. [170]

     JAE said later that evening that the family had a family prayer and when it was the complainant’s turn to pray she “broke down in tears”. He said that he took his sons to bed and came back and his wife was asking the complainant “[d]id he hurt you?”. He said that the complainant admitted to seeing the applicant again and that he had hurt her. He said that whilst she was explaining what occurred, he “decided to take pictures of the bruising on her arm and around her neck and on her leg”.

166. [171]

     JAE agreed that the complainant told him that the applicant had picked her up at Strathfield and taken her to Rookwood Cemetery where the physical assault occurred. JAE said that he “wasn’t as focused as much” because he “was already angry” but he recalled that she explained that the applicant grabbed her arm “really hard” and threatened her by saying he had “a shovel and a gun in the back”. He said he “found out later on” that there was a “sexual attack” as well.

167. [172]

     JAE confirmed that the complainant showed him bruises on her right arm near her bicep, red marks on the front of her neck and bruises on one of her legs on the outer thigh.

168. [173]

     In cross-examination, JAE stated that the type of sexual activity which was taking place was not mentioned during the second meeting. He said that he did not remember the applicant’s father asking the complainant “Did Joe put his penis in your vagina?” and the complainant responding “No”.

169. [174]

     A recorded interview with the applicant which took place on 10 April 2016 was tendered through Detective Senior Constable McLaughlin..

170. [175]

     Detective McLaughlin was referred to the statement by the applicant in that interview that on the night of 7 April, the complainant was “trying to contact him” and “[s]ending him messages along the lines of ‘I love you’”. He stated that he was not able to find any such messages from her.

171. [176]

     Detective McLaughlin gave evidence that the police were able to extract text messages from the complainant’s and the applicant’s phones. He gave evidence that there were no text messages between them on 9 April. He also referred to a download of Snapchat messages showing that there were none before 9 April and the earliest one on 9 April was a discussion between the complainant and a person called Rachel.

172. [177]

     Detective McLaughlin said that the complainant and the applicant also used WhatsApp. There were no WhatsApp messages from the complainant to the applicant on that day but on 7 April up to about 12.30pm there was some contact both ways between the applicant and the complainant via voice calls made through WhatsApp. He said that there was no communication between the complainant and the applicant on WhatsApp after 12.30pm.

173. [178]

     Detective McLaughlin said that the next attempt to make a call through WhatsApp was on 9 April. He said that a call was made from the applicant to the complainant at 4.41pm and there were a series of missed calls between them. He also stated that there was a message from the complainant to the applicant on WhatsApp at 4.37pm on 9 April “[a]re you ignoring me?”, and then one minute later, another message from the complainant, “[j]ust say so, so I can move on. Okay?”

174. [179]

     In cross-examination, Detective McLaughlin was asked to assume that on 7 April, the complainant sent an applicant a message to the effect of “Good night. I love you”. Detective McLaughlin stated that he could not find such a message.

175. [180]

     The applicant was interviewed on 10 April 2016. The applicant’s interview thus took place between the first and second electronic recorded interviews given by the complainant and at a time when the specific allegations of sexual assault said to have taken place on 7 April had not been reported to the police.

176. [181]

     The applicant was told that the police were “investigating an alleged domestic assault”. He was then asked about what occurred on 7 April 2016 at Rookwood Cemetery. He said that he went to Rookwood Cemetery because it was the anniversary of his grandmother’s death. He then stated that the following occurred:

177. [182]

     It was then suggested to the applicant that he and the complainant were in a relationship for about five years at high school. He denied this saying that he had only known her for two years. However, he agreed that she was an ex-girlfriend.

178. [183]

     The applicant stated that he had known the complainant for “not even … a year and a half” and they had “been together for two months” and then during the last couple of weeks he and the complainant were not seeing each other. He stated that they had “a disagreement”, their “parents got involved” and they “came to a mutual agreement” that they would not contact each other. The applicant said that the complainant got in contact with him about three months later, begging him to talk to her and he “felt sorry for her” and “gave her a chance” but “nothing changed”. The applicant then told her that they had to stop, they had made an agreement and “she got upset and then went from there”.

179. [184]

     The applicant denied that he made any threats to the complainant on 7 April. He said that he told the complainant that he did not want to see her anymore. He stated that he “patted her on the shoulder” and told her to get out of the car. He said that she did not get out of the car and he didn’t touch her after that.

180. [185]

     The applicant then volunteered that “there were some sexual things before that” but he said that he did not know if the police “wanted to know about that”. He was told that there had been “another allegation” but at the moment they were “just looking into a regular assault”.

181. [186]

     The complainant’s interview of 7 April was then played to the applicant and he made comments on it from time to time. In the course of it, he commented that he was right-handed and asked rhetorically “how do you choke someone when they’re driving”. He then made the following comment:

182. [187]

     The applicant subsequently commented that it was “impossible” to choke her with two hands whilst he was driving and that he was “not very left-hand co-ordinated”. He stated that the bite marks on the complainant’s neck were from him but they were “from the sexual things” they were doing which she consented to.

183. [188]

     The applicant denied that he squeezed the complainant’s right arm with his hand, saying “it definitely didn’t happen”. He stated that the only thing he “could have done was … swear at her” and he was “pretty aggressive and forceful” because he “was sick of it”. He said that he was just telling her to get out of the car and she wouldn’t get out of the car and that’s when he “tapped her” to get out then he took her to the station.

184. [189]

     The applicant said that he was “happy to accept that I punched her on the leg if there are marks on her leg, ‘cause [sic] there’s definitely no marks on her leg”. He said that he tapped her on her thigh because she was wearing “really short jeans” and said “Can you hop out of the car, please? I don’t want to take you home”. The applicant said that the complainant “got really upset” because she did not want to leave the car.

185. [190]

     The applicant denied that he put his hands on the complainant’s neck and denied saying that he was going to bury the complainant alive and that he told her that he had a knife with him and a shovel in the back of the car. He said that the complainant’s “logic doesn’t make any sense” because if he did say that when he was telling her to get out of the car, why did she stay in the car with someone that is causing her to be scared for her life.

The defence case

1. [191]

   Mr M gave evidence that he knew both the applicant and the complainant. He attended schoolies week at the same time as each of them.

2. [192]

   Mr M said that prior to going to the schoolies week he had a conversation with the complainant about meeting her there. He said that a relationship between them began at schoolies week at Terrigal after he asked the complainant out. He said that during the “schoolies” week, he saw the complainant every day.

3. [193]

   Mr M said that he never saw the applicant with the complainant during that time. He said that he was with the complainant for the “majority of the day” and for the “majority of evenings as well”. Mr M said that the complainant did not stay at the same accommodation as he did.

4. [194]

   In cross-examination, he accepted that he did not spend every evening with the complainant and that they would each go back to their respective accommodation at night. He accepted that when they left each other’s company, he could not account for her whereabouts.

5. [195]

   Ms C said that she went to high school with the complainant. She said that when they left school, they were in the social group and they both went to Avoca for “schoolies” week.

6. [196]

   Ms C said that she knew the applicant and held him in high regard.

7. [197]

   Ms C said at “schoolies” week, 14 girls stayed in a large house. This group staying at the large house included the complainant but did not include the applicant. She said that the complainant was with her throughout the period but she did not recall seeing the applicant.

8. [198]

   Ms C was asked about the allegations made against the applicant and said she found them out of character. She said that she had known him for 10 years, although she had “not [seen him] since school as much” but they still messaged “every now and then”. She said that the applicant’s reputation was that he was respectful towards the opposite sex.

9. [199]

   Ms C was asked about a conversation she had with the complainant in January 2017. She said they were at a school reunion and were catching up and the complainant said to her “oh, you heard Joe and I broke up”. She said that she replied “yep” and the complainant said “I don’t understand - he was so nice to me” and she replied “I don’t know babe” and then the complainant said “I hate him; I - I don’t understand”. She said that the complainant told her he broke her heart.

10. [200]

    In cross-examination she agreed that she was unable to account for the applicant’s movements during the whole of schoolies week. However, she rejected the proposition that the conversation in January 2017 was with a girl named Rachel rather than her.

11. [201]

    Mr Doueihi gave character evidence. He said that he had known the applicant for eight to nine years. He said that whilst at school, he saw the applicant every day and that they were “close mates since then”.

12. [202]

    He described the applicant as “a gentlemen” and stated that he found the allegations out of character. He said that the applicant had a good reputation.

13. [203]

    Mr Saliba stated that he was the Sales Manager for Mercedes Benz at Peter Warren situated at Warwick Farm.

14. [204]

    He gave character evidence on behalf of the applicant. He said that whilst the applicant was studying, he worked part-time for him and is continuing to do so. Mr Saliba said the applicant had been working for him for over two years and that he or other staff had never had any issue with him.

15. [205]

    Mr Saliba described the applicant as “very respectful at work” and that the allegations were 100% out of character.

16. [206]

    Mr George Daaboul was the father of the applicant. He was asked about the second meeting which took place between the complainant and the applicant and their parents. He said that during the meeting the complainant was saying that she and the applicant “had slept together and had sexual relationships together” whilst the applicant was denying it. He said “to clear the air”, he specifically asked the complainant by “sex” did she mean “Joe putting his penis inside her vagina” and her reply was “no”.

17. [207]

    He said that at the meeting all four parents agreed that the complainant and the applicant should not see each other or contact each other anymore.

18. [208]

    Mr Daaboul agreed that his family had a number of cars and neither a knife nor a shovel was kept in any of them.

19. [209]

    It was suggested to Mr Daaboul in cross-examination that he was concerned about his son having sex outside marriage. He stated that he was “more concerned that the parents and the daughter had come and made some serious allegations”. He said that he “was prepared to listen to what they had to say before drawing any judgment or any conclusions”. He stated the comments that he made “were made after careful consideration and listening to, for want of a better a word, the evidence that was being put forward that night in the discussion, and the discussion was clearly only about the sexual relationship between my son” and the complainant.

20. [210]

    It was suggested to him that when he asked the question “Did Joe put his penis in your vagina”, the complainant actually said yes. He answered “You may put that question to me but that is not the answer the young lady gave”.

21. [211]

    It was put to him that his son was having sex in the family Tarago. He said that he did not recall discussions about where the sex happened. It was suggested to him that the complainant told the group that the places they had sex was in the family vehicles, that is the Tarago and also the VW, and also at university. He said that the family did not have a VW and it was suggested to him that it was a Golf and he said that the family had no Golf at that stage, and that it was “not true” that the complainant told the group they were having sex at university.

22. [212]

    Mrs Meray Daaboul was the mother of the applicant. She said she had six children, the younger two of which had intellectual disabilities. She said that the applicant had elected to live at home and assist in looking after the two younger boys.

23. [213]

    She was asked what she recalled about the meeting in November and answered as follows:

24. [214]

    Mrs Daaboul was then asked whether something was said about a phone and she said that the complainant’s mother told her that the applicant had given the complainant his old phone and when she asked to see the phone, she told her that that wasn’t the applicant’s phone and that she had never seen this phone with the applicant. She said the complainant then told her mother that she bought the phone and “smashed the screen to make it look like an old phone” and told her mother that it was the applicant’s old phone.

25. [215]

    She was cross-examined on the second meeting and she was asked if she recalled the complainant’s mother saying to the applicant “If you didn’t like her, why would you have sex with her?” She stated that she did not remember that being said. She agreed that the applicant asked the complainant “What kind of person would tell her mum about her sex life?” Mrs Daaboul stated that the applicant denied that he had sex with the complainant and did not remember whether that conversation was in Arabic, whilst the complainant told her mother that they had sex. She said that she recalled asking where the complainant where they had sex and the complainant said in the car.

26. [216]

    It was put to her that her husband asked the complainant “Did he put his penis inside you?” and the complainant answered “yes”. She said that the complainant said “no”.

Additional evidence

1. [217]

   In addition to the evidence to which I have referred above, it should be noted that on 14 August 2015 a lengthy and somewhat hostile Facebook exchange occurred between the complainant and the applicant in the course of which the applicant indicated to the complainant that he did not wish to continue his relationship with her. During the course of the exchange the following remarks were made:

2. [218]

   In her examination in chief, the complainant gave the following evidence concerning a conversation which took place shortly after the Ashfield restaurant incident. The evidence which dealt with the meaning of the expression “hooked-up” was in the following terms:

3. [219]

   It appears from this that, at least so far as the complainant was concerned, the expression “hooked up” was not equivalent to having penile-vaginal sex.

4. [220]

   Reference should also be made of the photographs of the complainant’s arm, leg and neck which were taken at Quaker’s Hill Police Station on 9 April and 11 April 2016. The photographs tendered, which included blown-up versions, showed bruising to the right arm, bruising to the right thigh and leg and bruising not inconsistent with choke marks around the neck.

Ground 1

1. [221]

   The applicant submitted that the verdict of guilty on Count 8 could not stand with the failure by the jury to agree on Counts 1 to 7, particularly the latter count. Queen’s Counsel for the applicant referred to what was said by Simpson J in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [135] and by the plurality in MacKenzie v R (1996) 190 CLR 348; [1996] HCA 35 at [29] on this issue.

2. [222]

   It was submitted that the alleged inconsistency was highlighted by the failure to convict on Count 7. Queen’s Counsel for the applicant submitted that the complainant’s evidence was that “there was a choking for five minutes”. He submitted that the evidence of the complainant was that by reason of the choking, she had reached a point where she was unable to resist further, so that if the evidence of the complainant was accepted, the elements of Count 7 were made out. He submitted that in those circumstances there was “no logical reason” for differentiating between Counts 7 and 8.

3. [223]

   The material relied upon by Queen’s Counsel for the applicant in demonstrating that the complainant’s evidence was that she was incapable of resistance was her statement in her interview of 11 April that “I didn’t want to go through it again, so I just did it".

4. [224]

   In his written submissions, the applicant accepted that the jury could have failed to convict on Counts 1 to 6 because of the lack of corroboration of those elements, whilst with Count 8, the jury could “more comfortably accept” the complainant’s evidence because of the content of the photographs. In addition, in relation to Count 4, Queen’s Counsel for the applicant referred to the inconsistency in the evidence of the complainant and Ms N concerning the allegation that the applicant threw water on her and the fact that Ms N said that before meeting the complainant in October 2015, she had not seen the complainant since leaving high school. It was submitted that these difficulties did not apply with respect to Count 7.

5. [225]

   Queen’s Counsel for the applicant submitted that the principles applying to inconsistent verdicts could be applied in cases where the jury failed to reach agreement on one or more of the counts. He referred to what was said by Rothman J in Walker v R [2019] NSWCCA 4.

6. [226]

   The Crown submitted that in dealing with inconsistent verdicts, “the focus of the inquiry is upon an explanation, not for the convictions, but for the acquittals” citing Simpson J in TK v R at [128] and [130]. It was submitted that in the present case, there was no acquittal upon which to focus. It was submitted that in these circumstances the principles concerning inconsistency of verdicts had no application.

7. [227]

   The Crown pointed out that all that could be concluded from the failure to reach a decision was that “the jury were unable to unanimously or by majority reach a decision that the elements of a particular charge were proved beyond reasonable doubt”. It was pointed out that “where the Crown relies almost entirely on the evidence of a complainant, mixed verdicts of guilty and not guilty do not, of themselves, result from a finding by the jury of the complainant’s inherent unreliability”, but “the verdicts of not guilty may arise simply because of the burden and the standard of proof”. In that context, in the case of a failure to reach a verdict, it cannot be said that “any juror, let alone the jury itself, reached an adverse decision concerning the reliability of the complainant”.

8. [228]

   So far as the inconsistency between the conviction on Count 8 and the failure to reach a verdict on Count 7 was concerned, the Crown at the hearing pointed to the fact that to establish the offence the subject of Count 7 it was necessary to prove beyond reasonable doubt that the applicant choked the complainant so as to render her unconscious, insensible or incapable of resistance and did so with the intention of enabling him to commit another indictable offence. The Crown pointed out that the alleged choking took place both while the applicant was driving the car and during the course of the offence the subject of the charge and that both were relied on at trial. The Crown submitted that it was open to the jury to be satisfied that the choking occurred, whilst not being satisfied that it was done with the intention of committing an indictable offence. It was submitted that for the purpose of Count 8, all the jury had to be satisfied of as a circumstance of aggravation was that the applicant committed an assault upon the complainant.

9. [229]

   The Crown however appeared to accept that the Court could take into account in considering the question of unreasonable verdicts the fact that the jury was unable to reach a verdict on all other counts.

Consideration

1. [230]

   Although for the reasons I have set out below I have considerable doubt as to whether it is appropriate, I have considered this ground on the basis that the principles relating to inconsistent verdicts can apply to circumstances where a jury convicts on one count whilst failing to reach a verdict on other counts.

2. [231]

   The principles to be applied in circumstances where verdicts are challenged on the ground of inconsistency are set out in the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen at 366-368. So far as relevant, their Honours made the following remarks:

3. [232]

   In the present case, the different results in relation to Charges 1-6 compared with Count 8 can be readily explained. In the case of Count 8 unlike the earlier counts, the jury had the corroborative evidence of the complaints made by the complainant shortly after the alleged assault and the photographs, which it was open for them to conclude were consistent with the assault alleged. Thus, a logical explanation for the difference was that even if the jury did not have doubts about the complainant’s credibility generally, they (or some of them) were not prepared to conclude beyond reasonable doubt that each offence was committed without the benefit of corroboration and thus, they were prepared to be so satisfied in respect of Count 8. As was pointed out by Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] that “where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count” and that “[i]n the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of the complainant”. They pointed out that this did “not necessarily involve a rejection of the complainant’s evidence” (see also [85]-[86]).

4. [233]

   The failure to reach a verdict in respect of Count 7 presents more difficulty as the same matters of corroboration that were available in respect of Count 8 were available in respect of this count. However, the elements of s 37(2) of the Crimes Act 1900 (NSW) (the charged offence) requires the jury to be satisfied beyond reasonable doubt, first, that the choking was such as to render the victim unconscious, insensible or incapable of resistance and, secondly, that it was done with the intention of enabling the offender to commit another indictable offence. The jury may well have been satisfied that the choking occurred but not be satisfied beyond reasonable doubt that it had the effect on the complainant required by the section, or that the applicant at the time of the choking had the requisite intention to commit another indictable offence.

5. [234]

   It follows that there was no inconsistency in the sense described in the authorities.

6. [235]

   Notwithstanding what I have said above, I have considerable doubt that the principles dealing with inconsistent verdicts can apply where the so-called inconsistency is between a failure to reach a verdict on a particular count and a verdict of guilty on another count, except in very limited circumstances.. There is a powerful body of authority which suggests that the principles cannot apply in those circumstances, including the dictum of Callinan J in Osland v R (1998) 197 CLR 316; [1998] HCA 75 at [232] and decisions of the Court of Appeal in Queensland and the Full Court of Western Australia and South Australia: R v DAL [2005] QCA 281 at [2], [5]-[6], [21], [23], [32]-[33]; R v CBF [2012] QCA 294 at [16]; R v CX [2006] QCA 409 at [33]; R v Garrett [2009] QCA 300 at [35]-[36]; Miller v The Queen [2002] WSCA 211; R v R, GJ (2009) 105 SASR 506; [2009] SASC 371 and a majority of this Court in PA v R [2015] NSWCCA 18.

7. [236]

   There are a number of matters which support the approach that the principles dealing with inconsistent verdicts cannot apply in circumstances where there is a failure to reach a verdict on a particular count and a verdict of guilty on another count. First, as McPherson JA pointed out in R v DAL at [6], a failure to reach a verdict is not a verdict at all and logically there is no inconsistency. As Simpson J (as her Honour then was) pointed out in R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128] that in considering whether the reasons for the inconsistency can be ascertained without resort to doubts about the complainant’s credibility, “the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals”. If in fact there are no acquittals, it is difficult to see how the principles could apply.

8. [237]

   Second, to the extent that inconsistent verdicts are sought to be relied upon as a way of demonstrating that the jury has acted unreasonably, the fact that different members of the jury have not been satisfied of at least one particular element of the offence does not necessarily throw the integrity of the verdict of guilty into question because as Keane JA (as his Honour then was) pointed out in R v DAL, “it does not imply that the jury as a whole entertained a reasonable doubt” about (in this case) the reliability of the complainant’s evidence. Keane JA summarised the position in the following terms at [23]:

9. [238]

   Third and importantly, consideration of inconsistency between a guilty verdict and a failure to reach agreement necessarily involves speculation as to why particular members of a jury reached a particular view as distinct from consideration of why a verdict of guilty on one count and an acquittal on another are inconsistent. It is impossible for a Court to undertake such speculation and undesirable that it attempt to do so.

10. [239]

    The three matters to which I have referred to at [236] to [238] above demonstrate that a failure by the jury to agree on some counts does not, of itself, lead to the conclusion that the jury could have had a doubt concerning the complainant’s credibility such as to render another count unreasonable.

11. [240]

    However, there may be cases where quite apart from any question concerning the complainant’s credibility, a conviction on the one hand and a failure to agree on a verdict on the other, is an affront to logic and common sense and suggests a compromise by the jury of its duty. This was recognised by Keane JA in R v DAL. In that context, his Honour after citing the passage from MacKenzie v The Queen to which I have referred at [231] above made the following remarks:

12. [241]

    In Pillay v R; Toganivalu v R; Dansey v R [2014] 43 VR 327; [2014] VSCA 249 (Pillay), the jury convicted each of the appellants on a charge of indecent assault, whilst failing to agree on a charge of rape arising out of the same incident. The Court of Appeal concluded at [30] that there was no explanation for the differing results “apart from some form of irrational and improper compromise”. In that context, the Court cited the following passage at [22] from the judgment of the English Court of Appeal in R v Formhals [2014] 1 WLR 2219 at [27] with approval:

13. [242]

    Notwithstanding those comments, the Court stated that it was prepared to deal with the matter in the same manner as it was dealt with by the Full Court of the Supreme Court of South Australia in R v R, GJ. In that case Kourakis J, with whom the other members of the Court agreed, observed at [32] that there was “very little if any force in the proposition that a verdict of guilty is rendered illogical by the failure of a jury to reach a guilty verdict on another count within the same period of time”, but he was prepared to deal with the appeal as if the jury had returned a verdict of not guilty on the second count.

14. [243]

    In reaching its conclusion in Pillay, the Court of Appeal stated at [25] that it “border[ed] upon the fanciful” that the complainant would agree to participate in “a full-fledged orgy with three total strangers, including having oral sex with one of them, but draw the line at having one of those men with whom she was then having consensual sexual intercourse ejaculate upon her”. The case plainly was an exceptional one. Subsequently in Tukuafu v The Queen [2014] VSCA 345, the Victorian Court of Appeal noted at [26] without elaboration, that in Pillay, the Court determined that there was no logical explanation for “the outcome of the jury’s deliberations ‘apart from some form of irrational or improper compromise’”. However, the Court emphasised at [25] that “[a] failure to reach a verdict should not be equated with an acquittal” and cited at [27] the passage from R v DAL to which I have referred at [237] above with approval.

15. [244]

    In Walker v R [2019] NSWCCA 4 Rothman J, without consideration of the authorities to which I have referred, appeared to accept at [139]-[140] that the inconsistency principles could apply in some cases where the relevant inconsistency was a failure to reach a verdict. However, the other members of the Court did not deal with this issue.

16. [245]

    In Crofts v R [2018] VSCA 197 the appellant was found guilty of a charge of attempted anal rape but the jury failed to agree on a charge of vaginal rape. The alleged acts occurred in close temporal proximity. Priest JA in dissent reviewed the authorities on this point. His Honour following Pillay found at [47] that it was “impossible to see how any rational jury could logically have been satisfied beyond reasonable doubt as to the lack of actual consent on the first charge, whilst at the same time failing to be satisfied unanimously on that same issue on the second charge”. In those circumstances, he concluded at [48] that “the verdict on the first charge smacks of compromise”. However, his Honour considered the question of whether the inconsistency principles could apply in cases of a failure to reach a verdict a somewhat “barren” issue. His Honour made the following remarks:

17. [246]

    Hargrave JA at [82] emphasised that “a failure to reach a verdict should not be equated with an acquittal”.

18. [247]

    Weinberg JA at [108] noted that “the Crown did not challenge the correctness of Pillay” and accordingly, proceeded upon “the basis that an inconsistency between a verdict of guilty, and an inability to arrive at a verdict on a different, but closely related charge, can, in some cases, give rise to an inconsistency of a kind that would render the conviction unsafe”. However, he stated at [119] that “[u]nlike Pillay, the jury … were confronted not just with one issue to resolve, but also to consider, quite separately, different evidence that bore upon each of the two charges”. He concluded at [136] that “[t]he combination of different defences, and different evidence in relation to each of the two charges” meant that the conviction and the inability to agree on the other charge “could stand together without amounting to an affront to logic and common sense”.

19. [248]

    Although it is not necessary to finally determine the issue in the present case, it seems to me that it is possible for the question of inconsistent verdicts to arise in circumstances where there is a conviction on one charge and a failure to reach agreement on another where the difference is incapable of any logical explanation. An instance would be where there was the same evidence as to the elements common to each charge and no dispute that the uncommon elements were made out. In such a case, a conviction on one and a failure to reach a verdict on the other could, in my view, be said to be illogical and unreasonable. However, the principles can have no application when, as in the present case, the circumstances of each charge and the evidence relating to them were different. In particular, it could not be said that a failure to reach a verdict on one charge cast doubt on the complainant’s credibility such as to render a conviction on a different charge dependent on the acceptance of her evidence as illogical and unreasonable.

20. [249]

    It follows that this ground has not been made out.

Ground 2

1. [250]

   The applicant referred to eleven matters which he submitted cast doubt on the credibility of the complainant. Without doing any injustice to the submission, they may be summarised as follows.

2. [251]

   The first matter was the absence of complaint concerning Counts 1 to 6 and Count 8 in the complainant’s first police interview on 9 April 2016.

3. [252]

   The second was the improbability of the sexual abuse in light of the applicant’s suggestions that the complainant seek medical help. Queen’s Counsel for the applicant submitted that if the applicant was abusing the complainant, it was inherently unlikely that he would advise her to get medical help.

4. [253]

   The third matter was described as the “staggered and inconsistent nature” of the complaints. The applicant referred to the fact that the complainant told her aunts that she fell down the stairs on 10 April, notwithstanding that she had already told the police about the assault.

5. [254]

   The fourth matter was that she told her aunt, Aunt B, that the applicant had choked her with both hands, whereas it was the complainant’s evidence that the applicant choked her with one hand while driving. It was submitted that the proposition advanced by the Crown that the complainant may have meant that the applicant had choked her with both hands at different times was speculative.

6. [255]

   The fifth matter was that the applicant submitted that there was no basis for the suggestion that the applicant had a shovel and a gun, pointing to the fact that that allegation was only made to JAE (see [171] above) and pointed to the different evidence given by the complainant that the applicant told her he had a shovel and a knife (see [10] and [17] above).

7. [256]

   The sixth matter was that the allegation in respect of Count 1 was “inherently improbable”.

8. [257]

   The seventh matter was the Facebook communication to which I referred at [87] above. The applicant noted that this occurred after what was alleged to have been consensual penile-vaginal sex at UTS. The applicant described the complainant’s explanation that the applicant was “delusional” as “bizarre”.

9. [258]

   The eighth and ninth matters were the other Facebook messages in which there was no complaint of sexual or physical misconduct.

10. [259]

    The tenth matter was the Facebook message to which I referred at [93] above. The applicant noted that this message was sent after the alleged incident, the subject of Counts 2 and 3. It was submitted that the complainant’s explanation for her statement that the applicant was “the best boyfriend” she had had in the communication was a lie was evidence of “further contrivance”.

11. [260]

    The eleventh matter which related to Count 4 was the evidence of Ms N which the applicant submitted was “entirely inconsistent with that of the complainant”.

12. [261]

    The Crown submitted that it was of significance that the complainant complained to the police very shortly after the incidents the subject of Counts 7 and 8. The Crown pointed out that in the first interview the complainant stated that the applicant threatened to kill her if she did not give him a blow job and that he choked her (see [11]-[12] above) and that the injuries were photographed. It was acknowledged at the hearing that she did not complain of any sexual assault in the first interview. However, the Crown submitted it was “a relatively short interview”.

13. [262]

    The Crown noted that immediately after the first interview, the complainant complained to Ms B that she felt pressured to have oral sex. Ms B, however, did not go so far as to say the complainant told her that in fact they had oral sex.

14. [263]

    The Crown also relied on the interview between the applicant and the police in which the applicant said that he patted the complainant but denied hitting or choking her. It was submitted that the applicant’s “inability to explain the complainant’s bruises was to his detriment”. The Crown also noted that the applicant said there was sexual activity. However, he stated this as an explanation for the bite marks on the complainant’s neck (see [187] above).

15. [264]

    So far as the submission that it was inconsistent with Counts 1 to 3 for the applicant to advise the complainant that she seek medical help, the Crown submitted that it was only inconsistent with the complainant’s case if “the applicant appreciated at the time or later that he had engaged in sexual intercourse without the complainant’s consent”. The difficulty with this is that if the evidence of the complainant was accepted, it was clear that on each occasion that she was not consenting to oral sex.

16. [265]

    The Crown submitted that the inconsistent nature of the complaints regarding the complainant having told her aunts that she had fallen down the stairs after she had spoken to the police, could clearly be attributed to the complainant being embarrassed by what occurred.

17. [266]

    In relation to the different accounts given by the complainant as to how she was choked, the Crown submitted that the complainant’s aunt may have been mistaken in her recollection, or that the complainant may have been referring to being choked by both hands at different times. The Crown submitted that JAE’s evidence that the complainant told him that she was threatened with a shovel and a gun may be attributed to the fact that “he was not as focused on what she was saying because … he was already angry”.

18. [267]

    So far as the inherent improbability of Count 1 was concerned, the Crown contended that “reasonable minds might differ” on the question of whether the conduct was improbable. The Crown also submitted that whilst willingness to engage in penile-vaginal sex shortly after a non-consensual act of oral sex may seem to be improbable, it might be “a reflection of how compliant the complainant was at the time”.

19. [268]

    The Crown also submitted that the reference in the complainant’s Facebook message to the applicant on 8 October 2015 to “hooked up at uts”, supported the complainant’s account. However, that remark cannot be read in isolation from the applicant’s response and the fact that in the cross-examination to which I have referred at [218] above, it appears the applicant understood “hooked up” as something other than having penile-vaginal sex.

20. [269]

    In relation to the Facebook communication of 15 September 2015 (see [87] above), the Crown submitted that to simply focus on the complainant’s explanation that the applicant was delusional did not pay regard to the “somewhat unusual circumstances of their relationship”. Similarly, the Crown whilst accepting that there was no complaint of physical or sexual abuse in the Facebook messages, pointed to the fact that the complainant wanted to continue the relationship and that “experience has shown … that some people …put up with assaults in a relationship for a variety of reasons”.

21. [270]

    So far as the Facebook conversation of 8 October was concerned, the Crown referred to various messages which I have extracted at [93] above, and submitted that the complainant’s untruthfulness had to be assessed in accordance with her feelings towards the applicant at that time.

22. [271]

    In relation to the conflict between the complainant’s evidence and that of Ms N, the Crown accepted that it would be open to the jury to conclude that the complainant was inaccurate to the extent that the complainant stated that applicant had wet her. However, it was submitted that because of the contemporaneous complaint in relation to Count 8 and the “support from injuries on the complainant’s body”, its ability to affect the verdict on Count 8 was limited.

Consideration

1. [272]

   In Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 I sought to summarise the principles on which a Court will set aside a verdict as unreasonable. I made the following remarks (Johnson and Fullerton JJ agreeing):

2. [273]

   As has been pointed out in a number of the authorities in considering the matter, regard must be had to the constitutional function of the jury as the tribunal of fact. That was emphasised in the following passages of the judgment of the High Court in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]:

3. [274]

   In the present case, the jury had the opportunity of observing the complainant including in a lengthy and (without being critical) sometimes hostile cross-examination. Great weight must be given to the fact that the jury was able to be satisfied beyond reasonable doubt of the guilt of the applicant on Count 8.

4. [275]

   Further, there are matters which support the complainant’s account. The choke marks, bruising and bite marks shown in the photographs to which I have referred at [220] above, were consistent with her evidence and she complained about the sexual assault relatively shortly after it was alleged to have taken place, including the complaint to Ms B shortly after the first interview “confirming that … she felt pressured to perform oral sex on her boyfriend” (see [156] above).

5. [276]

   Notwithstanding these matters, having reviewed the whole of the record, I am left in a reasonable doubt that the applicant committed the offence. It is a doubt which, in my opinion, should have been shared by the jury, notwithstanding the advantage that they had in seeing and hearing the complainant: M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63. This is for the following reasons.

6. [277]

   Although Count 8 must be considered separately from the other counts in respect to which the jury failed to reach a verdict, it is necessary to consider her evidence in respect of these counts in assessing her credibility: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [186]-[188].

7. [278]

   The first matter of concern is her evidence on Count 1. Even if the lights were extinguished, there is a degree of improbability about the activities that she described taking place in a study room of a university which had windows, that students may have walked past the room and she did not know if the room was locked (see [41] above).

8. [279]

   This would not, of itself, cast doubt on her credibility. More significant is her version of what occurred. I have set out her evidence in chief at [38] above and cross-examination at [78] above. Her evidence that she consented to penile-vaginal sex “immediately after the blow job” because she wanted to forget the latter, is difficult to accept, as is her evidence that after the penile-vaginal sex finished, she said “it was fun, but I don’t like doing blow jobs” and then they went to KFC for dinner together.

9. [280]

   The next difficulty is the Facebook messages to which I have referred at [87] and [93]. Her question, “are you really a virgin?” is of course quite inconsistent with her having had penile-vaginal sex with the applicant. The content of the Facebook exchange, “Baby are you really a virgin I’m so excited I want to have children” made her statement that she wrote the message because the applicant was “delusional” thinking he was still virgin, quite improbable. Similarly her statement in the Facebook message to which I have referred at [93], in which the complainant stated that other boyfriends had abused her but the applicant was the “best boyfriend” she had had, is inconsistent with the alleged sexual abuse. Her statement that this was a lie also impacts on her credibility.

10. [281]

    Of greater significance is the absence of any complaint of sexual abuse in any of the Facebook messages which passed between the complainant and the applicant. Also of significance in that context are the matters to which I have referred at [94]-[96]. The complainant initially said that she had discussions with the applicant about seeing a psychologist or psychiatrist, although she subsequently said that it was her mother who said that she was going to take her to a psychiatrist when she and the applicant met with their respective parents. It should be noted that there is no reference to this in any of the evidence of the respective parents of the complainant or the applicant. Further as Queen’s Counsel for the applicant pointed out, it would be surprising if the applicant advised or supported the complainant seeking psychological help if in fact the sexual abuse had been the cause of her psychological distress.

11. [282]

    Further, whatever was said at the meeting between the respective parents in November, there did not seem to be any allegation of sexual abuse or non-consensual sex. In addition, in the Facebook messages which passed between the complainant and the applicant after the meeting, the applicant again denied that he had sex with the complainant (see [68] above).

12. [283]

    The next difficulty relates to the evidence of Ms N. On the complainant’s version of the conversation she had with Ms N, she told Ms N that she was wet as the applicant poured a jug of water over her and spat on her. If, in addition to this occurring, the applicant had beaten her with a tennis racket, there seems to be no particular reason why it was embarrassing to tell Ms N of that fact. Further, the complainant stated that there were no marks on her which was surprising if the applicant had beaten her five times with a tennis racket.

13. [284]

    In addition, contrary to the evidence of the complainant, Ms N stated that she did not observe the applicant was wet at all.

14. [285]

    There are also a number of matters directly relating to Count 8. First, although the photographs provide some support for what the complainant said occurred on the night in question, they do not provide direct support for the actual sexual assault alleged. Rather, they are consistent with the original complaint made to members of the complainant’s family and in the first police interview, namely, a physical assault. Even then, there are inconsistencies. According to JAE, the complainant told him that the applicant had threatened her saying that he had a gun and a shovel, whilst the complainant’s evidence was that it was a knife and a shovel. In addition, according to her Aunt B, the complainant told her that the applicant had choked her with both hands, whilst the complainant said that in this incident, it was only with one hand. These matters are not of particular significance of themselves but they must be taken into account along with the other matters to which I have referred in assessing the credibility of the complainant.

15. [286]

    The complainant did not directly allege that she had been sexually assaulted in her first interview with the police. The complainant stated in that interview that the applicant had threatened to kill her if she did not give him a blow job. Unfortunately, she did not appear to be asked by the police whether she complied with that threat by giving the applicant a blow job. The interview rather went on to deal with the assault that took place at the time. However, it must be noted that at the conclusion of her first interview, she was asked the following questions and gave the following answers:

16. [287]

    Further, her Facebook message that evening, “Goodnight I love you” is on its face inconsistent with a sexual assault that day. In saying this, it must be remembered that does not, of itself, lead to the conclusion that the assault did not occur. There are many reasons why a person who has been assaulted in the manner alleged by the complainant may make a statement of that nature. Not the least being a desire to continue what had always been a turbulent relationship.

17. [288]

    There are two other matters which are of relevance in assessing the complainant’s credibility. First, the evidence of Mr M and Ms C which cast doubt on the complainant’s evidence of the contact between her and the applicant in 2012 and second, the detail of her conversation with Ms C which the latter said took place at the school reunion. Ms C did not appear to have any reason to depose to a conversation which did not take place with her.

18. [289]

    There is also evidence that the applicant was a person of good character, although the description of the applicant as “a gentleman” and “very respectful at work” is certainly not reflected in some of the Facebook messages he sent to the complainant.

19. [290]

    In considering the evidence, allowance must not only be made for the advantage of the jury but also the emotional state of the complainant at the relevant time which is apparent from the Facebook messages in evidence, some of which I have reproduced in this judgment. Thus, I have placed no regard to the fact that the relationship continued, notwithstanding the alleged sexual assaults. Although I have referred to it, I have placed little weight on the message, “Goodnight I love you” on the night of the alleged incident the subject of Counts 7 and 8. Notwithstanding, the matters to which I have referred have left me in reasonable doubt that the offence was committed.

20. [291]

    In these circumstances, in my opinion, Ground 2 has been made out.

An irrelevant matter

1. [292]

   In the course of a Crown detention application following the conviction, the trial judge made the following remarks:

2. [293]

   Subsequently in declining to set the matter down for sentence, the trial judge made the following comments:

3. [294]

   The applicant submitted that the comments by the trial judge who, like the jury had the advantage of seeing the complainant, could be taken into account in determining whether the verdict is unreasonable.

4. [295]

   I do not agree. It was a matter for the jury to determine the guilt or innocence of the applicant, not the trial judge. It is the function of this Court to determine whether the verdict is unreasonable in accordance with the authorities to which I have referred. With the greatest respect to those who take a contrary view (see McCann v R [2014] NSWCCA 79; Drysdale v R [2015] NSWCCA 135), I do not think that it is appropriate to take the view of the trial judge expressed following the conclusion of the trial into account.

5. [296]

   The view which I have expressed seems to be consistent with what was said by Crennan J in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [112]-[115]. Although her Honour was in dissent as to the result, nothing said by her was inconsistent with the reasoning of the majority who did not deal with the issue.

6. [297]

   As I have reached the conclusion that in any event the conviction should be set aside, it follows that it is not necessary for me to deal with this matter further or to consider whether I am bound by what was said in McCann v R and Drysdale v R.

Conclusion

1. [298]

   In the result, I make the following orders:

   1. (1)

      Grant the applicant leave to appeal.

   2. (2)

      Quash the conviction of the applicant on Count 8 of the indictment dated 9 July 2018 and in lieu thereof enter a verdict of acquittal.

2. [299]

   BELL P: I have had the benefit of reading in draft the reasons of the Chief Justice and the concurring reasons of Hamill J. I agree with the orders proposed by the Chief Justice and, subject to one point of elaboration, with his Honour’s reasons.

3. [300]

   The elaboration relates to the complainant’s failure to raise the sexual assault which formed the basis of Count 8 in her first interview with the police on Saturday 9 April 2016, being two days after the alleged assault.

4. [301]

   The Chief Justice has pointed out at [7]−[14] of his reasons that the complainant was asked on multiple occasions in her first interview what had happened. At [14], his Honour records that, after giving her account, the complainant was asked whether there was anything else she could tell the interviewer about what happened. The Chief Justice sets out verbatim the complainant’s response to that question which made no reference to the alleged sexual assault. The complainant then volunteered that she felt confused “because I’ve been with him for a long time” and “I can’t get out of it”. After that answer, there then followed this exchange between the complainant and Constable Battin:

5. [302]

   I have emphasised those aspects of this exchange that I consider particularly significant. The police officer perfectly properly signified to the complainant that if she thought that there was anything else particularly important, she should contact the police. The complainant responded immediately, under no pressure, and said that “Well … [t]here is something.” That was the spitting.

6. [303]

   It is, to my mind, striking that the complainant did not take the opportunity to volunteer the sexual assault on this occasion, particularly given the graphic and detailed nature of her account of it in the second police interview a mere two days later. It was not, if that account be accepted, something that was likely to slip her mind.

7. [304]

   No evidence was elicited either in chief or in re-examination from the complainant as to why she made no reference to the alleged sexual assault in the first interview, particularly in circumstances where she had attributed to the applicant the statement “If you don’t have sex with me, or if you don’t give me a blow job, um, I will kill you.” It was not as though she had avoided this subject in her first interview, and yet she had said nothing about acceding to the applicant’s alleged threat notwithstanding being asked in what was, from the tone of the officer’s questions, a sympathetic environment, whether there was anything else that she thought that was “very important that [the police] need to know about”.

8. [305]

   It is also significant to my mind that the complainant said nothing about the alleged sexual assault to her friend and work mate Ms B on the evening of 8 April 2016 when they were working together. Ms B’s evidence in this regard was that:

9. [306]

   The significance of the failure to report the sexual assault in the course of the first police interview is tempered to some extent by the fact that, according to the complainant’s evidence which in this regard was corroborated by the evidence of Ms B, soon after the first interview when the complainant, Ms B and another friend, Ms D were speaking in a park (they all having attended the first interview), in apparent answer to a question from Ms B, the complainant said “she felt pressured to perform oral sex on her boyfriend”. It was not entirely clear from Ms B’s account that this was a specific reference to what had occurred on 7 April 2016 as opposed to a more general statement but the context of the conversation probably supports the view that is related to the incident on 7 April 2016. Ms B and the complainant both said that, as they were having this conversation, the complainant’s phone rang and they were asked to come back to the police station. Ms B said:

10. [307]

    According to the complainant’s evidence, when she returned to the police station, she told a Detective Allen “about if I didn’t give him a blow job he would kill me, and that he forced me to give it to him”. There does not appear to have been any formal police record of this having been said in evidence at trial, and there was certainly no record of it in the materials put before the Court of Criminal Appeal. Nor is there any reference to it in the transcript of the second interview which Detective Allen conducted on 11 April 2016. That record of interview begins:

11. [308]

    It is curious and unfortunate that there is no record or independent corroboration of the report of the sexual assault to police on 9 April 2016 subsequent to the first police interview earlier that day. The failure to raise the matter in the first interview, however, in the context of the tone of that interview, the other information that was volunteered, all taken in conjunction with the various other issues going to the complainant’s credibility that have been referred to in the Chief Justice’s judgment at [278]−[290] and my own review of the evidence leaves me with a similar doubt to that expressed by the Chief Justice at [276] of his judgment.

12. [309]

    To the matters referred to in [285] of his Honour’s judgment, I would add the following inconsistencies in the evidence relating to Count 8:

    1. (1)

       in her second police interview, the complainant said that she had told Ms B and Ms D on 8 April 2016 about what had happened; but, as I have noted in [305] above, the only matter Ms B recalled being told by the complainant on 8 April was the alleged physical “grabbing” of the complainant by the appellant but not sexual assault;

    2. (2)

       there was an important inconsistency in the second interview as to the circumstances surrounding the reason why the complainant “got angry” on 7 April 2016. The complainant initially said:

13. [310]

    In relation to the final ground of appeal concerning inconsistency, the Chief Justice and Hamill J differ at least in terms of degree as to the extent to which the failure of a jury to reach agreement on a particular count or counts might underpin a ground of appeal based on principles of inconsistency.

14. [311]

    In my opinion, the risks and illegitimacy of speculation or second guessing, even subconsciously, the reasons for such an outcome of jury deliberations seem to me to be very great. At the very least, great caution is called for in entertaining such a ground of appeal in the circumstances postulated.

15. [312]

    HAMILL J: I have had the considerable advantage of reading the judgment of Bathurst CJ in draft. I agree with the orders proposed by the Chief Justice and with his Honour’s reasons.

16. [313]

    I do not share his Honour’s reservations as to the extent to which the failure of a jury to reach agreement on a particular count or counts might form the basis of a ground of appeal asserting that the outcomes are inconsistent (legally or factually), or that a guilty verdict is unreasonable on the basis that the same jury was unable to reach a verdict in respect of other counts on the same indictment.

17. [314]

    Plainly, a jury’s failure to reach a verdict on particular counts cannot be said to be an inconsistent “verdict”. However, as the English Court of Appeal said when considering this question, “linguistics should not be allowed to triumph over justice” [1] . Whether the ground be one of “legal or technical inconsistency”, factual inconsistency, or where the assertion is that a guilty verdict is unreasonable because there is no logical or reasonable explanation for the disparate outcomes, I cannot see any reason in principle that a failure to reach a verdict cannot form the basis for grounds of appeal such as those now raised.

18. [315]

    This is not to say that an appellate court can engage in speculation as to the reason for the disagreement. But, to cite the most common example, if the only issue in dispute is the credibility of the complainant, and at least some members of the jury entertained a reasonable doubt as to that credibility on some counts, while accepting it beyond reasonable doubt on others, the same considerations as those discussed in cases such as Jones v R [2] , MFA v R [3] and Markuleski v R [4] may apply.

19. [316]

    As the Chief Justice’s judgment demonstrates, there is some tension in the authorities. As I said in PA v R, [5] without attempting finally to resolve this conflict:

20. [317]

    In PA, Hoeben CJ at CL posited a way of reconciling the authorities at [40]. I maintain my agreement with that approach and my view that “a jury’s failure to reach a verdict may, in particular circumstances, provide some support for a ground of appeal based around an assertion that a guilty verdict reached by the same jury is unreasonable or unable to be supported.” [6]

21. [318]

    This is not a case of “legal or technical inconsistency” of the kind referred to in Mackenzie v The Queen. [7] Rather, to adopt again the language used in Mackenzie, it is one of “factual inconsistency”. As I said in PA, [8] (by reference to the High Court’s decision in MFA) [9] “ultimately, the test is unreasonableness rather than inconsistency” and the Court must “examine any differentiation in the verdicts to see if it can be justified” [10] .

22. [319]

    Accordingly, and consistent with the approach taken by Bathurst CJ, I have considered the applicant’s first ground on the basis that the failure of the jury to agree on verdicts for counts 1 to 7 can inform this Court’s assessment of whether the guilty verdict on count 8 is factually inconsistent with the outcome (or lack of outcome) in counts 1 to 7 (and therefore unreasonable).

23. [320]

    As the Chief Justice’s analysis shows, there were manifest factual and evidentiary differences between the prosecution case on counts 1 to 6 and its case in respect of counts 7 and 8. Perhaps most significantly, there was a relatively prompt complaint in respect of the allegations comprising counts 7 and 8. There is no logical inconsistency between the verdict on count 8 and the failure to reach verdicts on counts 1 through to 6. The jury’s differentiation between those counts, and the disparate outcomes, were justified by the evidence in the case. It was neither illogical nor unreasonable in the relevant sense.

24. [321]

    Count 7 required proof (beyond reasonable doubt) of a particular and quite specific mental state. Count 8 did not. Further, the complainant’s evidence in respect of the choking contained some inconsistencies. For those reasons, there was no relevant inconsistency between the guilty verdict in respect of count 8 and the jury’s inability to reach a verdict on count 7.

25. [322]

    For those reasons, and for those provided by the Chief Justice, I would reject ground 1.

26. [323]

    As to ground 2, I have undertaken a review of the whole of the evidence, noting that neither party submitted that the Court should view or listen to the recordings of parts of the evidence or the interviews.

27. [324]

    I am left with a substantial doubt as to the appellant’s guilt. The jury’s advantage in seeing the witnesses (and in particular the complainant) give evidence does not allay, explain or resolve that doubt. It is a doubt that the jury ought to have entertained. In reaching that conclusion, I have considered some of the more extraordinary aspects of the evidence in respect of the other counts and more generally, such as the version concerning count 1 and the ongoing Facebook message exchange. In making an assessment of the evidence elicited in proof of count 8, I have taken into account the deficiencies in the evidence in respect of the other allegations and counts and the prosecution case more generally: see R v Markuleski [11] .

28. [325]

    Accordingly, I agree with Bathurst CJ that ground 2 must be upheld, the conviction on count 8 quashed, and a verdict of not guilty should be entered. In addition to the specific observations in the preceding paragraph, I agree with, and adopt, the reasons articulated by the Chief Justice.

29. [326]

    In the circumstances of the present case, I agree that the understandable concerns expressed by the trial Judge as to the verdict on count 8 should play no role in this Court’s consideration of the question of whether that verdict was unreasonable or unable to be supported by the evidence adduced at the trial.

30. [327]

    I agree with the orders proposed by the Chief Justice.