Hamzeh v R

1. [1]

   BEECH-JONES CJ at CL: This is an application for leave to appeal against convictions for an offence of supply a prohibited drug and an offence of aggravated sexual intercourse with a child above 14 years of age and under 16 years of age.

2. [2]

   The applicant contends that the verdicts of guilty for those offences are unreasonable and cannot be supported by the evidence (ground 1) and that the guilty verdicts are inconsistent with the jury’s verdicts of not guilty on other sexual offences alleged to have been committed against the same victim (ground 2).

3. [3]

   For the reasons that follow, I would uphold the contention that the verdicts of guilty were unreasonable and cannot be supported by the evidence. As explained below, the Crown conducted its case in a manner which made it necessary for it to prove beyond reasonable doubt that the applicant supplied a particular drug, 4‑hydroxybutanoic acid (also referred to as “GHB” or “G”), to the victim (“JN”) before they had sex. In the absence of any forensic evidence supporting the contention, and given the uncertainty of the victim’s evidence on that topic, it was not reasonably open to the jury to conclude that the applicant gave her that particular drug. As the applicant received an aggregate sentence that encompassed the two offences the subject of this application as well as two offences of supplying drugs that he pleaded guilty to, it is necessary to remit the matter to the District Court for re‑sentencing on the latter two offences alone.

4. [4]

   By the operation of s 578A of the Crimes Act 1900 (NSW), the publication of the identity of the victim or any information that identifies her is prohibited.

Background

1. [5]

   On 27 August 2019, the applicant was arraigned with another accused, Mr Egidijus Masevicius (“Masevicius”), before a jury panel in the District Court on an indictment that contained 11 counts. The first eight counts charged the applicant and related to the same victim, JN, who was 14 years old at the time of the offences charged. The last three counts charged Masevicius with three offences against JN. All, save for Count 11, were alleged to have been committed on 12 June 2016. Count 11 was alleged to have been committed between 12 and 13 June 2016.

2. [6]

   On 15 August 2019, the applicant pleaded guilty to Counts 1 and 2 which where charges of supplying prohibited drugs (to JN) contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW). He pleaded not guilty to the remaining six charges. Count 3 was another charge of supplying a prohibited drug (to JN). The drug was particularised as “G”. The applicant was found guilty of Count 3.

3. [7]

   Count 4 was a charge under s 66C(4) of the Crimes Act of having sexual intercourse with JN being a child above the age of 14 years and under the age of 16 years in circumstances of aggravation. The circumstance of aggravation was that specified in s 66C(5)(g) of the Crimes Act namely, that “the accused person took advantage of the complainant being under the influence of alcohol or a drug in order to commit the offence”. As I will explain, the Crown alleged JN was under the influence of all three drugs the subject of Counts 1 to 3 and accepted that proof of that beyond reasonable doubt was critical to its case on Count 4. The applicant did not dispute that he had sex with JN but denied that she was under the influence of all three drugs and said he believed she was 18 years of age. The applicant was convicted of Count 4. No alternative count under s 66C(3) of the Crimes Act was included in the indictment or sought to be put to the jury. Section 66C(3) prohibits sexual intercourse with a child aged between 14 and 16 years of age. It does not have any element of aggravation such as that included in Count 4.

4. [8]

   Counts 5 and 7 of the indictment charged the applicant with offences under s 61J(1) of the Crimes Act of having sexual intercourse with JN knowing that she was not consenting in circumstances of aggravation, namely that she was under 16 years of age. Counts 6 and 8 of the indictment charge the applicant with further offences under s 66C(4). These counts were charged in the alternative to Counts 5 and 7 respectively. The jury returned verdicts of not guilty on Counts 5 to 8.

5. [9]

   Count 9 charged Masevicius with assaulting JN and at the time of the assault committing an act of indecency on JN being a child under the age of 16 contrary to s 61M(2) of the Crimes Act. Counts 10 and 11 charged Mr Masevicius with committing offences under s 61J(1) against JN, namely having sexual intercourse with JN knowing that she was not consenting in circumstances of aggravation, namely that she was under 16 years of age. The jury returned verdicts of not guilty on Counts 9 to 11.

6. [10]

   On 29 November 2019, the applicant was sentenced to an aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 3 years and 3 months. The indicative sentence for Count 1 was imprisonment for 8 months and 2 weeks and for Count 2 was imprisonment for 5 months and 3 weeks. The applicant will be first eligible for release on parole on 10 November 2022. There is no application for leave against sentence.

The Crown and Defence Cases

1. [11]

   As noted, as at June 2016, JN was 14 years old. She turned 15 in August 2016. As set out below she spoke to a number of persons on the day following the events the subject of the charges (i.e., 13 June 2016) and provided some details that supported Counts 1 to 4 although she said nothing that supported Counts 5 to 11. However, JN was not the subject of a formal police interview until 5 May 2017 the recording of which was played to the jury as (part of) her evidence-in-chief at the trial (the “JIRT”). The JIRT included a description of the events the subject of Counts 1 to 4 and Counts 9 to 11 but did not include any description of the events the subject of Counts 5 to 8. It seems that JN first disclosed the events the subject of Counts 5 to 8 in a statement made to police on 24 May 2018. She also addressed those counts in her pre-recorded evidence for the trial given on 15 August 2019. That evidence was taken pursuant to Pt 29 of Sch 2 to the Criminal Procedure Act 1986 (NSW) and played to the jury. The applicant did not participate in an interview with the police, but he did give evidence at his trial. The co-accused, Masevicius, did both.

2. [12]

   The following narrative of JN’s evidence is taken from the JIRT and JN’s pre‑recorded evidence. It represents the narrative that was relied on by the Crown in opening and closing its case. The applicant’s evidence in response to the critical parts of JN’s evidence is also noted.

3. [13]

   On 11 June 2016, JN left an adolescent mental health facility at Shellharbour on weekend leave to visit her family home in suburban Sydney. Late in the night she left her home and went to Kogarah train station, in her own words, to “…end [her] life”. The applicant met JN for the first time at the train station. She agreed to let him drive her home. JN said she told the applicant she was 14 years old. In his evidence, the applicant said she told him she was 18 and he believed her.

4. [14]

   Counts 1 to 4 are alleged to have occurred in the applicant’s caravan at his home. JN said that the applicant was consuming illegal drugs and offered her “weed” and “ice” which she accepted. This conduct was the basis for Counts 1 and 2 on the indictment. In his evidence the applicant agreed he provided JN with those drugs but said that she smoked marijuana before they had sex and she smoked “ice” after they had sex. In the JIRT, JN said that the applicant then asked whether she wanted a drink of water, to which she agreed. She said the applicant returned from outside with a cup of water. JN drank the water and “…[did not] remember much after that.”

5. [15]

   JN also said the following in her JIRT about the drink of water given to her by the applicant:

6. [16]

   It was the Crown case that the drink of water was laced with “G”. This conduct was the basis for Count 3. The applicant agreed that he gave JN a glass of water but denied that he gave her any G or even possessed any “G”. He said he provided her with “children’s Panadol” in liquid form because she said she had a sore throat.

7. [17]

   In her JIRT, JN said that the applicant then asked her to have sex which she agreed to (“yeah, I said, [y]es”). According to both JN and the applicant, they had sex and the applicant ejaculated inside of her (although they gave different accounts of the sexual positions each other adopted). This conduct was the basis for Count 4. It was not an element of an offence under s 66C(4) that JN did not consent to sexual intercourse. However, it was an element of Count 4 that JN was under the influence of drugs. As noted, the Crown contended that she was under the influence of all three drugs the subject of Counts 1 to 3. That was very much in issue. The trial judge’s direction in respect of that issue is also set out below. In light of the accused’s evidence about his belief as to JN’s age, the jury were also directed that the Crown had to prove beyond reasonable doubt that the applicant did not honestly and reasonably hold the belief that JN was under the age of 16.

8. [18]

   In her JIRT, JN said the applicant showed her a firearm and told her it was “like, a police gun, or something”. She did not suggest it was used to threaten her. Under cross‑examination in her pre-recorded evidence JN said she could not remember whether she was threatened by the applicant or whether he said anything when he showed her the gun. In cross‑examination, the applicant denied he produced a gun or owned a gun.

9. [19]

   In her JIRT, JN recalled that at around 5am in the morning the applicant said, “he had to go to Target to get something”. She said they drove off in his car. She said the following about the car journey:

10. [20]

    JN was cross‑examined about this in her pre-recorded evidence as follows:

11. [21]

    In her JIRT, JN said that the applicant did not take her to Target but instead took her to a building that she thought was “a brothel”. She said that, while walking from his car to the brothel, the applicant met people he knew and told them that she was his girlfriend and that she was 18. In his evidence the applicant said that, while he was at his home, JN said she wanted to go to an “adult shop”. He said that, via an internet search, he found a shop that was open “around 4 or 5am” in Oxford Street.

12. [22]

    Counts 5 to 8 are alleged to have occurred at this “brothel”. In her JIRT, JN did not refer to having sex with the applicant at the “brothel”. She said that she spoke to someone at the front desk before going upstairs where there were large televisions showing pornography. She recalled the applicant came upstairs with two other men. He said he would wait outside. She said she never saw him again. JN said that she went downstairs with one of the other two men, being Masevicius, noticed that the applicant was not there and travelled with Masevicius in his car to his home.

13. [23]

    As noted, JN made a statement to the police on 24 May 2018 in which she stated that she was sexually assaulted by the applicant at the “brothel” by the applicant before she left with Masevicius. JN gave evidence about those assaults in her pre-recorded evidence on 15 August 2019. She said that the applicant led her to a booth at the “brothel”, played pornographic material on a television, started undressing her, before getting on top of her. The applicant then “…put his penis inside of [JN’s vagina] and held [her] down” for about five minutes. The applicant then left the room and came back with another person before continuing to do “…the same thing as before” by putting his penis inside of JN’s vagina for five minutes. She agreed that she was “affected by drugs” on both occasions. This was the conduct the subject of Counts 5 to 8 on the indictment.

14. [24]

    In his evidence, the applicant said that he and JN entered the “adult shop” and he asked an employee whether they could go upstairs. The employee asked their ages and JN said she was 18. He described the upstairs area as “a big room with a couple [of] TVs up on the walls, and it’s like a swingers’ club pretty much.” He said that JN started talking to another man. The applicant said that JN asked him to recover her house keys from his home. He said they both went downstairs to leave but JN said she wanted to stay. The applicant said he returned to his house to locate JN’s house keys. He said that when he returned, she had left. The applicant denied having sex with JN upstairs at the adult shop or ever entering a booth upstairs.

15. [25]

    JN left the brothel with Masevicius. In the balance of the JIRT she recounts being sexually touched and penetrated by him without her consent. This was the conduct the subject of Counts 9 to 11 on the indictment. At one point, she recounts sitting on the bed with him and stated that “this is where everything starts to get really fuzzy”. As noted, Masevicius participated in an interview with the police and gave evidence at the trial. It suffices to note that he agreed he met JN at the “brothel” (or swingers club). He said he asked her how old she was, and she said 18. He also asked if she was a “swinger” and she agreed she was. He said that they had consensual sex. Masevicius called evidence from his flatmate who saw JN at their apartment and said she did not appear to be in any distress. The flatmate said that Mr Masevicius told him that JN was 18 years of age.

16. [26]

    In her JIRT, JN said that on 13 June 2016 Masevicius drove her to Wollstonecraft train station. She caught a train to Town Hall train station where she called triple-0 with a mobile phone he provided her. Police subsequently came to her location.

The Disclosures made by JN on 13 June 2016

1. [27]

   The following represents the evidence of the chronology of disclosures made by JN on 13 June 2016 from the time of her making the triple-0 call from Town Hall train station to her seeing her mother at the Children’s Hospital later that day.

2. [28]

   The recording of the triple-0 call made by JN was played to the jury. She told the operator that she had been “drugged and raped and everything”. She said the perpetrator “had guns”. The operator asked, “so he held a gun at you while that happened?” and JN replied “yep”. She added “because like I was drugged and everything um he literally left me at a um brothel”.

3. [29]

   Plain Clothes Senior Constable Tegan Darcy (“PCSC Darcy”) attended on JN at St Andrew’s Cathedral near Town Hall train station. She recalled that JN was crying and told her that “she had been sexually assaulted over the weekend” and that “her body was aching all over and that she’d been threatened with a gun.” PCSC Darcy and her partner, Constable Anthony Legana, drove JN to the police station. They were not able to engage JN in conversation on the journey.

4. [30]

   JN was seen by Detective Senior Constable Katie Burnell, (“DSC Burnell”) and Senior Constable Sian Kench (“SC Kench”) at around 12.30pm on 13 June 2016. DSC Burnell said that JN said that she had been “raped”, but did not initially want to provide details. JN informed her that “she had been sexually assaulted and that a fellow had given her ice”, which she smoked. JN said that she had drunk whiskey.

5. [31]

   DSC Burnell agreed that JN informed her that the man “told me he wanted to have sex” to which she said “no”. DSC Burnell also agreed that JN told her she had consumed “pot” which made her “relaxed” and that she also smoked “ice”. DSC Burnell agreed that JN said “that her mouth was filled with water and droplets were put in” and she “then lost control of her body.” DSC Burnell agreed that JN said “I took all my clothes off” and that JN also said “he was kissing me on the mouth. He ejaculated and pulled out”. DSC Burnell said that JN said that the perpetrator had a “police officer’s gun” and said to JN “I’ll shoot you if you don’t [have sex with me]”. She also agreed that JN told her the perpetrator had taken her to a brothel and “paid for her to stay upstairs at the brothel and simply left.”

6. [32]

   DSC Kench’s evidence was not relevantly different to that given by DSC Burnell. She recalled that JN disclosed that a man had given her “some ice to smoke and a couple of cones” and some whiskey. JN indicated that she had been sexually assaulted inside a caravan. DSC Burnell agreed that JN said that “the male gave her some G” and that “she had to fill her mouth with water and droplets were added to the water in [her] mouth”. The male told JN “I want to have sex with you” and JN responded with “[l]ots of nos”. JN told DSC Kench that the man “paid for her to stay upstairs at this alleged brothel and then left” and that JN then got on a train to Bondi and got off at Town Hall where she called triple-0.

7. [33]

   A paramedic, Ms Samantha Garner-Graham, attended the police station when JN was being interviewed by DSC Burnell and DSC Kench. She and another paramedic observed the interview from outside the room before speaking to JN. JN told her that she and a man had “smoked four cones of marijuana”, “five to ten smokes of ice” and drunk “approximately half a bottle of whiskey.” Ms Garner-Graham also recalled JN “refer[ring] to another drug” given to her by the man which JN believed “was called G.” Ms Garner-Graham recalled that JN said “she had aches and pains all over, and a sore throat”. She and the other paramedic took JN to Sydney Children’s Hospital. Ms Garner‑Graham described JN as “alert completely throughout, perfectly coherent, and able to tell me her story quite effectively”.

8. [34]

   JN was seen at the Sydney Children’s Hospital by Dr Lydia Garside. Relevantly Dr Garside stated JN was “feeling unwell and she had a sore throat”. Dr Garside said that JN only reported “one incident of sexual intercourse”. Dr Garside recorded “[s]exual assault by one man” being a reference to the applicant.

9. [35]

   JN’s mother, AN, attended the hospital to visit her daughter. She did not recall speaking to JN about the assaults on that day. However, she said that after JN participated in the JIRT on 5 May 2017, JN told her that she was sexually assaulted near Kogarah and sexually assaulted by another man at Wollstonecraft. In relation to the assault at Kogarah, JN told her that the assault was aggressive and that JN said she “felt like she consented because of drugs that had been given to her”. She agreed that in September 2016 JN had a made series of false allegations that her father had physically assaulted her which had led to his arrest.

Toxicological Evidence

1. [36]

   The Crown called a consultant forensic toxicologist, Mr John Andrew Farrar. Mr Farrar said that a sample of JN’s blood taken at 10.43am on 14 January 2016 yielded positive results for cannabinoids and amphetamines, which includes “ice”. He agreed that those results indicated that JN had smoked cannabis and that they were consistent with her having smoked ice. He said that the effect of smoking ice would have caused her to be “[v]ery hyperactive”.

2. [37]

   Mr Farrar said that the drug “G” was also known as GHB and its chemical name was “gamma hydroxybutyrol”. He said it was developed as an anaesthetic and was largely a “sedative drug.” He said the drug was rapidly metabolised within the body and was usually not detectible in a urine sample taken more than 12 hours after consumption. JN’s sample was taken approximately 50 hours after consumption.

3. [38]

   Mr Farrar said that the effect of consuming both cannabis and methylamphetamine was to “cause cognitive impairment”. He was then asked:

4. [39]

   In cross-examination Mr Farrar agreed that it was not possible to determine the extent, if any, of cognitive impairment caused to JN by any prior consumption of cannabis and GHB by the time she met Masevicius.

Evidence of Senior Constable Rebecca Williams (OIC)

1. [40]

   The officer in charge of the investigation from 17 June 2016 was Detective Senior Constable Rebecca Williams (“DSC Williams”). DSC Williams confirmed that the applicant’s semen was located in a sample obtained from JN and that the applicant’s DNA from a buccal swab from his mouth matched the sample provided by JN. During cross-examination DSC Williams agreed that she met with JN on 24 May 2018 to take another statement in relation to the incident where JN disclosed for the first time that the applicant had carried out other sexual assaults against her in the “sex shop”.

Balance of JN’s Evidence

1. [41]

   Most of the salient parts of JN’s evidence are set out above. However, given the grounds of appeal it is appropriate to note some aspects of her cross‑examination. Not surprisingly the cross‑examination was directed towards the various inconsistencies between the disclosures made by her on 13 June 2016, her JIRT, and the pre-recorded evidence. Hence, JN could not recall telling the triple-0 operator, the police or hospital staff that the perpetrator held a gun to her head, telling the police that the perpetrator threatened to shoot her if she did not have sex with him, nor saying that she tried to punch or push him. When asked to explain why she told the triple‑0 operator that the perpetrator held a gun to her head, JN replied “I don’t know”. JN denied drinking half of a bottle of whiskey on 13 June 2016 and did not remember telling police, ambulance officers and doctors the contrary.

2. [42]

   The cross-examination of JN on her alleged conversation with the applicant about lacing her drink with a drug is set out above. JN denied telling police on 13 June 2016 that her mouth was filled with water and droplets put in her mouth. She denied she had a sore throat but said that she developed a sore throat in the days after 13 June 2016.

3. [43]

   When JN was asked why she did not mention Counts 5 to 8 in her JIRT, she said that she “did not remember for a long time” until she was shown photographs of the “brothel place” on 24 May 2018 and “from that I got memories and remembered what had happened.” She said the photos showed rooms resembling those in which she recalled being sexually assaulted by the applicant.

4. [44]

   Counsel for the applicant cross‑examined JN about a statement she made to police in September 2016, being three months after the events the subject of these proceedings, in which she falsely accused her father of physical abuse. She agreed the statement was a lie. She said that at the time she was affected by the actions of the applicant and Masevicius and the “bad influence” of a friend who came with her to the police station.

5. [45]

   Counsel for Masevicius asked JN the following:

6. [46]

   JN did not make any reference to the “Russian man” or a second perpetrator in any of her disclosures on 13 June 2022.

Trial Judge Directions

1. [47]

   In light of the grounds of appeal, four aspects of the trial judge’s directions to the jury should be noted as they inform this Court’s consideration of whether the verdict was unreasonable and could not be supported having regard to the evidence (Criminal Appeal Act 1912 (NSW), s 6(1)).

2. [48]

   First, the trial judge directed the jury that they could accept a part of a witness’ evidence and reject other parts.

3. [49]

   Second, the trial judge directed the jury, before they could find either the applicant or Masevicius guilty of Counts 3 to 11 on the indictment, they needed to be satisfied beyond reasonable doubt that JN’s evidence was truthful and accurate.

4. [50]

   Third, the jury was given a “separate counts direction” that is a direction to consider each count on the indictment separately. They were told that it was open to return different verdicts on different counts “provided there is a logical reason to make that distinction between them and come to that decision.” However, the jury were also given a Markuleski direction, that is, a direction that, if they found either accused not guilty on any of the counts in the indictment, they could “and should take that doubt into account when … considering [JN’s] evidence on the other counts” (see R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290).

5. [51]

   Fourth, the trial judge was alert to the issue of the significance or otherwise of whether the Crown case was tied to proving that JN was affected by all three drugs (i.e., cannabis, “ice” and “G”) to make out Count 4. Her Honour raised that with the Crown Prosecutor who accepted that “it would therefore only be on the basis that [the jury] accept [JN’s] version on those three [drugs]” that Count 4 could be made out. To confirm this, the trial judge provided Counsel with draft written directions which they did not relevantly dispute. Those draft directions made it clear that, on Count 3, the Crown had to prove beyond reasonable doubt that the applicant supplied JN with “G” (and not just any form of prohibited drug) and that for Count 4 it had to prove beyond reasonable doubt that JN was under the influence “of the three drugs” that JN alleged that the applicant had given her.

6. [52]

   This was repeated in the trial judge’s directions to the jury. Hence, in relation to Count 3, the jury was directed that the Crown had to prove beyond reasonable doubt that on 12 June 2016 the applicant “intentionally supplied a prohibited drug to [JN], the drug was 4-hyroxybutanoic acid, and [the applicant] knew the substance he gave [JN] was that drug.” In relation to so much of Count 4 that required the Crown to prove beyond reasonable doubt that the applicant “took advantage of [JN] being under the influence of drugs in order to commit the offence” the jury was directed that:

7. [53]

   While these directions by the trial judge were entirely appropriate in light of the manner in which the Crown had confined its case, it should be noted that to establish an offence under s 25(1) of the Drugs Misuse and Trafficking Act it is not necessary to prove that the accused intended to supply the precise prohibited drug that was in fact supplied. It can suffice to prove that the applicant supplied a drug that was prohibited and that they knew to be prohibited without necessarily demonstrating that they knew what the precise drug was that was supplied (Siafakas v R [2016] NSWCCA 100 at [27] and [43]; Yousef Jidah v R [2014] NSWCCA 270 at [34]; Re Gary Dunn (1986) 32 A Crim R 203).

8. [54]

   Similarly, with an offence under s 66C(4) of the Crimes Act that invokes s 66C(5)(g), it is only necessary for the Crown to prove that an offender “took advantage of the complainant being under the influence of … a drug in order to commit the offence”. In a case in which the evidence suggests that a victim may have been under the influence of drugs generally, it would suffice to prove that the victim was under their influence and that the applicant (knowingly) took advantage of that fact without necessarily proving what those drugs were. In a case such as this, where the evidence relied on to prove the element of aggravation is the supply of three particular drugs, it would ordinarily suffice to prove that the victim was under the influence of at least one of the drugs (and the accused took advantage of that), provided the jury were unanimous about that one drug and its influence.

Grounds of Appeal: Unreasonable Verdict and Inconsistent Verdict

1. [55]

   Ground 1 of the appeal contends that the verdicts of guilty in relation to Counts 3 and 4 are unreasonable and cannot be supported by the evidence (Criminal Appeal Act, s 6(1)). Ground 2 contends that the verdicts of not guilty in relation to Counts 6 and 8 are inconsistent with the verdicts of guilty in relation to Counts 3 and 4. Both grounds can be dealt with together.

2. [56]

   The relevant principles applicable to ground 1 were enunciated in M v The Queen (1994) 181 CLR 487 at 493 to 495 per Mason CJ, Deane, Dawson and Toohey JJ; [1994] HCA 63 (“M v The Queen”). This Court must ask itself whether it considers that, upon a review of the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In doing so, this Court must pay full regard to the “consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence” and “the consideration that the jury has had the benefit of having seen and heard the witnesses.” Their Honours held (at 494):

3. [57]

   In relation to ground 2, if there is a proper way by which an appellate court may reconcile the supposedly inconsistent verdicts, then the Court may conclude that the jury properly performed its function (Mackenzie v The Queen (1996) 190 CLR 348 at 368; [1996] HCA 35; “Mackenzie”), although there is also “a residue of cases … where the different verdicts returned by the jury represent … an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty” or “confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law”(Mackenzie at 368).

4. [58]

   There is no general rule that in cases where several offences depend upon the evidence of a single complainant, an acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that the complainant’s credibility was undermined in respect of the counts upon which it has returned guilty verdicts (MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [35] and [89]; “MFA”). In MFA, Gleeson CJ, Hayne and Callinan JJ observed (at [34]):

Submissions

1. [59]

   The applicant’s submissions in support of the ground 1 contended (correctly) that the Crown case was dependent on proof beyond reasonable doubt that the applicant supplied JN with “G”. It was submitted that the Crown case relied almost exclusively on JN’s evidence to prove that fact. The submissions contended that the evidence of JN as to her ingestion of “G” was “utterly unsatisfactory … [and] is not supported by any other evidence, either pharmacological[ly] or otherwise.” The applicant referred to a number of matters bearing on JN’s credibility including her disclosures on 13 June 2016 that the perpetrator threatened her with a gun which was later disclaimed in her JIRT interview and pre-recorded evidence as well her statement on 13 June 2016 that she drank half a bottle of whiskey which she also later disclaimed. The submissions also referred to her varying descriptions of the sexual intercourse with the perpetrator at the applicant’s home and the false allegations she made against her father.

2. [60]

   In relation to ground 2, the applicant submitted that the acquittals on Counts 6 and 8 demonstrates that the jury were either not satisfied beyond reasonable doubt that the applicant had sex with JN at the “brothel” or that she was under the influence of the three drugs at that time. It was contended that the jury must have had a reasonable doubt about her “truthfulness” on those issues “as distinct from her reliability”. This was said to be inconsistent with the jury’s acceptance, in convicting the applicant on Counts 3 and 4, that the applicant supplied JN with “G” and that she was under its influence at the time of sexual intercourse with the applicant .

3. [61]

   The Crown submitted that the jury were entitled to accept that JN was credible and reliable in respect of those parts of her case that were necessary to establish the disputed elements in relation to Counts 3 and 4. The Crown pointed to the age and vulnerability of the victim and the effect of even the undisputed aspects of the events as matters the jury could consider in addressing her explanation for what she said about her father and the various inconsistencies between her disclosures on 13 June 2016 and subsequently. The Crown submitted that JN had been consistent in her evidence that she told the applicant she was 14 years old. The Crown contended that Masevicius’ evidence that he believed JN when she said she was 18 years old was referable to meeting her in a different context to when the applicant met her, namely upstairs at a “swingers bar”. In contrast, the applicant met JN at a train station where she was thinking of ending her life. So far as the consumption of “G” is concerned, the Crown contended that the jury were entitled to reject the applicant’s evidence and accept JN’s evidence. The Crown accepted that JN’s blood test was unable to detect “G”, but noted Mr Farrar’s opinion that the drug “is very rapidly metabolised in the body” and that JN’s description of how she felt after drinking the water was consistent with the side-effects of “G”.

4. [62]

   The jury were presented with a difficult task. On the one hand there were significant inconsistencies between JN’s disclosures over time. Her disclosures on 13 June 2016 only concerned Counts 1 to 4 and included a number of details of potential significance which she either disavowed later or said she could not remember. Hence, on 13 June 2016 she agreed that she was threatened with a gun and that she told the perpetrator she did not want to have sex. In her JIRT and pre-recorded evidence she disclaimed any suggestion that she was threatened with a gun and agreed the sex was effectively consensual although she was affected by drugs.

5. [63]

   Nothing in JN’s disclosures on 13 June 2016 addressed her time with Masevicius even though that immediately preceded her calling triple‑0 and she later said that was the reason she contacted police. Given just the accepted facts concerning what happened to her that weekend, including the drug consumption as well as her age and general vulnerability, it can be expected that JN was in some form of distress and shock when she first contacted triple‑0 and the police (see [29]). However, by the time she spoke to the paramedic she was described as “alert” and “coherent”. As noted, the JIRT was not conducted until May 2017. The JIRT appears to be the first occasion that she mentioned the alleged sexual assaults by Masevicius which was the basis for Counts 9 to 11. It was not until May 2018 that JN described the conduct of the applicant in the “brothel” that was the basis for Counts 5 to 8.

6. [64]

   On the other hand, much of the basic narrative relevant to Counts 1 to 4 that JN disclosed on 13 June 2016 and discussed in the JIRT was either borne out by forensic evidence or common ground at the trial (or both). Hence, the toxicology report confirmed that JN had consumed “ice” and the DNA reports confirmed the presence of the applicant’s semen on her underwear. The applicant agreed with her basic narrative as to how they met, that he supplied her with marijuana and “ice”, that he gave her a drink of water, that they had sex and that he took her to something that was either a brothel or a “swingers’ bar” (the difference between the two not being material).

7. [65]

   In terms of the consistency of the verdicts on Counts 3 to 8, the jury’s reasoning path seems reasonably clear. In relation to Counts 3 and 4 the only disputed elements concerned the supply to JN of “G” and whether the accused did not honestly and reasonably believe that JN was under 16 years of age. The jury accepted JN’s evidence as honest and reliable in relation to both matters and rejected the applicant’s account.

8. [66]

   The jury’s verdicts on Counts 5 to 8 most likely reflected the jury not being satisfied beyond reasonable doubt that the sexual intercourse the subject of those counts happened. The applicant accepted that the sexual intercourse the subject of Count 4 occurred but denied any further sexual contact with JN after that. With Counts 5 to 8, the jury may have accepted JN as generally reliable and honest but, given the lateness of her disclosure that she had had sex with the applicant at the swinger’s club (or brothel), they may have required “something additional” (MFA supra), either by way of objective evidence or agreed sexual contact, before being satisfied that it occurred. This is especially so in circumstances where, on the jury’s findings in relation to Counts 1 to 4, JN would have been suffering the effect of consuming three different types of drugs by the time she was at the brothel. There was no such objective evidence and no agreement that sexual contact occurred at the brothel. It follows that I do not consider there was any inconsistency between the verdicts on Counts 6 and 8 and the verdicts on Counts 3 and 4. I would reject ground 2 of the appeal.

9. [67]

   There remains to consider ground 1. The oft cited passage from M set out above adverts to the “advantage” enjoyed by the jury in observing the witnesses give evidence. The extent of that advantage depends on the “form in which the evidence was adduced at the trial and depend[s] on the nature of the issues that arose at the trial” (Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [16]; see for example AJ v R [2022] NSWCCA 136 at [105]). The form of the evidence and the issues that arose in relation to Counts 3 and 4 have already been outlined. The jury enjoyed a considerable advantage in hearing and observing that evidence especially in listening to the evidence of JN’s disclosures in June 2016 including the triple‑0 call when she was still 14, observing her JIRT in May 2017 when she was 15, and then observing her pre-recorded evidence taken in August 2019 when she had turned 18. Even allowing for the false allegations made against her father, I do not accept that it has been shown that it was not reasonably open to the jury to conclude that JN’s evidence was honestly given.

10. [68]

    However, as explained above, the Crown case on Counts 3 and 4 was dependent on proof beyond reasonable doubt that JN was administered “G”. There was some tenuous support for the applicant’s contention that he administered children’s Panadol for JN’s sore throat given Dr Garside’s later observation of JN on 13 June 2016 (see [34]). That said, the jury may very well have concluded that his evidence was carefully tailored to weave its way through the objective evidence against him in relation to Counts 1 to 4, which was considerable at least so far as the consumption of “ice” and his having sex with JN was concerned. Further, his assertion that he gave JN children’s Panadol sits uneasily with his assertion that he believed she was over 18.

11. [69]

    JN was undoubtedly vulnerable and fragile at the time of these events and the applicant undoubtedly preyed on that vulnerability. Her vulnerability rendered her basic narrative more cogent but equally affects the confidence one has in accepting her evidence on details outside of that basic narrative. In that regard, there was no objective evidence to support so much of the Crown case that depended on proof that JN was administered “G”. Further that part of JN’s evidence which supported the Crown case that the drug was “G” was relatively slight. In her JIRT interview, JN described feeling “very fuzzy”. Mr Farrar merely agreed that the description of feeling “fuzzy” was “broadly consistent” with consuming “G” and added that it “can be caused by other things”. It is not difficult to envisage that those “other things” might be JN’s smoking cannabis and methylamphetamine. In any event, the fact that feeling “very fuzzy” could be the result of “other things” means that JN’s description does not establish it was “G” to the relevant standard.

12. [70]

    In the JIRT, JN twice recounted the applicant admitting he put “a drug in the water”. She did not assert that he nominated the particular form of drug that was administered. The only evidence that JN gave in which she stated that the applicant admitted putting “G” in her drink was the portion of her cross-examination set out above (at [20]). That evidence was prefaced by JN stating that she did not remember the “exact words”, something that is not surprising given that she was recounting an event from over three years prior which occurred after she consumed cannabis and methylamphetamine.

13. [71]

    In her various disclosures on 13 June 2016, JN referred to being “drugged” and droplets being added to her water. As noted, DSC Kench said that JN told her that she was sitting on a chair in the perpetrator’s caravan and he gave her “some G” and “that she had to fill her mouth with water and droplets were added to the water in [her] mouth.” Ms Garner-Smith gave evidence that JN “referred to another drug … [s]he believe[d] it was called G”. However, these representations do not specify whether it was supposition on JN’s part that she was given “G” or whether JN was recounting what the applicant told her. It cannot be inferred it was the latter and the former is not sufficient. JN also stated to DSC Burnell that she “lost control of her body”. However, that description is different to what she stated in the JIRT and was stated in a context where on 13 June 2016 JN told the police that the applicant held a gun to her head and she did not consent to having sex whereas, in the JIRT and her pre-recorded evidence she disavowed both suggestions.

14. [72]

    At one level, all this analysis establishes is a (significant) degree of uncertainty about what might be thought to be a peripheral detail of the essence of the allegations made against the applicant, namely that he took advantage of a very vulnerable 14-year-old girl, gave her drugs, and had sex with her. However the manner in which the Crown framed the charges and conducted its case made proof beyond reasonable doubt of this “detail”, that is the administration of the particular drug “G” to JN, crucial to proof of Counts 3 and 4. While I accept that it was (more than) reasonably open to the jury to be satisfied beyond reasonable doubt of the basic narrative of JN’s evidence in relation to Counts 1 to 4, including that she told the applicant she was 14 years old, I do not accept that was so in relation to whether the Crown proved that the applicant gave “G” to JN. Having reviewed the evidence I am satisfied that the verdicts on Counts 3 and 4 were unreasonable and cannot be supported having regard to the evidence.

15. [73]

    I would uphold ground 1.

Orders

1. [74]

   As noted, no count charging the applicant with an offence under s 66C(3) of the Crimes Act was included on the indictment as an alternative to Count 4 and no such count was put to the jury. In the absence of that, and as there was no submission made to this Court that it should consider exercising the power conferred by s 7(2) of the Criminal Appeal Act in relation to Count 4, the possibility of substituting a verdict on that charge cannot be considered (cf Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43). As noted above, the applicant was given an aggregate sentence encompassing all of Counts 1 to 4. As there is no challenge to his conviction on Counts 1 and 2 it will be necessary for him to be resentenced. As the period he has already served in custody well exceeds the indicative sentences for those offences, the matter should be relisted before the District Court to consider the applicant’s bail position as soon as possible.

2. [75]

   In those circumstances I propose the following orders:

3. [76]

   PRICE J: I agree with Beech-Jones CJ at CL for the reasons expressed by his Honour that the applicant’s complaint in ground 2 should be rejected. However, I am unable to concur with the Chief Judge’s conclusion that ground 1 of the appeal should be upheld.

4. [77]

   The relevant evidence and issues in the appeal are comprehensively covered in the Chief Judge’s judgment. His Honour’s detailed recitation of JN’s evidence includes the various inconsistencies between the disclosures made by JN in the triple-0 call, to the police officers on 13 June 2016, and in the JIRT and pre-recorded evidence. It is unnecessary to repeat the evidence or the inconsistencies and I am grateful for the Chief Judge’s judgment.

5. [78]

   The Chief Judge has set out relevant principles applicable to ground 1 at [56] above. In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38]-[39], the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) made the following observations concerning the jury’s advantage in seeing and hearing witnesses:

6. [79]

   I would also add the Chief Judge’s helpful observations in AJ v R [2022] NSWCCA 136 at [102]-[104]:

7. [80]

   In the applicant’s trial, the jury had the advantage of not only having seen and heard the evidence of JN, but also of having seen and heard the evidence of the applicant.

8. [81]

   I agree with the Chief Judge’s finding at [67] above that “[e]ven allowing for the false allegations against her father, I do not accept that it has been shown that it was not open to the jury to conclude that JN’s evidence was honestly given.”

9. [82]

   The trial Judge’s instructions to the jury concerning Count 4 included the essential elements of the offence. It was not in dispute that the applicant had sexual intercourse with JN, who was 14 years old at the time.

10. [83]

    As the applicant had given evidence that JN told him she was 18 and when he saw her, he thought she was 18, the Crown was required to prove beyond reasonable doubt that the applicant did not honestly and reasonably believe that JN was under 16.

11. [84]

    In her JIRT interview, JN said that she told the applicant her age and name in the car on the journey to the caravan where the sexual intercourse occurred. She denied in cross-examination that she told him she was 18. In assessing the conflicting evidence, the jury was entitled to take into account JN’s disclosure of some of her personal problems to the applicant and her lack of reticence in stating in the JIRT interview that she told Mr Masevicius that she was 18. JN explained that she did so because she was scared.

12. [85]

    In assessing the overall honesty and reliability of the applicant’s evidence, the jury was entitled to take into account the conflict between his evidence and that of Mr Masevicius as to the conversation which, according to Mr Masevicius’ testimony, happened at the entrance to the adult shop. Mr Masevicius testified that the applicant told him that his girlfriend was upstairs and she was a swinger. This was significantly different to the applicant’s account of going upstairs with JN, having a quick look, and JN wandering off and talking to another man. He denied speaking to Mr Masevicius.

13. [86]

    The jury had the advantage of seeing and hearing the testimony of both accused and the assessment of their evidence was a matter for the jurors to make.

14. [87]

    It was open to the jury to accept beyond reasonable doubt that JN told the applicant she was 14 before they had sexual intercourse and to find that it was not a reasonable possibility that the applicant honestly believed, on reasonable grounds, that JN was at least 16 or older.

15. [88]

    The trial Judge instructed the jury that the Crown was required to prove that the applicant took advantage of JN being under the influence of cannabis, methylamphetamine (“ice”) and 4-hydroxybutanoic acid (“G”) before they had sexual intercourse at Kogarah. The trial Judge’s instructions included the following:

16. [89]

    The jury was reminded by the trial Judge of the applicant’s evidence that he did not give JN the drug “G” at all and his reliance on Mr Farrar’s evidence that there was no “G” in JN’s system when she was tested. Her Honour further referred to the applicant’s evidence that he gave JN “drops of baby Panadol for her sore throat, and that when [JN] first spoke to the police she said she had had drops put in her mouth, and only said that [the applicant] had given her “G” and admitted to her he had done so in her interview with the police 11 months later.”

17. [90]

    Her Honour had earlier informed the jury of the applicant’s evidence that he had “ice” with JN after the sexual intercourse.

18. [91]

    In [68] above, the Chief Judge deals with the applicant’s evidence that he administered children’s Panadol for JN’s sore throat. I agree with the reasons given by the Chief Judge that it was open to the jury to reject the applicant’s evidence about the children’s Panadol and as to when “ice” was given to JN.

19. [92]

    My sole point of departure from the Chief Judge’s reasons concerns the administration of the drug “G”. The Chief Judge does not accept that it was reasonably open to the jury to find that the Crown had established beyond reasonable doubt that the applicant gave “G” to JN.

20. [93]

    An initial observation to be made about JN’s evidence that she had been given “G” is that it cannot be criticised as being a “recent invention”. Contrary to the trial Judge’s instruction to the jury quoted at [89] above, JN’s complaint that the applicant had given her “G” was not made for the first time during the JIRT (if this is what her Honour intended to convey).

21. [94]

    In the triple-0 call, the first thing JN told the operator was:

22. [95]

    When JN spoke to DSC Kench at approximately 12:30pm on 13 June 2016, JN told her about the male giving her “some G” when she was sitting on one of the chairs in the caravan and that she had to fill her mouth with water and droplets were added to the water in JN’s mouth. DSC Kench could not recall if JN indicated how the “G” made her feel but agreed with the suggestion that JN indicated that it felt “very uncomfortable” and “she kept standing and sitting”. DSC Kench also agreed that JN told her that she had been given some “ice to smoke” and a “couple of cones”.

23. [96]

    DSC Kench agreed that JN told her that “the sex took place without a condom and that he ejaculated inside of her vagina”. She also agreed that JN told her that after a journey lasting approximately 20 minutes, they arrived at a building which JN believed to be a brothel. The police officer did not recall the colour of the brothel that JN described.

24. [97]

    DSC Burnell, who was working with DSC Kench, agreed that she was informed by JN that she had been sexually assaulted and the man gave her “ice”. She also agreed with the suggestion that JN may have told her about being given a “random drug that you would basically give a woman to make her have sex with you” but did not have a specific recollection of the conversation. DSC Burnell agreed that JN said that her mouth was filled with water and droplets were put in. She also agreed that JN said that she then “lost control of her body”.

25. [98]

    DSC Burnell agreed that JN said to her “[h]e ejaculated and pulled out”. She further agreed that after driving with the fellow for “approximately 20 minutes”, JN described arriving at “a brothel” which was black in colour. She agreed JN told her that “the fellow paid for her to stay upstairs at the brothel, then simply left.”

26. [99]

    Ms Samantha Garner-Graham, a paramedic, attended the police station at about 12:10pm on 13 June 2016. She and another paramedic were outside the interview room where JN was with DSC Burnell and DSC Kench. They observed JN while she was talking to the detectives.

27. [100]

    Ms Garner-Graham spoke to JN about half an hour later. She recalled that JN told her that the man who she did not previously know had given her “five to ten smokes of ice” and “approximately half a bottle of whiskey”. Ms Garner-Graham then gave the following evidence:

28. [101]

    In assessing the honesty and reliability of JN’s complaint to DSC Kench and the paramedic that the applicant had given her “G”, the jury was entitled to take into account that the applicant’s semen was located in a sample obtained from JN. The applicant gave evidence that he ejaculated inside JN. He did not use a condom. JN’s early complaint of the applicant ejaculating inside her was both honest and reliable.

29. [102]

    Furthermore, whilst the applicant described the place to which he took JN as an “adult shop” and Mr Masevicius said that he met JN in a “sex shop”, JN’s early complaint of being taken to what she thought was a brothel was proven to be correct. The same may be said of her account of being given “ice” and “cones” to smoke, which the applicant did not deny (although it was his evidence that he had “ice” with JN after the sexual intercourse). The toxicology results confirmed that JN had smoked cannabis and “ice”.

30. [103]

    In the JIRT interview, JN said that the applicant was “smoking weed” out of a bong and “smoking ice” out of a pipe. JN said that she had both the “weed and ice”. JN recalled that she probably had “quite a bit” and it made her feel “a lot more relaxed”. JN said that the drugs were affecting her a lot and making her “really hyper”. JN said that it made her talk a lot, but she did not remember what she was talking about at that point.

31. [104]

    JN said that she and the applicant took drugs and talked for “probably… 2 hours”.

32. [105]

    JN said that the applicant went outside and came back with a cup of water in a “normal… glass cup”. JN then said, “So I drank it, and then I don’t… I don’t remember much after that.” She said that she felt “very fuzzy”. JN said that she was under the influence of drugs and the applicant told her later that he had “put something in the water”. JN did not remember exactly what it was that the applicant said he put in the water. Later in the JIRT interview, JN said that it was during the car ride that the applicant told her about putting something or “a drug” in the water.

33. [106]

    In cross-examination, although JN did not remember the applicant’s exact words, she recalled that he had told her about putting a drug in the water by the name of “G”.

34. [107]

    She did not remember telling police at the police station that her mouth was filled with water and droplets put in her mouth before having sex with the applicant. When asked if her mouth was filled with water and droplets put in, JN denied it.

35. [108]

    In his evidence, summarised at [36]-[39] above, Mr Farrar said that the effect of smoking methylamphetamine would have caused JN to be “[v]ery hyperactive”. This description of the impact of smoking “ice” is consistent with JN’s evidence that the “weed and ice” were affecting her a lot and making her “really hyper”.

36. [109]

    Mr Farrar’s evidence concerning “G” included the following:

37. [110]

    As may be seen from Mr Farrar’s evidence, the effects on a person of taking “G” may vary. This was a matter for the jurors to consider when they assessed DSC Kench’s evidence that JN indicated that “G” made her feel “very uncomfortable” and she “kept standing and sitting”, and JN’s description to DSC Burnell that she “lost control of her body”.

38. [111]

    In assessing the weight to be given to the police officers’ evidence, the jury was entitled to take into account that JN was in “some form of distress and shock” when she first contacted triple-0 and the police, as the Chief Judge mentions at [63] above. Another matter that the jury would not overlook is that JN had also smoked “ice”.

39. [112]

    Mr Farrar’s opinion that “fuzzy” and “hazy” were “good descriptions” was consistent with JN’s evidence that after drinking the water, she felt “very fuzzy”.

40. [113]

    In my view, it was open to the jury to be satisfied beyond reasonable doubt that the applicant gave “G” to JN.

41. [114]

    There were undoubtedly inconsistencies in JN’s evidence. However, on the whole of the evidence, these inconsistencies were not such that they ought to have caused the jury, acting rationally, to entertain a reasonable doubt of the applicant’s guilt on Count 3 and 4.

42. [115]

    I am satisfied that it is not a significant possibility that an innocent person has been convicted.

43. [116]

    I would dismiss ground 1 of the appeal.

44. [117]

    For these reasons, I propose the following orders:

    1. (1)

       Grant leave to the applicant to raise grounds 1 and 2 of his notice of appeal;

    2. (2)

       Dismiss the appeal.

45. [118]

    LONERGAN J: I have had the significant advantage of reading the judgments of Beech-Jones CJ at CL and Price J in draft.

46. [119]

    I am grateful to Beech-Jones CJ at CL for his comprehensive outline of the evidence and their Honours’ reference to the principles to be applied to this Court’s task on this appeal.

47. [120]

    I agree with Beech-Jones CJ at CL and Price J that ground 2 of the appeal should be dismissed for the reasons given by Beech-Jones CJ at CL.

48. [121]

    I respectfully disagree with the conclusion reached by Beech-Jones CJ at CL regarding ground 1. Having carried out my own independent assessment of the sufficiency and quality of the evidence, I agree with the analysis of Price J as to why it was open to the jury to be satisfied beyond reasonable doubt that counts 3 and 4 were established on the evidence.

49. [122]

    Of key significance, as highlighted by Price J, was the immediacy and constancy of JN’s complaints that underpin the elements of the s66C(4) (and ss5(g)) offence that comprised count 4. Despite her obvious distress when being assisted by police and medical personnel on 13 June 2016, JN told the police and the paramedic that she had been given a liquid substance, that the applicant told her it was “G”, or what she termed to be a “date rape drug” or “a drug to make her want to have sex with him” and that she had been given ice, weed and the “G” prior to sexual intercourse taking place. This sequence of events was maintained in her interview with the police eight months later and when she ultimately gave evidence in August 2019.

50. [123]

    In contrast, the applicant’s account of events given at the trial in 2019 comprised a cannily constructed attempt to undermine any elements of count 4 (and by necessary effect, count 3), that could not be corroborated by other evidence.

51. [124]

    He gave an opportunistic and palpably implausible explanation for the droplets he gave JN in water. He denied it was “G”, no doubt by the time he gave this explanation, knowing that the presence of “G” could not be confirmed on urine testing because of its very short half-life, as Mr Farrar the pharmacologist had made clear. He claimed the ice was smoked only after intercourse took place. Obviously, he could not deny there was weed and ice provided as their presence was confirmed on the toxicology results. Unlike the “G”, they remain detectable for a relatively long period of time.

52. [125]

    The jury obviously rejected the applicant’s account and accepted as true the relevantly significant parts of JN’s accounts. The jury had the advantage over this Court of seeing and hearing the evidence of JN and the applicant. I am satisfied that it was open to the jury on all of the available evidence to convict the applicant of counts 3 and 4.

53. [126]

    I agree with the orders proposed by Price J.