Goldman v R

1. [1]

   PAYNE JA: On 20 July 2020, the applicant, Mr Goldman, stood trial before Hock DCJ and a jury on an indictment containing the following five counts:

   1. (1)

      Count 1: assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW);

   2. (2)

      Count 2: assault contrary to s 61 of the Crimes Act;

   3. (3)

      Count 3: sexual intercourse without consent contrary to s 61I of the Crimes Act;

   4. (4)

      Count 4: indecent assault contrary to s 61L of the Crimes Act; and

   5. (5)

      Count 5: sexual intercourse without consent contrary to s 61I of the Crimes Act.

2. [2]

   The applicant was acquitted of counts 1, 3, 4 and 5 and convicted of count 2.

3. [3]

   The Crown case at trial was that the complainant and applicant were in a consensual intimate relationship which started in October 2016 and deteriorated over time as the applicant became progressively more aggressive and violent. It was alleged that:

   1. (1)

      the applicant pushed the complainant down a set of stairs at his parents’ house in 2018 (count 1);

   2. (2)

      the applicant choked the complainant on the night of 12 May 2018 while she was staying at his parents’ house (count 2);

   3. (3)

      as the complainant was getting ready at her home to attend a school formal event in September 2018, the applicant arrived at her house and sexually assaulted her (count 3); and

   4. (4)

      on or about 19 November 2018, while the applicant and complainant were at a friend’s party, the applicant sexually and indecently assaulted the complainant in the applicant’s car (counts 4 and 5).

4. [4]

   The defence case was that the complainant and applicant had engaged in consensual “rough” sex throughout their intimate relationship.

5. [5]

   In relation to count 2, the defence case was that the choking incident occurred during consensual sexual intercourse and the complainant had consented to the choking.

6. [6]

   On 14 December 2020, the applicant was sentenced to a community correction order pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 24 months commencing on that date and expiring on 13 December 2022. The Court also imposed an Apprehended Domestic Violence Order for a period of five years subject to the usual mandatory conditions and the additional condition that the applicant not approach or contact the protected person by any means whatsoever, except through the applicant’s legal representative.

Factual background

1. [7]

   The complainant first met the applicant in September 2016 when she was 15 years old and in Year 10 at school. The applicant was then 16 years old and in Year 11 at school. They began a relationship in October 2016 and shortly thereafter commenced having regular sexual intercourse. The complainant gave evidence that the applicant would call her names, such as “stupid” or “fat”, which would upset her. The applicant would also be violent with her, by doing things like pinching her, bending her fingers back and kicking or slapping her, which would leave red welts, which would occasionally turn into bruises. The complainant did not tell her parents at the time because she believed they would not let her continue to see the applicant if they knew how he was treating her.

2. [8]

   Over time, the applicant became increasingly jealous and controlling and attempted to socially isolate the complainant. Several of their mutual friends and acquaintances gave evidence to this effect. By about August 2018, the complainant had broken up with the applicant, but continued occasionally to engage in sexual intercourse with him. The complainant explained that she exchanged messages with the applicant, even after the events subject to counts 4 and 5, because she loved him for a very long time, was in a relationship with him, was worried about his feelings and mental health and still cared about not hurting him.

3. [9]

   The complainant disclosed the circumstances giving rise to counts 4 and 5 to her mother in early December 2018. In late 2018 or early 2019, the complainant disclosed the circumstances giving rise to count 5 to the mother of one of her friends. Later in January 2019, the complainant had a telephone conversation with that person discussing whether she should report the matter to the police. The complainant first reported the matter to police on 6 February 2019.

The evidence at trial

1. [10]

   The witnesses at the trial were the complainant, the complainant’s mother, the complainant’s father, the mother of the complainant’s school friend, 11 friends and acquaintances of the applicant and complainant, the nanny who looked after the complainant’s brothers, Detective Sergeant Barham (the officer in charge of the investigation) and Senior Constable Allen (an electronic evidence specialist). The applicant did not give evidence at trial or call any witnesses.

2. [11]

   Count 1 related to events in 2018 when the complainant was at the applicant’s home with her younger brother. As she walked down the stairs, she felt what she described as a push or “kick shove” which caused her to topple over. She fell onto her bottom or lower back and slid down a couple of stairs. She could not remember how many stairs she slid down. The complainant believed the applicant used his foot but said it may have been his knee. The complainant said she was standing on the middle landing when she felt the force on her and “could only guess” there were about 10 or 15 stairs on the staircase because she had never counted them. As a result of this incident the complainant developed bruises on her bottom.

3. [12]

   Count 2 occurred on 12 May 2018. The complainant gave evidence that the applicant would often place his hand on her neck and squeeze it during sexual intercourse. The complainant consented to this practice, which started quite early in the relationship, so long as it was not violent.

4. [13]

   On this occasion, the complainant was in bed with the applicant at his home at about 10pm or 11pm. The applicant placed both his hands around the complainant’s neck and put the weight of his body down onto her neck to the point where she could not breathe. The complainant said that she started crying and begged the applicant to get off her, but he did not lessen the pressure. She could feel the “blood, like, the throbbing in my head. So, it was long enough for him to have cut the circulation of – of the veins or whatever the biological reason is”. The complainant eventually pushed him off. She described the applicant’s build as “quite athletic … he’s played a lot of sports in his life so he’s got quite strong arms”. She knew that his arms were strong because she “felt their strength in relation to – to him choking me and to pinning me down and also because you have to be very strong to play water polo”.

5. [14]

   Count 3 related to an incident that allegedly occurred on 28 September 2018. The complainant had agreed to accompany her friend, JP, to his school formal. At about 1:02pm the complainant received a message from the applicant asking her to call him as he needed to talk urgently (a record of that message was contained in Exhibit 5). The applicant arrived at her home later that afternoon because she was getting ready to go to the formal. On the complainant’s version of events, the applicant forced himself upon her and raped her in her bedroom when she was getting dressed. The defence case was that the complainant and applicant had consensual sexual intercourse in the complainant’s bedroom on that date.

6. [15]

   Counts 4 and 5 allegedly occurred on the evening of 19 November 2018 at a party hosted by a mutual friend, C. The alleged offending occurred in the applicant’s car which was parked across the road from C’s house.

7. [16]

   During cross-examination it was suggested to the complainant, and the complainant denied, that she had consensual intercourse with the applicant in the car and that during the act of intercourse the applicant was sitting on the seat with his legs down into the footwell of the car and the complainant was sitting across him. It was also suggested, and the complainant denied, that the applicant did not engage in any improper conduct in the back of his car that evening.

8. [17]

   The applicant sought leave to appeal against his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the following ground:

Consideration

1. [18]

   In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-493, Mason CJ, Deane, Dawson and Toohey JJ stated:

2. [19]

   Subsequently, in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ considered, at [34], the reasons why a jury may arrive at a verdict of acquittal:

3. [20]

   McHugh, Gummow and Kirby JJ made it clear that “imperfections of evidence” are “not uncommon in most trials” and said, at [96], in relation to the role played by the jury:

4. [21]

   These principles were reiterated by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. French CJ, Gummow and Kiefel JJ, in their joint judgment, stated at [13]-[14]:

5. [22]

   At [22], their Honours said:

6. [23]

   In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, a case that concerned the prosecutor’s alleged misconduct in the course of a criminal trial, Hayne J expressed the test for an intermediate appellate court (when considering whether the convictions sustained below were “unsafe or unsatisfactory”) in the following terms:

7. [24]

   The High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 made clear that there is no inconsistency in the formulation of the test in Libke on the one hand and in M on the other:

8. [25]

   The jury’s advantage includes but is not limited to its capacity to see and hear the witnesses give their evidence. As the High Court explained in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]:

9. [26]

   The legal test applied to the ground of unreasonable verdict based on alleged inconsistency is one of logic and reasonableness: MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35. In MacKenzie (at 366), Gaudron, Gummow and Kirby JJ approved the test as stated by Devlin J in R v Stone (Court of Appeal (Criminal Division) (England and Wales), 13 December 1954, unrep). In order to succeed on this ground, an applicant:

10. [27]

    The applicant submitted that the ground advanced in this appeal was not limited to a consideration of whether it was open to the jury, on the whole of the evidence, to convict the applicant. Rather, the appeal ground called for an examination of the whole of the facts and circumstances: “that goes beyond ‘the whole of the evidence’ and includes an examination of the significance of the acquittals, and what can be read into those verdicts.” Those words were taken from a passage of the judgment of Simpson J (with whom McClellan CJ at CL and Latham J agreed) in R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, which should be set out in full:

11. [28]

    The approach adopted by Simpson J remains the correct approach: Jafary v R [2018] NSWCCA 243 at [37]; Holt v R [2021] NSWCCA 140 at [108].

12. [29]

    In Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, the appellant was charged with three counts of sexual intercourse with a female child. The jury convicted on two of the three counts and acquitted on the other. By majority the High Court set aside the convictions. Their Honours (Gaudron, McHugh and Gummow JJ) found that the acquittal damaged the credibility of the complainant with respect to all counts in the indictment. They considered (at 453) that:

13. [30]

    In AH v R [2019] NSWCCA 152, Simpson AJA (with whom Button and Lonergan JJ agreed) observed, at [56], that it “seems that too much has been read into the judgment in Jones.”

14. [31]

    In R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, Spigelman CJ undertook an exhaustive review of decisions of this and other appellate courts since Jones, and concluded:

15. [32]

    After also considering the cases in which Jones had been applied, Wood CJ at CL said:

16. [33]

    Also relevant to this appeal is the judgment of McHugh J in KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 where his Honour explained:

17. [34]

    Any assumption that acquittals on some counts and convictions on others necessarily denotes rejection of a complainant’s credibility or reliability was rejected in MFA: see at [34], extracted at [19] above. I agree with the conclusion of Simpson AJA in AH v R that:

18. [35]

    This Court must scrutinise the evidence and make its own assessment of the reasonableness of the guilty verdict. However, in making that assessment, the Court should properly be conscious of the advantage of a jury over an appellate court in that there would be aspects of the case that would not be reflected adequately in the written record: MFA at [23]; ML v R [2015] NSWCCA 27 at [46].

19. [36]

    In this appeal, the question of whether the applicant based his claim of unreasonableness in any way on an alleged inconsistency between the acquittals on counts 1, 3, 4 and 5 and the conviction on count 2 was controversial. To the extent that such a case was conducted by the applicant, I reject it.

20. [37]

    Whilst Mr Bellanto QC, who with Mr Bicanic appeared for the applicant, at various points in his written and oral submissions disclaimed reliance on an alleged inconsistency between the acquittals on counts 1, 3, 4 and 5 and the conviction on count 2, it will be recalled that his sole ground of appeal provided, relevantly, that the guilty verdict “is unreasonable and cannot be supported having regard to … the acquittals in relation to counts 1 and 3-5” (emphasis added).

21. [38]

    The applicant’s written and oral submissions contained a number of references to an alleged inconsistency. For example, the applicant made the following submissions:

    1. (1)

       “Having regard to the jury verdicts and the issues in the case, the jury did not find the complainant to be an honest, accurate and reliable witness beyond reasonable doubt in relation to counts 1 and 3-5. Given the doubts in relation to the complainant’s credit and reliability led to acquittals in relation to those counts, these doubts carried over in relation to the consideration of count 2”;

    2. (2)

       “In respect of [count 3], the only reasonable explanation for the acquittal is a doubt about the credibility of the complainant. At the very least, the verdict reflected a real difficulty in respect of the nature and quality of evidence in respect of this count”;

    3. (3)

       “When assessing the entirety of the evidence, the deficiencies, inconsistencies and incontrovertible evidence that cuts across the complainant’s version cannot be ignored. It is a truism that one can accept some parts of a witness’ evidence and reject other parts (and indeed the jury were directed in this respect), however that is not to say that those parts that are rejected are excised from the evidence without consequence to the credit and reliability of the witness. In this case, the complainant has demonstrated herself to be thoroughly unreliable and lacking in credit”;

    4. (4)

       “The phrase used [in TK] is ‘significance of the acquittals and what can be read into those verdicts’… Now in using it in the manner that we have simply picks up what her Honour said in TK. We’ve used it in the sense that one has to go through the various grounds and the consequence of the grounds, but more importantly from our point of view it’s an endeavour to cover the whole of the evidence which gives rise to the difficulties we say with the complainant’s evidence”; and

    5. (5)

       “The point simply is that the acquittals can be taken into account and the consequence of those acquittals can be taken into account. How this Court deals with them is a matter for the Court and also relevant though is that if something can be read into the acquittals it is a matter for the Court to do so, and it really is a Markuleski point or a Markuleski approach that we advance in relation to the credit of the complainant.”

22. [39]

    For this reason I will first address the sole ground of appeal on the contingent basis that the applicant is seeking to have this Court take into account an alleged inconsistency between the acquittals on counts 1, 3, 4 and 5 and the conviction on count 2.

23. [40]

    It is only where verdicts “cannot stand together” or where “no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion” that a jury’s verdict will be set aside as inconsistent: MacKenzie at 366.

24. [41]

    In the present case, I have concluded that a reasonable jury who applied their minds properly to the case could have found the applicant guilty of count 2 but not guilty of counts 1, 3, 4 and 5. The trial judge instructed the jury to consider each count individually and to consider whether the elements were made out in respect of each individual count. The jury could properly have concluded that the evidence led to different verdicts. As I will explain, there is no reason to think that the complainant’s credibility was damaged by any of the 19 matters to which the applicant refers for the purposes of this appeal. It was only the reliability of the complainant’s account that raised any doubt. In this regard, it is significant that count 2 was the only count supported by immediate, electronically recorded complaint evidence which significantly supported the reliability of the complainant’s account. I set that evidence out at [64]-[66] below.

25. [42]

    The jury had an opportunity to assess the complainant and the applicant. Subject to the principles I have described above, the assessment of the credibility and reliability of the complainant was very much a matter within the province of the jury.

26. [43]

    I am satisfied that there is a rational explanation for the acquittals other than doubts about the complainant’s credibility. There is no reason to think by reason of the acquittals on the other counts that the jury must have had a doubt about count 2.

27. [44]

    I will now address the applicant’s principal submission, that there was in all the circumstances a miscarriage of justice because the complainant was unreliable and lacking in credit, and the nature and quality of the evidence, as a whole, and the acquittals for counts 1, 3, 4 and 5, was such that the jury ought to have entertained a reasonable doubt about the applicant’s guilt in respect of count 2.

28. [45]

    There were 19 matters said by the applicant to reflect adversely on the credibility and reliability of the complainant. I will address each in turn.

29. [46]

    The applicant contended that the complainant gave a number of “different versions” in relation to this allegation.

30. [47]

    The complainant gave the following evidence in chief:

31. [48]

    The complainant agreed with the cross-examiner that she had accidentally slipped down the stairs on another occasion when she fell heavily onto her bottom. The complainant was shown a photograph of the stairs. She agreed that the estimate of 15-20 stairs was wrong and that there were only eight stairs in that section. She said she fell down from the landing but slid at the bottom stair. It was put to her that the applicant never pushed her down the stairs. The complainant disagreed. The complainant also disagreed with the proposition that if she did fall down the stairs it was accidental:

32. [49]

    Although the complainant was mistaken in her estimate about the number of stairs she fell down, she consistently maintained that she had fallen from the landing but slid down a couple of the stairs at the bottom. The complainant’s account of what occurred involved her not being able to see whether the applicant kicked or pushed her down the stairs. She initially said the applicant used his foot but then said it could have been his knee. The trial judge directed the jury that they must be satisfied that the applicant’s actions were not an accidental push or “kick shove”.

33. [50]

    I reject the applicant’s submission that the complainant not knowing the precise number of stairs and whether it was a foot or a knee behind her that caused her to be injured affects her reliability in any significant way. The suggestion it affected her “probity”, if seriously pressed, must also be rejected. A mis-description of the precise number of stairs in a particular flight of stairs is such a commonplace mistake, for virtually everybody, that the reliability of an account of falling on those stairs is not called into question by mistaking their number. The applicant was behind the complainant. Her inability to discern whether a foot or a knee behind her caused her to be injured does not lead me to doubt the complainant’s reliability or credibility.

34. [51]

    The applicant submitted that the complainant complained only to her parents about this incident, and only then at a late stage. She told her mother that she had fallen down the stairs and did not say that she had been pushed. The complainant’s mother gave evidence that “I don’t recall whether she said pushed or tripped but it was apparent that Matthew had – had made her fall by pushing or tripping. I think she said tripped”. The complainant’s father gave evidence that the complainant may have told him she had been tripped: “She may have used that word, but the sense was that he was responsible for her falling down the stairs”.

35. [52]

    The complainant gave evidence that she may have told her friends at school but did not tell her parents because she wanted to “minimise the harm [that the applicant] was doing to her.” I regard that as a perfectly reasonable explanation for this conduct, and as not affecting the reliability or credibility of the complainant.

36. [53]

    The complainant eventually told her mother in October 2018, and later her father, but described what happened to her in terms of being pushed or tripped, rather than a “kick shove”. The absence of immediate and consistent complaint in respect to this count was featured in the defence closing address.

37. [54]

    Whilst, perhaps, the absence of immediate and consistent complaint might have caused the jury to doubt the reliability of the complainant’s account, the lack of immediate complaint has no bearing in this case on the complainant’s credibility.

38. [55]

    The Crown opened the case on the basis that the incident occurred in “early 2018”. During the trial, the Crown was granted leave to amend the indictment period on count 1 from January to March 2018 to the whole of 2018. The applicant submitted that this was because no evidence was adduced as to when count 1 was alleged to have occurred.

39. [56]

    In examination in chief the complainant was asked if she could recall “something that happened in 2018 at [the applicant’s] house and the stairs”. She said “yes”. No further evidence was led from the complainant as to the approximate date this incident occurred. It was not suggested to the complainant in cross-examination that she had changed her evidence as to when the incident occurred or had made a prior inconsistent statement.

40. [57]

    Queen’s Counsel for the applicant addressed the jury at some length in relation to the uncertainty as to the time when count 1 was said to have occurred. It was submitted that the standard or quality of the evidence in respect to count 1 was such that the jury could not be satisfied beyond reasonable doubt. The trial judge directed the jury that they were:

41. [58]

    It may well be that the jury did take this inexactitude about dates into account, as they were entitled to do, in assessing the complainant’s reliability for the purposes of count 1. Any confusion about dates, however, has no effect in my view on whether the complainant’s account of count 2 should have been believed.

42. [59]

    The defence took photographs of the stairs and introduced those photographs into evidence as Exhibit G27. They showed that there were eight stairs from the landing to the ground.

43. [60]

    The applicant appears to have submitted that the Crown’s failure to take similar photographs reflects on the credibility and reliability of the complainant. That submission is without merit. The extent to which the Crown did or did not tender photographs of the stairs has nothing whatever to do with the reliability or credibility of the complainant’s evidence.

44. [61]

    The Crown opened its case on the basis that count 2 occurred during sexual intercourse, and closed on a different basis, following the complainant’s evidence that sexual intercourse may have happened earlier that evening but not at the time of the choking.

45. [62]

    It was not suggested to the complainant that she had made a prior inconsistent statement on this issue. I conclude that the change in the Crown’s opening as to the precise timing of the sexual intercourse on that particular occasion has no bearing on the complainant’s credibility or reliability.

46. [63]

    The applicant placed considerable emphasis on the fact that after the choking the complainant stayed overnight at the applicant’s house and left the next morning:

47. [64]

    Immediately after the incident the complainant sent a message via Facebook messenger to the nanny who looked after her brothers (Exhibits 3 and 34). The message was recorded as having been sent at 10:47pm. The complainant sent a series of messages that read as follows:

48. [65]

    The nanny replied:

49. [66]

    The exchange continued as follows:

50. [67]

    The nanny gave the following evidence during cross-examination:

51. [68]

    The complainant did not give any evidence in chief of having her car at the applicant’s house on that evening. The applicant submitted that this was a deliberate omission, affecting her reliability and “probity”. It was submitted that the complainant could have left the applicant’s house at any moment.

52. [69]

    I reject the applicant’s submission. The complainant’s evidence was clear. She decided to stay because she had told her parents she was staying with a friend (not the applicant) and it was very late. She did not tell her parents about the incident because she knew they would be angry that she was staying at the applicant’s house and would also be very angry with the applicant. It is unsurprising that the jury accepted the complainant’s evidence on this issue. The evidence does not give rise to any doubt about the complainant’s reliability or credibility.

53. [70]

    To the contrary, the contemporaneous electronic messages between the complainant and the nanny strongly support the complainant’s reliability.

54. [71]

    The applicant submitted that the evidence at trial established that choking and “rough sex” were part of the consensual sexual relationship between the complainant and the applicant. Exhibit G17 contained the following record of messages between the applicant and complainant dated 2 July 2018 to 3 July 2018:

55. [72]

    The applicant submitted that it was significant that the complainant did not give those messages to the police.

56. [73]

    I am not satisfied that there was anything established in the evidence about the method by which the police obtained electronic messages from the complainant warranting any criticism whatever of the complainant’s behaviour in providing messages. The applicant’s assertion that electronic material damaging to the Crown case was deliberately withheld by the complainant was not established by the evidence. I am not satisfied that anything affecting the reliability or credibility of the complainant was established in this regard.

57. [74]

    In cross-examination it was asserted on behalf of the applicant that on 12 May 2018 the consensual sexual activity she engaged in with the applicant involved “consensual light choking” and that the reason she became angry and started crying was because the applicant had refused to perform oral sex on her. The complainant denied these assertions:

58. [75]

    The applicant submitted that the above cross-examination “put a different complexion on the context within which the incident was said to have occurred”. I disagree.

59. [76]

    The complainant did not agree with the assertions being made to her on behalf of the applicant. She was cross-examined with the quite misleading suggestion about conversations she was alleged to have had with the applicant on 13 May 2018. No messages from that date were shown to the complainant or tendered in the defence case.

60. [77]

    I reject the submission that there is a basis to conclude that there was evidence that the complainant became angry and started crying on this occasion because the applicant had refused to perform oral sex on her.

61. [78]

    Nothing in this exchange reflects unfavourably upon the complainant’s reliability or credibility.

62. [79]

    The nature of the relationship that existed between the complainant and applicant in the lead up and subsequent to count 3 was said by the applicant to be a significant issue at trial. It was the subject of much cross-examination. The Crown opened its case on the following basis:

63. [80]

    During cross-examination, the complainant accepted that she had consensual sexual intercourse with the applicant irregularly:

64. [81]

    The complainant said that by September 2018 she was focused on her HSC trials. She told the applicant she was not going to have sex with him anymore but changed her mind a couple of times. The complainant agreed at one time to his request to be “friends with benefits” because she did not want the toxicity of the relationship and just wanted to see him casually.

65. [82]

    I have considered this evidence carefully. The jury may have thought that it affected the complainant’s reliability about this count. The evidence has no effect on the complainant’s overall credibility.

66. [83]

    The applicant submitted that the ongoing casual relationship between the complainant and applicant in the lead up to count 3 was also demonstrated by Exhibit G26, which comprised a series of messages between the two on 22 September 2018 (six days prior to the allegation in count 3). An extract of those messages reads as follows:

67. [84]

    I have considered this evidence carefully. The jury may have thought that it affected the complainant’s reliability about this count. The evidence has no effect on the complainant’s credibility.

68. [85]

    The applicant submitted that the nature of the relationship was also demonstrated by the overnight trip to Canberra on 24 August 2018, in which the applicant and complainant attended the Australian National University open day, went to dinner, stayed in the same apartment overnight, slept in the same bed and travelled to and from Canberra together. Exhibit G19 showed that the complainant sent the applicant a Facebook message on 25 August 2018 at 11:46pm stating “waking up in bed next to you was a dream”.

69. [86]

    The complainant said in examination in chief that her mum told her that she could not go to Canberra unless she was accompanied by someone who had their driver’s licence. At the time, although she considered the relationship to be “broken up”, she still wanted to be friends with the applicant and still liked him.

70. [87]

    It was put to the complainant in cross-examination that she had consensual sexual intercourse with the applicant overnight in Canberra. The complainant replied: “I think so, but I don’t remember that” and later said “I remember us kissing, but it was a very long time ago”.

71. [88]

    The complainant agreed with the suggestion put to her in cross-examination that at the time of the trip to Canberra on 24 August 2018, although they were not in a “full-on romantic relationship”, she would still occasionally have consensual sexual intercourse with the applicant.

72. [89]

    I have considered this evidence carefully. Whilst the jury may have thought that it affected the complainant’s reliability about this count, I reject the applicant’s submission that “it was apparent that the complainant had attempted to portray a misleading picture of the relationship at this time to the jury”. No such conclusion arises fairly on the evidence. This is not a matter that adversely affected the complainant’s credibility.

73. [90]

    The messages contemporaneous with count 3 on 28 and 29 September 2018 were marked as Exhibit G22.

74. [91]

    The complainant gave evidence in cross-examination that sexual intercourse occurred at about 5pm on 28 September 2018. Later, when shown Exhibit G22, the complainant gave the following evidence:

75. [92]

    The complainant’s explanation for why she continued to respond to the applicant’s messages even after the alleged offending was:

76. [93]

    In respect to why she sent “I’m really sorry” at 5:46pm, the complainant explained:

77. [94]

    The applicant submitted that the messages following the alleged assault on 28 and 29 September 2018, as recorded in Exhibit G22, contained no complaint of sexual impropriety and revealed no cessation in contact. The applicant submitted that there was no complaint to anybody in the house and the series of Facebook messages were consistent with the defence case of consensual sexual intercourse. The applicant submitted that the content of Exhibit G22 was entirely at odds with the complainant’s version of events.

78. [95]

    At 6:44pm, the applicant sent a link to the complainant. A screenshot of the linked page was marked Exhibit G23. It was a Facebook post which stated:

79. [96]

    The complainant replied “yuckkk”. The applicant sought to emphasise the fact that the complainant had also “reacted” to the message from the applicant containing the link by attaching an emoji to it.

80. [97]

    The complainant’s evidence was “I suppose I just didn’t really think much of it and I definitely didn’t connect it to the assault”, and it was “not true at all” that her reaction was connected to anything that had just occurred between them. The exchange during cross-examination was as follows:

81. [98]

    The complainant gave evidence that she was either at the formal or at pre-formal drinks when she received the message. She did not want to engage with the applicant at that point so simply just “reacted” to it and wrote “yuck”.

82. [99]

    I do not draw any inference unfavourable to the complainant’s reliability or credibility based on the emoji “reaction” to the applicant’s message.

83. [100]

    It was common ground that there was no immediate complaint by the complainant in respect to this count. However, there was credible evidence from the complainant explaining why she did not complain to either of her parents at the time. She did not tell her father because she felt ashamed and did not want to upset him. She did not tell her mother for the same reason and because the applicant was still there at their home. She did not want to tell anyone at the formal what had happened, or even think about it, because it was too painful to think about.

84. [101]

    The complainant eventually did tell her mother about an occasion when she was getting ready for a formal and the applicant tried to force himself on her while she was getting ready in her room. Her mother could not be certain when the complainant told her this. The complainant’s mother also gave evidence that after the complainant had told her what had happened to her at C’s party (counts 4 and 5) she also told her that the applicant had raped her when she was getting ready for her formal (although she could not remember the exact words that the complainant had used).

85. [102]

    JM, who knew both the applicant and complainant, gave the following evidence in cross-examination:

86. [103]

    I have carefully considered this evidence. None of it causes me to doubt the credibility of the complainant.

87. [104]

    The applicant submitted that it was significant that the complainant nevertheless went to the school formal and after party and returned home well after midnight. During cross-examination, her date, JP, gave evidence that the complainant “seemed fine”, “nothing out of the ordinary”.

88. [105]

    The complainant gave evidence explaining why she did not complain to either of her parents at the time. She was ashamed it had happened and did not want to upset them. She did not tell JP or anyone at the formal because she did not want to tell her date that she had seen the applicant that evening and did not want to have to explain something so terrible. It was painful and she didn’t want to think about it.

89. [106]

    This evidence does not affect the reliability or credibility of the complainant.

90. [107]

    Exhibit 10 comprised two photographs of the complainant taken on the applicant’s phone at 11:27pm and 11:40pm on 19 November 2018 at a party. The complainant gave evidence that the photos were not taken that night and that she was at the beach at that time. When it was put to her that she was incorrect, the complainant replied “I still strongly believe that I was at the beach at that time based on when I arrived home and how I arrived home.”

91. [108]

    The next day, a statement of agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW) was tendered. It recorded that “the two photographs contained in Exhibit 10 were taken by the accused’s mobile phone on 19 November 2018 at 11:27pm and 11:40pm in the vicinity of [the location of the party].”

92. [109]

    The applicant submitted that this evidence demonstrated that even when the complainant “strongly believes” something she is “plainly and demonstrably wrong”.

93. [110]

    I have concluded that Exhibits 10 and 30 might demonstrate that the complainant was mistaken about the clothing she wore on the evening of 19 November 2018 and where she was that night at particular times.

94. [111]

    At best for the applicant, exhibits 10 and 30 show that the complainant’s evidence was not in those respects accurate. The evidence does not cause me to harbour a doubt about the complainant’s credibility.

95. [112]

    The applicant submitted that the amendment of the indictment on counts 4 and 5 from “on 19 November 2018” to “on or about 19 November 2018” was to reflect the possibility that the alleged incident occurred after midnight. It was submitted that the complainant’s evidence that she was not at the relevant location by that time was contrary to an agreed fact.

96. [113]

    Again, whilst the complainant’s evidence might have been unreliable in this relatively minor detail, this issue does not cause me the slightest doubt about the complainant’s credibility. This is particularly so in circumstances where the Crown agreed to this fact only after the complainant gave her evidence.

97. [114]

    Records of Facebook messages between the complainant and applicant contemporaneous to counts 4 and 5 were tendered and marked as Exhibit 8. The complainant said that at some time she had deleted three messages from the exchange in Exhibit 8 (“why”, “that’s why I came” and “please come”). The defence tendered another record of that Facebook conversation which included the deleted messages (Exhibit G13) and a lengthier record of that same conversation (Exhibit G24).

98. [115]

    The applicant submitted that the evidence in Exhibits G13 and G24 demonstrated that the complainant wanted the applicant to attend the party, even after the alleged conduct in counts 1, 2 and 3 had occurred, and that there was continued friendly contact entirely inconsistent with the allegation relating to counts 4 and 5.

99. [116]

    Those messages show that the applicant sent a message to the complainant on the day after C’s party asking the complainant if she regretted anything. The complainant gave the following evidence:

100. [117]

     The complainant’s reluctance to confront the applicant was understandable in the context of their relationship.

101. [118]

     I do not accept that it was proved that any electronic message was deleted by the complainant in circumstances where a doubt would be raised about her credibility or reliability. As I have earlier found, the building blocks of any such submission, being what the police asked the complainant to provide and the steps the police took to obtain that material, was simply not established. Nothing about this evidence causes me to doubt the complainant’s credibility.

102. [119]

     The complainant gave evidence that she and the applicant did not at any point go into the front seat of the applicant’s car on the night of the incident. The defence case was that the pair first got into the front seat, and then moved to the back seat to engage in consensual sexual activity.

103. [120]

     It was put to the complainant in cross-examination that when they initially sat in the applicant’s car they sat in the front seat before moving to the back seat. The complainant denied this.

104. [121]

     The only evidence supporting the assertion that they were at one point in the front seat was that of an acquaintance PB, who said that he saw the applicant and complainant in the front seat of the applicant’s car when he arrived at the party.

105. [122]

     PB’s evidence about this topic was completely unreliable. As at the time of the trial, PB’s recollection was that the party was in August 2018, rather than November. He did not remember what time he arrived at the party. He parked his car behind the applicant’s car. His recollection was that he saw the complainant and the applicant sitting in the front seat but he said that he could be mistaken and could be remembering the facts incorrectly given it was a number of years ago and his memory was not perfect. In cross-examination, in answer to a series of leading questions, he said that he did not believe he was mistaken.

106. [123]

     It was a matter for the jury what to make of this evidence. At best for the applicant, it could only reflect on the complainant’s accuracy of recollection rather than her honesty. I do not think the evidence touches on the credibility of the complainant.

107. [124]

     The applicant submitted that the complaint evidence in relation to counts 4 and 5 “did not assist” the complainant. The applicant contended that:

     1. (1)

        the mother of the complainant’s friend, BM, gave evidence that the complainant said the sexual activity occurred in a bedroom;

     2. (2)

        the complainant’s mother gave evidence that the complainant told her that the applicant “pushed her down onto the ground when they were outside and that he had ended up raping her in his car”;

     3. (3)

        PB gave evidence that the complainant told him, “He tried to kiss me, and he tried to have sex with me, he moved on top of me”;

     4. (4)

        CK’s evidence was that the complainant told him the applicant was not successful; and

     5. (5)

        RZ gave evidence that the complainant told her that the applicant had kissed her and had asked her for some form of sexual encounter.

108. [125]

     I accept that the complaint evidence given in respect to counts 4 and 5 varied in the terms in which it was given. That evidence was, however, consistent with the distress suffered by a young woman who had just been sexually assaulted. PB observed the complainant at the party to be distraught and distant, avoiding eye contact and struggling to find her words. The complainant told him that the applicant threatened to commit suicide when she rejected his sexual advances.

109. [126]

     CK’s evidence was that when the complainant returned to the party after having left with the applicant, she looked upset and as if she’d been crying. She told him that the applicant had forcibly climbed on top of her and pulled his penis out in the car and she had pushed him off and said, “No.”

110. [127]

     RZ, who was at the party, also observed the complainant to be upset and crying. She said that the complainant told her that the applicant had forced himself onto her after she had said “No”, kissed her when she didn’t want it, forced himself on her without her consent and asked for some sort of sexual encounter without her consent. EF, who was also at the party, saw the complainant and the applicant leave and the complainant return alone about 15-25 minutes later. He did not recall speaking to the complainant that night but she later confided in him that there had been a sexual interaction with the applicant that she did not want. He could not recall the exact words used.

111. [128]

     The complainant’s mother gave evidence that on or about 17 December 2018, the complainant told her that the applicant had raped her in his car. She said that she was crying and pushing him away but in the end she froze. The complainant’s mother also said that the complainant told her that the applicant had pushed her onto the ground and that he had ended up raping her in the car. That was her recollection when she came to make her statement in March 2019.

112. [129]

     The complainant’s father gave evidence that the complainant told him before he flew to Adelaide in December 2018 that the applicant convinced her to go outside and then tried to force himself on her on the night of C’s party. She initially suggested that he was not successful, but later told her father that the applicant had raped her. The complainant said that she felt the applicant was blaming her for feeling sad and she felt some responsibility for how he was feeling. It happened outside the house but near the party and after it happened she went inside. She said she did not want to tell police, that it was just her word against his, that she was drunk, and people would be less likely to believe her as a result.

113. [130]

     BM gave evidence that at the end of 2018 or beginning of 2019, the complainant told her that she had been sexually assaulted by her boyfriend. They had broken up and were at a party together when he made gestures that he wanted to have sex. She said no and he prevented her from leaving the room until she had sex with him. When she returned to the party she was crying and upset and told another person at the party what had happened. BM made a note of this conversation on 10 July 2020 after she was contacted by police. The conversation she recorded was not “word for word” and included that the complainant had told her that the incident occurred in a bedroom.

114. [131]

     The trial judge gave the following direction to the jury about how to assess the evidence of complaint:

115. [132]

     The inconsistencies in the accounts given by the complainant to various people may have affected the weight accorded by the jury to this evidence in their assessment of whether they could be satisfied beyond reasonable doubt of either counts 4 or 5.

116. [133]

     Having carefully considered that evidence it does not cause me any doubt about the credibility of the complainant. It has no bearing on whether the complainant’s evidence on count 2 was reliable or credible, or whether the jury could be satisfied beyond reasonable doubt of that count.

117. [134]

     As I have already explained, the applicant asserted in a variety of ways that the complainant deliberately deleted or withheld social media communications in an attempt to portray a selective and misleading picture to the jury.

118. [135]

     I reject the applicant’s submission as baseless. Simply put, although that suggestion was made repeatedly to the complainant, there was no evidence to support it.

119. [136]

     The complainant denied these assertions and correctly pointed to the fact that there were other messages she did provide that disclosed that she did want the applicant to attend the party on 19 November 2018. In paragraph 7 of her statement dated 17 July 2020, she told police that there was a message missing from Exhibit 8 from her to the applicant concerning the party and the message was along the lines of “I want you to come”.

120. [137]

     There was no evidence about what the police told the complainant was relevant and about what they wanted. The complainant was asked by police to clarify certain matters. She did. The police did not ask her to provide any further messages between her and the applicant.

121. [138]

     The officer in charge, Detective Sergeant Barham, gave evidence and confirmed that she did not ask the complainant for any additional messages and did not seek access to her phone or social media accounts. Her evidence was that the applicant’s phone (which had been seized by police) was downloaded in its entirety. It was her understanding that the entire download of the phone was served as an item and if there were any Facebook conversations there they would have been captured in the download.

122. [139]

     It turns out that the officer who conducted a forensic examination of the applicant’s phone gave evidence that the Facebook application was installed but he did not attempt to access that application or to download chats from Facebook messenger. These actions of a junior police officer are hardly the fault of the complainant. The submission that there was any deliberate withholding of evidence must be rejected.

123. [140]

     I accept the Crown’s submission that any failure by police to properly investigate the applicant’s phone and ask the complainant to comment on specific relevant messages was not a matter that reflected adversely upon the complainant’s honesty or credibility.

Conclusion and orders

1. [141]

   Having regard to the 19 matters put forward by the applicant considered as a whole, I do not doubt the reliability of the account given by the complainant in relation to count 2. That account was given contemporaneously in the electronic communications which were in evidence. Much less do I doubt the “probity” or credibility of the complainant. None of these matters, considered alone or collectively, cast any doubt upon her truthfulness or credibility more generally.

2. [142]

   Having reviewed all of the evidence, I have concluded that this was not a case where the complainant’s evidence contained “discrepancies, or display[ed] inadequacies, of such a character as to require the jury to have entertained a doubt as to guilt” in respect of count 2: Pell at [118]. Considered both separately and together, the 19 matters said to bear upon the credibility and reliability of the complainant do not support a finding that the verdict on count 2 is unreasonable and ought to be set aside. No miscarriage of justice occurred.

3. [143]

   Count 2 was the only count on the indictment where the complainant’s evidence was supported by immediate and consistent complaint. The complaint set out in Exhibits 3 and 34 was admissible as evidence of the truth and provided powerful support for the complainant’s account.

4. [144]

   I accept that it is not enough to simply point to the existence of Exhibits 3 and 34, in a “piecemeal fashion”, to sustain the jury verdict on count 2. I have not done so. Upon a consideration of the whole of the evidence I do not harbour the slightest doubt about the complainant’s credibility or reliability. Much less do I consider that the jury must have had such a doubt in relation to count 2.

5. [145]

   To the extent that the applicant persists in the submission that if the jury, having acquitted the applicant on counts 1, 3, 4 and 5, should not have believed the complainant on count 2, I reject it. Where there are multiple counts, it is standard practice for the judge to direct the jury that they must consider each count separately and to consider each count only by reference to the evidence that applies to it. Consistently with that practice, the trial judge gave the following direction to the jury in her Honour’s summing up:

6. [146]

   Her Honour made it clear in that direction that it was necessary to consider the complainant’s evidence on the other counts in assessing her credibility in respect to count 2: see Markuleski at [186]-[188]. There is no basis for this Court to find that the jury did not follow her Honour’s directions.

7. [147]

   The jury’s verdict in respect to count 2 can readily be reconciled with the not guilty verdicts given in respect to counts 1, 3, 4 and 5 and is consistent with the jury approaching the question of whether the Crown had proved its case beyond reasonable doubt with caution and in accordance with the directions it was given. The jury’s verdict on count 2 does not reflect a “piecemeal approach”. The jury’s differential verdicts were the product of its conscientious attention to the trial judge’s directions and to the evidence applicable to each count. Having regard to the immediate and consistent complaint evidence, there was a logical and reasonable basis for sustaining the differentiation that the jury drew in relation to count 2.

8. [148]

   It was open to the jury to have found the complainant to be an honest, accurate and reliable witness to the point where they could be satisfied beyond reasonable doubt of the applicant’s guilt in respect to count 2. It was also open to the jury to find that any benefit of a reasonable doubt that they may have afforded the applicant in respect to the other counts on the indictment did not affect their finding in respect to count 2. It was significant that the trial judge also provided the jury with extensive directions and assistance in how to go about assessing the reliability of witnesses.

9. [149]

   There is no rule that in cases where several offences depend upon the evidence of a single complainant, acquittal on one or more 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 they have returned guilty verdicts: MFA at [35] and [89].

10. [150]

    The complainant gave evidence at trial over a period of four days. She was cross-examined over three days. I have read that transcript carefully. She gave careful and considered responses. She did not embellish her evidence and made appropriate concessions. She was frank in her evidence about her continued contact with the applicant. The jury were well placed and able to evaluate any conflicts and imperfections in the complainant’s testimony and perform their proper function.

11. [151]

    The credibility matters on which the applicant relied either do not arise (the so-called destruction of social media evidence) or were factual matters that were matters for the jury’s determination. The jury had the benefit of seeing and hearing the complainant give evidence. The jury plainly listened carefully and followed the directions they were given. No miscarriage of justice occurred.

12. [152]

    For the foregoing reasons I propose the following orders:

    1. (1)

       Leave to appeal granted;

    2. (2)

       Appeal dismissed.

13. [153]

    DAVIES J: My own examination of the evidence satisfies me that it was open to the jury to convict the applicant in respect of count 2, notwithstanding the acquittals on counts 1, 3, 4 and 5. For the reasons given by Payne JA, I do not have a doubt about the applicant's guilt in relation to count 2.

14. [154]

    IERACE J: I agree with Payne JA.