Holt v R [2021] NSWCCA 140 (2 July 2021)

Last Updated: 2 July 2021

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Holt v R
Medium Neutral Citation:	[2021] NSWCCA 140
Hearing Date(s):	30 April 2021
Date of Orders:	2 July 2021
Decision Date:	2 July 2021
Before:	Hoeben CJ at CL at [1]; Bellew J at [2]; N Adams J at [3].
Decision:	(1) Grant leave to appeal on ground 1. (2) Refuse leave to appeal on grounds 2 and 3 pursuant to r 4, Criminal Appeal Rules. (3) Appeal is dismissed.
Catchwords:	CRIME — Appeals — Appeal against conviction — whether verdicts inconsistent or otherwise unreasonable – offences of sexual intercourse without consent, assault with act of indecency and recording intimate image without consent – where applicant was convicted of three counts and acquitted of four counts – where applicant admitted acts for counts upon which he was convicted but disputed consent – where counts upon which applicant was acquitted were disputed or involved possible fragmentation of memory due to alcohol consumption and sleep – held, verdicts not inconsistent or otherwise unreasonable CRIME — Appeals — Appeal against conviction — where applicant gave different versions to police and others – whether trial judge erred in failing to give Zoneff direction in relation to the applicant’s “changing story” – where applicant told police that he deleted an intimate photograph of the complainant because he “didn’t feel right” about “how it ended” – whether trial judge erred in failing to give Edwards direction in relation to deletion of photograph – where Crown did not rely upon lies or post-offence conduct as consciousness of guilt – held, no error
Legislation Cited:	Crimes Act 1900 (NSW), ss 61I, 61L, 91P(1) Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1) Criminal Appeal Rules (NSW), r 4
Cases Cited:	AH v R [2019] NSWCCA 152 ARS v R [2011] NSWCCA 266 Christian v R [2012] NSWCCA 34 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 DN v R [2016] NSWCCA 252 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Kim v R [2020] NSWCCA 288 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mark McKey v Regina [2012] NSWCCA 1; (2012) 219 A Crim R 227 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 Tekely v R; Nagle v R [2007] NSWCCA 75 Wheeler v R [2019] NSWCCA 255 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
Category:	Principal judgment
Parties:	Thomlen Holt (Applicant) Regina (Respondent)
Representation:	Counsel: Mr K Averre (Applicant) Ms M Kumar (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2018/00185831
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	District Court
Jurisdiction:	Criminal
Date of Decision:	29 August 2019
Before:	King SC DCJ
File Number(s):	2018/00185831

JUDGMENT

1. HOEBEN CJ AT CL: I agree with N Adams J and the orders which she proposes.
2. BELLEW J: I have had the advantage of reading, in draft, the judgment of N Adams J. Having conducted my own independent assessment of the evidence, I agree with the orders that her Honour proposes in respect of ground 1. I also agree with her Honour’s proposed orders in respect of grounds 2 and 3.
3. N ADAMS J: The applicant, Thomlen Holt, appeals under s 5 of the Criminal Appeal Act 1912 (NSW) against his convictions arising out of the sexual assault of his friend early one morning after she had been drinking. In order to protect her anonymity, the complainant was referred to as LP in the Appeal Book and submissions. In the interests of readability, I propose to refer to her as either “Holly” (not her real name) or “the complainant” in this judgment. In relation to other witnesses I propose to refer to them as “the applicant”, “the mother”, “the father”, etc where possible.
4. On 21 August 2019, the applicant pleaded not guilty to the following charges:

Count 1: Sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) (maximum penalty of 14 years imprisonment, SNPP 7 years) (digital penetration of vagina);

Count 2: Assault with act of indecency contrary to s 61L of the Crimes Act (maximum penalty of 5 years imprisonment) (placing her hand on his penis);

Count 3: Sexual intercourse without consent contrary to s 61I of the Crimes Act (digital penetration of anus);

Count 4: Sexual intercourse without consent contrary to s 61I of the Crimes Act (cunnilingus);

Count 5: Intentionally record intimate image without consent contrary to s 91P(1) of the Crimes Act (maximum penalty 3 years imprisonment and/or 100 penalty units) (taking photo of vagina);

Count 6: Sexual intercourse without consent contrary to s 61I of the Crimes Act (digital penetration of vagina);

Count 7: Sexual intercourse without consent contrary to s 61I of the Crimes Act (penile-vaginal intercourse).

5. A trial proceeded before King SC DCJ and a jury of twelve. On 29 August 2019, the applicant was found guilty of counts 4, 5 and 6, and not guilty of counts 1, 2, 3 and 7.
6. On 1 November 2019, the applicant was sentenced to an aggregate term of 6 years imprisonment with a non-parole period of 3 years commencing on 29 August 2019. There is no application for leave to appeal against that aggregate sentence.
7. The applicant seeks leave to appeal against his convictions on the following three grounds:

“Ground One: The jury’s verdicts on counts 4 and 6 are unreasonable and cannot be supported having regard to all the evidence.
Ground Two: The trial judge erred in not directing the jury on the limited use of the changing story of the appellant.
Ground Three: The trial judge erred in not directing the jury as to the appellant’s alleged consciousness of guilt.”

8. Ground 1 requires leave under s 5(1)(b) of the Criminal Appeal Act. Grounds 2 and 3 require leave under r 4 of the Criminal Appeal Rules (NSW).

The evidence

9. The complainant was part of a group of friends who all attended high school together. She was 19 years old as at 16 December 2017 and 21 years old at the time she gave evidence at trial. The applicant was part of this group of friends, as was Jordan Cheshire. Mr Cheshire had joined the Navy and was returning home to his regional town for Christmas, on 15 December 2017. A small party was organised at the home of another friend, Mr Hunter Martin.
10. The complainant had been friends with the applicant for some time. She was aware that he had been attracted to her, but she had indicated to him that she was not interested in him in that way. An earlier text message exchange between them was before the jury and became exhibit 6. It revealed the following text from the applicant to the complainant seven months earlier, on 27 May 2017:

“Applicant: I just want you to know that you’re one of the best things in my life at the moment and moving down here 7 years ago and meeting you was one of the best things that could’ve ever happened to me. Keep sticking up for yourself through anything because the new you is definitely better than the old you.
I’m sorry for everything that I’ve said because I know how much it hurt you and I know that saying sorry doesn’t mean much but I guess I’m just trying to be a better person and me saying that shit was one of the worst things I could’ve ever done.
Thank you for being you [Holly]”

11. Two days later, on 29 May 2017, there was this text message exchange:

“Applicant: Can the cuddles we had the other day not be a one time thing? Like I know the only reason you did cuddle was because of Hamish being
there but idk I guess I just enjoyed actually having someone next to me for the night
Complainant: Tom it can’t
Applicant: Why not
Please tell me why
Complainant: Because Lachy and I becoming closer and he will get cranky
I’m done with Andrew
Applicant: Okay
Why Lachy? I think he’s an awesome guy but like why him?
Lachy just said he doesn’t care whether we cuddle or not so idk if that changes anything but yea, lol
Sorry I’m just being an idiot now
Complainant: Lachy???
Fick [sic] that was Nicola
Not true Andrew and I aren’t done
Applicant: Well I guess it still stands though. Is the answer still no to cuddles? Or would Andrew get mad
Complainant: Answer is no andrew would get mad
Applicant: Awww fuck (sad face emoji)
Oh well
Complainant: I don’t want to anyway because I wouldn’t like Andrew doing that
Applicant: Nah fair enough, I just didn’t think it’d be that much of a big deal since Andrew, you and I all know nothing would actually happen or I wouldn’t try anything
Complainant: I don’t want to tom
Applicant: I know, I was just explaining myself (two OK hand emojis)”

12. The “Andrew” referred to in these text messages is Andrew Yates. As at 16 December 2017, he had recently ended what the complainant described as a “complicated” relationship between the two of them which had lasted some years. As text messages between them that night and the following day tendered at trial made clear, the complainant still had a strong connection with Mr Yates.
13. Before leaving to attend this small party at Mr Martin’s home on 15 December 2017, the complainant consumed her antidepressant medication, citalopram. In her evidence she explained that “when I take it before drinking alcohol the effects of alcohol come on quicker” and “[i]t makes me feel like I get drunk a lot easier with a lot less drinks”.
14. The complainant’s mother drove her to the party. She arrived there shortly after 10pm. Present at that time were Mr Cheshire, Mr Cheshire’s brother, Mr Martin and the applicant. The complainant brought four cans of Canadian Club Dry with her. The friends all started playing drinking games for about half an hour. The complainant estimated that she drank about one and a half standard drinks during this period.
15. The complainant kept drinking and smoking after the drinking games finished. She briefly left the party with some of the other guests to retrieve a pushbike and arrived back at about 11:45pm. She drank her remaining cans of Canadian Club Dry upon her return. The complainant gave evidence that she remembered another guest arriving and them all dancing in the kitchen and the next thing she remembered was waking up on the couch. She could not remember how she ended up on the couch, going to sleep or what time she fell asleep. She had planned to sleep in the same bedroom as her friend Mr Cheshire rather than on the couch.

Counts 1 and 2 (verdicts of not guilty)

16. The complainant recalled waking up and finding the applicant asleep on the couch behind her. She still had her shoes on, the applicant was on her left side and someone had put a blanket over them. She kicked off her shoes onto the ground and went back to sleep. She did not think anything of the applicant being next to her on the couch.
17. The next thing the complainant remembered was waking up to find that the applicant had his “hands down [her] pants”. Her evidence was that her jeans were down to about mid-thigh and the applicant was putting his fingers in and out of her vagina (count 1). Her left hand was on the applicant’s penis and the applicant was using his hand to make her hand rub his penis inside his clothing (count 2). His penis was erect. Both of them were lying on their backs. The complainant rolled away. The applicant told her that he loved her. The complainant did not say anything back. She described feeling scared at that time.

Count 3 (verdict of not guilty)

18. The complainant next gave evidence that she rolled onto her side whilst the applicant still had his finger in her vagina and he then put another finger in her anus which “hurt a bit”. This lasted a couple of minutes. The complainant did not say or do anything in response nor did the applicant say anything at that point.

Count 4 (verdict of guilty)

19. The complainant gave evidence that the applicant rolled her onto her back again by grabbing her left shoulder. He then climbed over the top of her and pulled her underpants and jeans down to about mid-shin and licked her vagina. His legs were outside of her legs while her legs were straight. He then moved her legs “apart but not like as far as they could with my pants still on” and kept performing oral sex on her for a couple of minutes.

Count 5 (verdict of guilty)

20. The applicant then sat up and touched his chin. She explained this by a gesture in her evidence. He was looking for something on the ground. He then picked up his mobile telephone from the ground and put his left leg in between her legs. He held her legs apart and took two pictures of her vagina with his phone camera. She saw the flash but did not hear any noise. She explained that when he took the second photo he used his fingers to open up her vagina while taking the photo.

Count 6 (verdict of guilty)

21. After the applicant put his phone down, he pulled the complainant’s pants up to about her mid-thighs. He lay on her left side and started inserting his finger into her vagina. She was lying on her back. He did this for a couple of minutes. She did not say anything nor did she react in any way to what he was doing. She described feeling scared and confused. The applicant said, “[c]ome for me baby”.

Count 7 (verdict of not guilty)

22. The complainant rolled back onto her right side. When she did this, the applicant put his right arm underneath her neck and said to her “[i]f you want it, grab my arm”. She did not respond. The applicant then grabbed her arm and made her hand squeeze his arm. She said and did nothing whilst he did this. He then let her arm drop back onto the couch and inserted his penis into her vagina. The complainant’s pants were around mid-thigh and the applicant’s pants were not fully off either. This continued for about five minutes. The applicant used his left hand to spread her buttocks apart and inserted his penis and withdrew it completely and then inserted his penis again. He did it slowly. She could tell it was a penis because it felt different when he had used his fingers and she could feel that it was his penis. Her evidence was that he then “just stopped”, pulled his pants up and pulled her pants back up, put a blanket over her and left the room.
23. The complainant gave evidence that at no point did she give the applicant any indication that she was consenting to what he was doing nor did she give any indication that she was awake. Her evidence was that she did not say or do anything the entire time. Her explanation for this was that she was scared, and it was not something that she had expected.

Complaint evidence

24. The group of friends would text message each other frequently. Copies of some of these text message exchanges were tendered at trial. Some of the complaint evidence was over text.
25. The first complaint by the complainant was to Andrew Yates by text message early the following morning, then to Nicola Gledhill that afternoon and evening, then to her mother in person that evening, to Hunter Martin and Jordan Cheshire by text over the weekend, to Senior Constable Farmilo the following day and to Dr Epa at the hospital.

Complaint to Andrew Yates

26. The first person the complainant contacted after the assault was Andrew Yates. Although their relationship had recently ended, they sent text messages to each other every night. The text messages between the complainant and Mr Yates became exhibit 2 at trial. That exhibit showed the following exchanges between the complainant and Mr Yates before the alleged assault:

“Andrew: Message me when you go to bed please (smiley face emoji) (at 10:46pm)
Holly: I love you and I will (at 11:31pm)
And you’re fast asleep but I’ll still let you know when I go to bed (at 11:38pm)
(love heart emoji) I seriously love you p (at 12:00am)
I doubt inlll br able to message you I’m ticket bro (at 12:58am)
But I’m sleeping with jordy (at 12:58am)
Going in to bed (at 1:17am)
I’m. Fuckimed o (at 1:17am)”

27. The complainant gave evidence that she lay awake after the assault and remained lying on the couch until shortly after 6am when she sent a text message to Andrew Yates in the following terms:

“Andrew: Bro, I swear to god if that was hunter
Sound like a good night (thumbs up emoji)
Holly: I’m still fucked.
But I fucking need you Andrew please don’t be angry right now
Andrew: What did you drink?
Holly: What do you mean
If that was hunter
Lots of shit
I really don’t know
Andrew: Don’t worry, just sounded like he messaged me off your phone
Hmm that’s not good
Holly: It wasn’t me (two crying emojis)
Andrew
Can you make it to Holbrook
Andrew: Knew it
Why did he message me that and why did you let hl’m
Why?
Holly: It wasnt hunter Andrew (pained face emoji)
Andrew: Ok
He didn’t touch you at all?
Why do you want me to go to Holbrook rn
Why?
?
Holly: I need you please
Come lay in my bed all day please Andrew
No hunter didn’t touch me
Andrew: Why?
What’s wrong
Promise
Holly: I promise hunter did not touch me please come Andrew
Andrew: You are still fucked [Holly]
Drunk fucked I mean
Holly: Please Andrew I’m seriously
Serious
And just watch movies
Andrew: You are drunk still. It’s 6.30
Holly: Andrew please
Andrew: Maybe once I sleep more and pack my bags and do my washing
Holly: Ok
But please come I really fucking need you
Andrew: Can we talk later I’m going try get more sleep
Holly: OK (pained face emoji)”

28. The above exchange ended at 6.30am. Then at 8.31am Andrew sent a text simply stating, “I’m awake”.
29. At 10.49am, the following exchange took place:

“Andrew: Are you alive? Haha
Holly: No one at all
Andrew
Um
Andrew: Where is everyone?
Um what?
Holly: I pass out but I woke up and I remember it and you’re gonna be angry
But I didn’t know what to do I just laid there and cried but it when [sic] on for hours
I’m sorry
I shouldn’t have drank so much
And I never
Andrew: What happened?
Thought that
I don’t known
Don’t tell anyone please
Andrew
Please
Andrew: What happened
You remember what?
Holly: Please say you won’t tell anyone
Andrew: Won’t tell anyone what? What happened?
What do you remember?
Holly: Just say you won’t tell anyone
Andrew: No I wont
Tell me now. Everything
Holly: Tom
He I’m
Um
Andrew: What
Keep going
I deserve to know everything
Holly: Tom raped me
Andrew: He raped you?
He was fucken [sic] you when you were passed out?
Are you sure you weren’t drunk and said something by accident?
What the fuck
You just laid there? Why didn’t you hit him and say no
Holly: Yes
Andrew I’m sure
An he took photos of me
He was already
Argh I don’t know Andrew
Andrew: Naked?
You don’t know? What the fuck [Holly], if he was taping you why didn’t you do anything you let it happen
Holly: It was photos of my you know
Andrew: Your fucken [sic] kidding me aren’t you?
Holly: No please don’t tell anyone
Andrew: I’m getting my stuff, coming to Holbrook and bashing his fucken head in that’s what I’m doing
Holly: And he thinks I was passed out the whole time and he kept saying things and
You can’t do that
Andrew: Why can’t I?
He fucken raped you [Holly]
Holly: Because Andrew what if he hits you
Andrew: I’m telling police
Holly: Andrew
Andrew: I don’t give a shit if he does [Holly] he fucken raped you ldc who he is
Holly: My mum will find out then
Andrew: You need to tell your mum
Holly: I can’t
Andrew: you can’t fucken let that happen
Holly: I don’t know what to do
Andrew: Tell your fucken mother or I will
I can’t believe this
I actually can’t
Holly: I can’t say that to her
Just don’t hit tom cause I don’t want him to hit you
Andrew: So when I got a text it was him last night wasn’t it
Holly: Yes
Andrew: He won’t’ hit me [Holly]
Holly: I’m sorry
Andrew: Ehy [sic] the fuck didn’t you text me or ring me that would have made him stop
Holly: I remember him saying you don’t need that and taking my phone off me
Andrew: But you text me after
Holly: And I just want you and I needed someone
And I didnt know what to do
This morning yes
Andrew: You let it happen
I’m coming to Holbrook just let me get my shit and pack up my car
Fill up*
Holly: You’re angry at me
I’m sorry Andrew
I didn’t know what to do he was already doing shit
Andrew: I’m angry at this whole situation bc I said something would happen you didn’t believe me and then you got so blindyou passed out
Yes I’m more angry at Tom obviously bc that’s fucked and I do hope you are okay but gosh you just laid there? Like what makes me believe that you let I [sic] happen.
I’m not saying you are lying but you can’t be lying at all because this is going to the police or at least your mum [Holly].
Holly: I know Andrew I‘m sorry
I didn’t know what to do Andrew
I’m not lying but you think I am
Andrew: I don’t think you are lying
I’m just saying every detail must be true
Holly: Every detail is correct and I remember more
Andrew: And what did you do? Just grab his arm?
Holly: I didn’t grab his arm
He put my hand on his arm
I know it’s my fault
Andrew: And you left it there?
Holly: No I took it off straight away
But he has pictures of me
That he’ll
Andrew: Have a shower
Holly: In hunters ?
Andrew: At home
When will hunter get back
Holly: But when you get there dad will know somethings up
I don’t know
Andrew: Ok
Can I please tell Paige? I just want to get her opinion on what I should do
Holly: Yeah it’s okay (sad emoji) tell her not to tell anyone please
Andrew: Yeah I will for sure
Holly: Thanks for asking Andrew
Andrew: I just got fuel and on the way now ok?
Holly: Ok (sad emoji)
Drive safe please
Andrew: I have to I have 1 demerit point
Holly: Good
I’ll go then (heart emoji)
Andrew: Just ring me if you need me alright”

30. The complainant gave evidence that she did not want Mr Yates to tell anyone as she did not want anyone to know. She was concerned about her mother finding out because she would be upset. Her mother did not want her to go to the party that night.
31. Whilst the complainant was lying on Mr Martin’s bed, the applicant entered the room and sat on the end of the bed. He said to her, “[a]re you okay? You’ve been passed out for like about ten hours”. She did not say anything, rolled over and closed her eyes. The applicant then said, “[r]ighto, well, I’m gonna head off now”.
32. The complainant gave evidence that Mr Yates picked her up from Mr Martin’s home at about 1pm and they both drove to her home. Mr Yates told her that he wanted to “bash” the applicant. The complainant was crying. When she got home she had a shower and asked Mr Yates if they could go to the weir for a swim. Her father and younger sister were home. She made no complaint to either of them.
33. The complainant went to the weir with Mr Yates but did not make any specific complaint to him. He asked her why she did not do anything to stop the applicant and she replied that she had been scared. He told her she should tell her mother.

Complaint to her mother

34. The complainant’s mother gave evidence that she thought it odd when the complainant returned with Mr Yates as they were no longer seeing each other.
35. Later that night the complainant complained to her mother. The complainant’s evidence was that she was crying. Her mother saw her, and she was upset. She told her mother, “something happened last night and I didn’t mean for it to happen, but it just wouldn’t stop and I didn’t – I didn’t want it to happen and he kept going”. She told her mother that it was “Tom”. Her mother responded that she would take her to hospital. When her father came into the room her mother said to her father “I think Tom assaulted her”.
36. The complainant’s mother’s evidence was in similar terms. She described how the complainant was crying and she could see that something was wrong. Her evidence was that the complainant told her that “Tom Holt had had sex with her the night before and she didn’t want to” and that “I would never have sex with him but I couldn’t stop him and I don’t know why.” She described him putting his fingers inside her “front and back” and then performing oral sex and also that he told her to grab his arm. She also told her mother that he had sex with her and had taken photos of her and “held her open” while he took the photos.
37. The complainant’s mother took her to hospital. There was some delay caused by the fact that the hospital in their regional town was unable to assist so they both travelled to Albury Base Hospital and arrived there late in the evening.

Complaint to Nicola Gledhill

38. During the afternoon and evening, the complainant sent text messages to Nicola Gledhill, who was one of her best friends. That text message exchange became exhibit 3. At 10:39am, this exchange took place:

“Nicola: Why did you go to the weir
Holly: Some shit happened so he came to Holbrook and took me away
Nicola: Like what
Holly: You don’t need to be bothered with it
Nicola: Really?
Right well I’m here trying to be there for you as I have for a long time, and you don’t tell me Andrew doesn’t care [Holly], let me know when you finally figure out
Holly: I was raped.
Nicola: By who and when
Holly: I’m sorry
Last night
Tom
I gtg [got to go] I can’t talk about this right now”

39. And later at 7:59pm:

“Nicola: Glad your home safe
Holly: Sure
Did you tell someone?
Nicola: I asked Tom
Holly: Are you fucking kidding me nicola
I was
Fuck me
Abby was right
I thought you were a friend”

40. The complainant was angry Ms Gledhill had told the applicant. Ms Gledhill gave evidence in similar terms to the complainant. She described the relationship the complainant had with Mr Yates as being “not healthy”.
41. There was a further exchange between the complainant and Ms Gledhill early on the Sunday evening following the party which became exhibit H1 which was, relevantly, in these terms:

“Nicola: Dad knows why. I don’t lie.
Please leave me alone. I don’t want anything to do with this.
Holly: Um yes you do
Well you made yourself something to do with this nicola
And I ruined his life (laughing with tears streaming emoji)”

Complaint to Senior Constable Farmilo

42. The complainant gave a short version of events to Senior Constable Susan Farmilo on 16 December 2017 (she received a radio message at about 9pm). That version was read onto the record at trial as follows:

“Then I walked back to the party after Brett got his bike. I finished the last of my drinks and had another shot with Jordan. This was about 12ish.
I remember sending a message to someone to let them know I was still there. Then I don't remember anything else until I woke up - sorry, don't remember anything until I woke up. I think I woke up before anything happened. Tom was there but I've stayed with him before. We were good friends and I've stayed at his house. He had a pretty big crush on me when we were younger.
I still had my shoes on so I kicked them off and that's when I realised we were laying on the couch, but I'm not sure how we got there. Then I fell back asleep and woke up again and that's when I realised that's when I had my hand on him. Then I asked a question 'Sorry, but can you be more specific when you say you had your hand on him?' [Holly] answered 'I had my hand on his penis and he was fingering me at that time. My pants were down. Not all the way off, but down. Do I say what he said as well?'
I said, ‘If you remember conversation that would be good.' [Holly] answered, 'So then he went down on me.’ I said ‘Did you say anything?’ [Holly] answered, ‘I didn't say anything the whole time. He thinks I was passed out, but he was saying things. He said things like 'I love you' and that if I wanted it to squeeze his arm. He grabbed my hand and made my hand squeeze his arm, then he got his phone off the floor beside us and took two pictures of me. My face wasn't in it. He held my vagina and he took two pictures with the flash on.
Then he came back up and laid behind me. He rolled me onto my side and then he started having sex with me. Once he was done, he got up off the couch, pulled my pants up and covered me with the blanket. He must have slept in another room because he was there when I woke up later that morning. Hunter came into the lounge room and asked if wanted to go and lay on his bed. He and Jordan were going into Albury. So Tom was still there, just me and Tom.
He came later in Hunter's room where I went. He came to the end of the bed and said, 'Are you okay? Because you have been passed out for about ten hours.' Then I didn't say anything and he left.”

43. The complainant was cross-examined about this and agreed that she did not tell the officer that the applicant had manipulated her hand to rub his penis. She could not recall exactly what she had told her.

Complaint at the hospital

44. Dr Widana Epa gave evidence of what the complainant told her at Albury Base Hospital at 9:30am on 17 December 2017. This account was generally consistent with the evidence that the complainant gave at trial. The complainant told Dr Epa that she had four drinks of Canadian Dry and three shots of Fireball between 10:30pm and midnight and remembers passing out. She awoke to find the applicant lying behind her. She kicked off her shoes and went back to sleep. When she woke up her hand was on the applicant’s penis and he was “fingering” her vagina as well as her anus. He also commenced to put his tongue and finger into her vagina and anus and his penis into her vagina, but he did not ejaculate. He then left the couch.

Complaint to Hunter Martin

45. The complainant also exchanged text messages with Hunter Martin over the weekend. Those text messages were tendered and became exhibit 4 at trial.

“Hunter: Your side of the story.
Now. go.
Holly: What?
What did he say (pained face emoji)
Hunter: You’re accusing him of rape
State the proof you’ve got and what you think happened or I’m calling bullshit
Holly: Call bullshit then hunter I don’t have to tell you anything
Check his phone he took pictures of me
He thought I was passed out hunter
Hunter: And what happened
Holly: I woke up and he was fingering
me and he was saying shit and he went down on me saying he loved me shit like that he took pictures of my you know and he turned me over and yeah
Hunter: Ok
Why didn’t you stop him if it did happen that is
Holly: I freaked out I didn’t know what to do”

Cross-examination of the complainant

46. The complainant denied sending some of the text messages to Mr Yates that are contained in exhibit 2. She accepted that to unlock her iPhone required a fingerprint. She suggested that someone else must have used her fingerprint. She agreed that she had no recollection and ultimately agreed that it was possible she had sent them but simply had no recollection of doing so. The complainant agreed that she never told the applicant to stop or asked him, “[w]hat are you doing?”. She agreed that she did not fend off the applicant or get off the couch or move away from him. She agreed that there had been another bedroom in the house that she could have slept in that she did not know whether there was a bed in that room.
47. The complainant stated that it was her belief that the applicant thought she was asleep the entire time. She confirmed that he said to her “I love you”, “come for me baby” and “if you want it grab my arm”.
48. As for the allegation of digital penetration of her anus, she gave evidence that she started to cry but did not make any noise or say anything. There were tears coming out of her eyes, but she did not move her body or make any sound. It was painful.
49. She described seeing the applicant’s face after he finished performing oral sex on her and that he brushed his face with his hand. She said she had her eyes open slightly at this time and she saw him take two photographs of her, seconds apart. She disagreed that he only took one photograph.
50. The complainant agreed that she told police in a statement that she felt she had lost some time that night. There was a long period of which she had no memory which started about 15 minutes after she came back from the walk and went until she woke up on the lounge. She felt that it happened at 1am but accepted that it could have occurred between 4am and 5am as it was still dark outside.
51. The complainant was cross-examined about her relationship with Mr Yates. She agreed that she had been very upset about losing him the week before the incident and had voluntarily admitted herself into “Nolan House”. She was concerned about whether she might self-harm and was feeling very depressed. She accepted that she had a level of insecurity due to the potential separation from Mr Yates. She agreed that when she felt like that, she would act impulsively by self-harming but denied that she would otherwise engage in risk-taking behaviour when she was in that state.
52. As for the text messages with Mr Yates (exhibit 2), she agreed that she initially made no disclosure to him.
53. The complainant was cross-examined about her exchanges with Mr Yates in which she said that she had an infection “down there” (meaning in her vagina). She did not notice this until the following Monday. She agreed that in the text messages to Mr Yates she said, “Tom, he went down” and expressed concern that that may have caused the infection. It was put to her that if there had actually been penile-vaginal intercourse between them that that would have caused a greater concern as to the risk of infection than oral sex. She responded, “I have [sic] no idea how UTIs worked back then”.
54. She was cross-examined about exhibit 6, the text exchanges between her and the applicant prior to the night in question and explained that her mental health problems were ongoing at that time.
55. She was cross examined about exhibit H1 and why she put an emoji laughing with tears streaming after the words “and I ruined his life”. She explained that this was because she found it funny that Nicola thought that she had ruined the applicant’s life when he had in fact ruined hers as it was not her choice.
56. The applicant’s case was put to her and she denied most of it. In particular, she denied the following propositions which were put to her:

(1) That she had asked whether it was “Tom” when they were first lying on the couch;

(2) That she had asked him whether he would mind if she undid her pants to make herself feel a bit more comfortable;

(3) That she had initiated the sexual contact but could not remember it;

(4) That after she initiated sexual conduct the applicant changed his position and moved his hand to her breast, and she responded by reaching over and touching his penis;

(5) That she had acted impulsively and initiated the sexual conduct and was a willing participant;

(6) That she was worried that Mr Yates would find out that she had “hooked up” with the applicant;

(7) That she had manipulated sympathy with Mr Yates without any care or thought for the consequences of others including the applicant;

(8) That the reason she told Mr Yates that the applicant had raped her was so that he would not hear on the rumour mill that she had “hooked up” with him;

(9) That she told Mr Yates the sexual conduct was non-consensual so that Mr Yates would feel sympathetic towards or not hold it against her;

(10) That she had moved her backside into the applicant’s crotch, that this woke him, that she lifted up his shirt, that she moved her hand onto his penis and continued to rub her backside onto his crotch region;

(11) That when he moved his hand underneath her pants, she adjusted her body to lay on her back;

(12) That he only took one photo of her vagina;

(13) That she complied when he motioned for her to move from her back to her side;

(14) That when he started penetrating her with his fingers, she reacted by touching his penis again. That after digitally penetrating her, he leaned over her body to kiss her and then stopped any sexual contact and got off the lounge.

Evidence of intoxication

57. The complainant gave evidence that it was not until she returned to the house after the late night walk that she started to feel affected by alcohol. She described feeling sick as if she was going to vomit and unsteady on her feet. She did not feel intoxicated when she was lying down but her body felt “heavy and exhausted”.
58. A statement of Michael Simpson was read. He was at the party. He stated that he left the party between about 12:30am and 1am. Just before he left, the complainant told him she was tired and that she was going to have a shower and go to bed. He described everyone as being “quite drunk” and that the complainant was taking longer to say sentences. He noticed that her balance was “off centre like she needed to sit down or lean against something else”. He had not paid any attention to how much alcohol anyone was drinking and did not notice anything out of the ordinary with the applicant.
59. A statement of Brett McCarthy was also read. He described the complainant as appearing to be “pretty happy” at the party and that she had had a few drinks before he got there. His evidence was that she did not seem to be “too drunk”. He described it this way: “on a scale of 1 to 10 one being sober and ten being totally drunk I would put her at six”. He described her eyes as being a bit red and said that she was speaking well, walking “straight”, and was “really relaxed”.
60. The evidence of Jordan Cheshire was that he had observed the complainant to have had “quite a bit to drink” and that she had had “a fair few shots” and some Canadian Clubs. She was intoxicated to the point of vomiting. He saw her vomit but could not recall what time of night that was. He recalls when she went to sleep. Someone fetched her a blanket and helped her to get to bed on the couch. He and the complainant had previously agreed that she was to sleep in his bed with him. After she fell asleep on the couch, he continued to drink and socialise.
61. Dr John Farrar, forensic pharmacologist, gave evidence about the effects of intoxication on memory. He based his expert evidence on the assumption that the complainant had consumed four cans of Canadian Club and three shots of Fireball whisky. He noted that the shots had not been measured and it was hard to predict exactly how much was in each of the shots. He also assumed that she had taken 30mg of citalopram. He noted that that medication can cause some degree of sedation and that that impact is additive when combined with alcohol.
62. Dr Farrar had regard to the toxicology results from the blood sample taken at the hospital. He noted that no alcohol was detected in the complainant’s blood or urine samples, but this was unsurprising given that it had been 30 hours since her last drink. He was unable to accurately estimate her blood alcohol concentration at the time of the alleged offences particularly since she was seen to vomit.
63. Significantly, Dr Farrar gave evidence about alcohol-induced blackouts and alcohol-induced fragmentation of memory. He explained that if enough alcohol is consumed, people are unable to recall specific events that occurred whilst they were intoxicated. Dr Farrar gave the following evidence about this:

“Q. Given that her memory picks back up at a point, or reportedly picks back up at a point, do you consider that unusual for someone to suffer a period of loss of memory due to alcohol and then waking up and recalling certain events?
A. No I don’t. It’s not unusual. There are two reasons for that. One is that, and I have to say I’m not - there’s a time difference between the time of onset of this loss of inability to recall memory, and the time that she woke up, and I have to say I’m a bit unclear as to what that time difference is. But over that time [the complainant] will have eliminated alcohol to an extent. In other words her blood alcohol concentration will be less than it was when she entered into this phase of like memory loss. That’s the first point. The second point is that, and I’m just speaking generally again, I’m not speaking about this case, it is more likely for a person to recall events that are related to a traumatic experience than events that are just part of socialising when they are impaired by alcohol.
Q. So a person’s level of recall of events, even if they’re affected by alcohol, might depend on the significance of those events, is that what you’re saying?
A. It, it, it does to an extent. I should say for the purposes of full disclosure as well, that it may well be that - perhaps I should have said this earlier, there are lesser forms of this alcohol induced blackout that’s called alcohol induced fragmentation of memory.
Q. What’s that?
A. Whereby a person later on when they’re sober recalls fragments of what occurred, rather than, rather than having, not being able to recall anything, they - it’s a lesser form and they, they’re able to recall fragments of what occurred to them, and those - that - at that level memory can be partly restored by cueing, that’s C-U-E-I-N-G, by being prompted by someone, by being reminded, or it may actually return spontaneously. But it never fully returns.
Q. Again even with fragmentation does the ability to recall details and recall them fully, could that depend on the significance of the event that they’re recalling?
A. To an extent yes it will.
Q. May it vary from individual to individual?
A. Yes. With these sorts of considerations inter-individual variation is a big factor, always.”

64. Dr Farrar was asked the following question about alcohol-induced fragmentation of memory in cross-examination:

“Q. Is it possible that as alcohol metabolises in the body of a person, they actually go from a position of alcohol induced blackout where they have completely absent recollection of events that have occurred, to a position where they have a fragmented memory of events that occurred?
A. Entirely possible, if not probable.”

65. Dr Farrar’s evidence was that if the alleged events happened at 1am, as the complainant stated, there could well be alcohol-induced fragmentation, but this would be less likely if the events occurred at 4am (when the applicant alleged the contact took place).

Accounts given by the applicant

66. Nicola Gledhill’s evidence was that she tried to speak to the applicant about the complaint made by the complainant by text (see above at [39]). She described him as being flustered and said, “[n]o, nothing happened, we - I asked her to cuddle”, that they slept on the couch and later that they had “cuddled on the couch”.
67. She had another text exchange with the applicant the following day in which the applicant said he was going to tell her what he had told “Hunter and Jordan” which was as follows:

“I got home at 4am this morning from Caltex. [Holly] has said earlier in the night that it was okay if I cuddled with her on the lounge so I hopped on the lounge with her. After about 30 minutes she reached around to grabbed my shirt and started pulling it up. I thought she wanted something so I slowly started feeling her belly and then started to lightly grope her boobs. I looked around at her noticed she was passed out still and instantly stopped
So I went to sleep on the small couch and that’s where I woke up
Hunter and Jordan can back me up on that at least”

68. The applicant also sent a series of text messages to Jordan Cheshire. That series of text messages became exhibit 5. Jordan Cheshire gave evidence that the following night when they were at the hotel, he and the applicant and Mr Martin had a conversation in which the applicant said to them “[Holly] is accusing me of rape”. He could not remember whether any further details were given. He was shocked. He later gave evidence that the applicant had said to them “I lied next to her on the couch and she pulled my shirt up and then I started to do it back to her, then realised she was too drunk and moved to the other couch”.
69. Mr Cheshire had another conversation with the applicant and with Mr Martin the following day in which the applicant gave a similar account, although he admitted that he had “fingered” her.

The ERISP

70. The applicant participated in a lengthy interview with police on 19 December 2017. He gave an account of the complainant’s intoxication at answers to questions 69-73 that “she had drank quite a bit of alcohol. She had a [sic] Canadian Club Drys” in cans and “several shots” of Fireball whisky. He saw her take five or six of these in different amounts. They were not necessarily full shots.
71. The applicant gave a long answer to questions 77 and 78 which included the following detail. He described how she had been “seemingly OK” with him cuddling her in the past so when he saw her on the lounge, he lay down behind her and started cuddling her. She woke up about five minutes later and asked whether it was Tom. He confirmed it was and she asked if she could undo her pants which were tight. She then pulled them down slightly. He continued to cuddle her and fell asleep. About 15 minutes later, he realised she had moved her backside into his crotch. She leaned over with her left hand and felt him. He thought she was “wanting to do something”. He slowly put his hand on her breast, and she started feeling his penis. He told police he moved slowly to make sure that she was comfortable with the situation. He thought that she would move away or say, “[n]o, Tom, I don't really want to do this” if she was not comfortable.
72. The applicant went on in the same answer to describe starting to put his hand down her pants. When he did so she moved more onto her back. When she did this he thought:

“OK, well this, this seems fairly consensual to me. You know? With, with the moving onto her back, and touching my crotch, and moving her backside.”

73. The applicant described how he slowly put his hand down her pants, and after about five minutes penetrated her with one then two fingers for about 10 minutes. He took his hand out and motioned her onto her right side. She “willingly” moved onto her right side within two seconds of that, “reassuring me that she was in fact aware of what was going on... she seemed fairly comfortable”. He continued to penetrate her with my fingers from behind. She still had her hands on his crotch and then she stopped. He thought this was because it was uncomfortable for her to reach over from that position. About five minutes later he looked over and noticed she had fallen asleep. He then stopped instantly, got up, and moved onto the smaller couch where he slept for the remainder of the night. He got about two hours of sleep.
74. He woke up when Hunter Martin and Jordan Cheshire left to pick up some tyres. Hunter told the complainant she could sleep in his bed if she wanted. She thanked him and left. He went back to sleep and awoke at 9am. He spoke to the complainant. He said to her, “[h]ow many drinks did you have last night? Are, are you OK?”. She told him she “didn’t have that many”. He disagreed.
75. He later described how when she was on her back she “seemed to be enjoying it” as he heard her breathing “pick up,” her hips were moving and it seemed like she was enjoying the act (A 285). He described thinking at the time, “that's fairly good consent, you know, she's moving, she hasn't said, stop. She hasn't said, no, she hasn't tried to move away, she has in fact moved closer with the, uh, backside coming towards me. And that's where I just thought, oh, OK, well that's, you know, do something” (A 286).
76. The applicant explained that he stopped as soon as he realised she had fallen asleep as his upbringing was, “you don't necessarily screw around with a girl who is asleep” (A 296-298). He stated:

“...it was almost like she, she had, she was finished. Uh, you know she had reached her, her end point, she had climaxed. And, uh, I guess she had fallen back asleep. So, that's where I realised, uh, OK, she's fallen back asleep. This is, if I continue, this will indeed be wrong and that's where I, I had gotten up and, and thought that was like that ending just wasn't necessarily right. And that's where I just moved, that's the reason I had just moved 'cause I just thought, no, I'm not comfortable with the situation that I am in.”

77. The applicant agreed that he had taken a photograph of the complainant’s vagina (A 311-316). He explained this as follows:

“I don't know why I really did it and, um, when I did do it, I saw that she didn't object to it. And she was, um, like she had a, she had her legs open. And she was, you know, sort of, seemingly moving around. The next morning I did delete it instantly---
I didn't feel right having it on there, I didn't feel right having that photo on my phone. Yeah, especially how it ended, I just, I didn't feel comfortable whatsoever.”

78. He agreed the photo was of her vagina and his hand was near it when he took the photo. He denied opening her genitalia to take the photo.
79. Interviewing police returned to the subject of the photo later in the ERISP (A 430-438). He told police he only took one photo and deleted it the next morning as it did not feel right having it on his phone after realising that she had fallen asleep. Later, he provided this answer to question 500 as to why he took the photographs:

“Um, to be completely honest, I think at the time it was more just I wanted to remember the night seeing as, you know, like, in the past, I, I had liked her. And laying there, like, it, it was, like, an exciting, sort of, nervous, sort of time, thinking that, wow, I, I never thought I'd really get the chance to, uh, do something like this with, with [Holly] of all people. So, it was more of a just, take a photo, remember it, never ever share it with anyone. And then, and then I got, as I said, the next morning, I got rid of it.”

80. The applicant denied telling the complainant that he loved her (A 392) and agreed that he performed cunnilingus on her, even though he had failed to mention that in his initial narrative (A 396-398). He stated it only went for 30 seconds and also said, “[s]orry for leaving that out.”
81. The applicant denied any penile-vaginal intercourse (A 466-471) but suggested that the complainant might have thought his fingers were his penis.

Defence case

82. Defence counsel opened on the basis that some aspects of the Crown case were not in dispute, namely digital intercourse, cunnilingus and the taking of the photo.
83. The applicant relied upon what he told police in his ERISP. The only witness called in the defence case was character evidence from Ms Camilla Webb, who did Navy cadets on a part-time basis and had supervised the applicant. Her evidence was that she was shocked by the allegations.

Closing addresses

Crown closing

84. There are two aspects of the Crown closing relevant to grounds 2 and 3: what was said about any “lies” and what was said about the deletion of the photograph the subject of count 5.
85. As for the question of any “lies” told by the applicant, the solicitor advocate for the Crown said the following:

“Now the accused’s version is quite clearly that [Holly] initiated the sexual contact. She was coming onto him and he reciprocated, and because of the physical signs, that’s what led him to believe that she was consenting. So that comes from his interview. But it also comes from the other things that he said to various people. Now the Crown’s submission is that you wouldn’t accept what he says as reasonably possible and you wouldn’t do that for a number of reasons. First of all, and I’ve just been through some of the inconsistencies and the contradictions in his interview, what he said to the police has become less and less believable as time goes on, it’s become simply unbelievable, some aspects.
Secondly, the version he eventually divulges to police, it’s not consistent with what he’s told other people, and I’ll refer you to some of what he’s told other people. Thirdly, what he’s told other people in and of itself varies from person to person, and then finally some of his evidence is contradicted and contradicted in one important respect in my submission, and that’s where [Holly] was going to sleep that night. So I want to just start by talking to you about what he told Hunter.”

86. As for the deletion of the photo (count 5), the solicitor advocate said this:

“The other aspect is the accused feeling bad for taking a photograph of [Holly’s] vagina. You might recall that he deleted it because he felt bad about how it ended. Now if what had happened happened the way he said it did, my submission to you is there would be absolutely no reason for him to feel bad about what occurred. My submission to you is that when you consider the evidence as a whole, when you consider how the accused felt about [Holly], the feeling he clearly had for her, he had for her through 2017, they existed up to and including the time of the incident. The Crown’s submission to you is that you would find that he found her in a vulnerable position and he took the opportunity to act on that sexual interest that he had for her and that he took advantage of her in that situation.”

Defence closing

87. It was submitted on behalf of the applicant at trial that there was not a “massive shift in [the applicant’s] sequence of events” and the following explanation was provided in the defence closing address for the changing story given by the applicant:

“... he doesn’t have to be believed beyond reasonable doubt, and you might think it is plausible that having given a general account of what happened he did miss some things that were, you might think, important things as the Crown says. But it may be that that’s simply a matter of his own recall rather than any deliberate attempt to mislead anybody when being interviewed by police, and if so why did he omit them? A matter for you.
It’s then said that in fact what happened was his position changed. So a pretty significant shift. When you actually break it down though, and again, you can have a look at what he says at question and answer 77, the only shift in his account was to recall the fact that there was a broken period of digital penetration of the complainant’s vagina. He’d already said that he had penetrated her vagina digitally while she was on her back. He’d already said that she had rolled over and he got behind and digitally penetrated from behind. This was without any prompting about the oral sex or the photo. So the only thing that’s changed in his version is in between those two he says, ‘That’s when the oral sex and the photo was taken.’ That’s the shift.
So let’s not say there’s a massive change in his sequence of events. It is those two things and only those two things that have changed in the overall narrative. Now it’s a matter for you what you make of that and whether that is something that would otherwise give you some doubt as to what he’s saying in the interview. But remember this, he doesn’t have to prove a thing, and to the extent that there is some doubt, then you are to put that out of your deliberations and ask yourself again the question, ‘Has the Crown proved its case?’ and in this case, ‘Is the word of [Holly] something I can trust beyond reasonable doubt as being both honest and accurate?’
...
So there’s a shift there and you might think that shift goes to him having an evolving story, which is something you might hold against him. Or you might just think that although he maintains his position consistently about rape and sexual assault generally he may not be wanting to go into full nitty-gritty details.”

88. As for the explanation for the deletion of the photo (count 5), defence counsel said the following in his closing address:

“You might think, well, hang on, his phone’s been seized by police and he might be concerned that they’d be able to recover the photo. There’s no evidence that a photo of the complainant’s vagina was actually recovered upon the forensic examination of that phone. You might think that in fact he has accepted those propositions when they were put to him because he reflected upon them and agreed to them that they happened. You know, remember, he doesn’t have to be believed beyond reasonable doubt, and you might think it is plausible that having given a general account of what happened he did miss some things that were, you might think, important things as the Crown says. But it may be that that’s simply a matter of his own recall rather than any deliberate attempt to mislead anybody when being interviewed by police, and if so why did he omit them? A matter for you.
...
You might think, particularly older members of the jury, like myself, you just don’t do things like that. But these things happen all the time. He’s excited, he knows that generally [s]peaking [Holly] does want to have a sexual relationship, as far as he’s concerned it’s consensual. He takes a photo. Now on reflection in the cool light of day, the next day, he deleted it, and he admits that. But is that really something that, in terms of the charge, shows that he knew that [Holly] was not consenting to the photo? He believes that she was conscious and didn’t stop him from taking the photo and he believed there was consent. After the event, given the fact that she on his account had fallen asleep, he deleted it.
That shows some remorse but maybe not consciousness of guilt, either of that aspect of the event, that charge in the event, or the event itself. You might just think that’s the kind of random millennial behaviour that unfortunately happens in society these days. It’s a matter for you but remember this, it’s not whether the accused conducts himself to your personal standards of behaviour or what you think should happen but whether or not when he took the photo he did so without [Holly’s] consent and knowing that she wasn’t consenting. You might just think that part of the overall behaviour on that night is explainable by the change in the behaviours in the community generally with smartphones and the like. A lot of the evidence here today is from the text messages that have been sent on these same smartphones. It’s just the way you might think these days young people operate in the community.” (emphasis added)

89. At the conclusion of the closing addresses and in the absence of the jury, the following exchange occurred:

“SOLICITOR ADVOCATE: The only other matter I wanted to raise was the consciousness of guilty [sic] aspect that my friend closed on. That wasn’t really the basis I closed on. I wasn’t necessarily inviting a consciousness of guilty [sic] reasoning, but my friend hasn’t suggested it would be a direction that your Honour give, but I just raise it for consideration.
HIS HONOUR: Mr Metcalfe? All right. I suppose if it arose at all it possibly arose in relation to the photographs, but that’s not how you’ve addressed Madam Crown.
SOLICITOR ADVOCATE: That’s not how I’ve put the case, no.
HIS HONOUR: You haven’t even suggested that he deleted them because he was told something by Nicola.
SOLICITOR ADVOCATE: No.
...
HIS HONOUR: Yes. Mr Metcalfe?
METCALFE: No, I have heard what has fallen from your Honour and my friend.
HIS HONOUR: Potentially there was an issue in relation to the photographs and the intention to take the photograph but it’s the case both the parties, in particular the defence, that he deliberately took the photograph and intended to.
METCALFE: Yes.”

90. Following this exchange, there was no request by defence counsel for any direction on the subject matter and none was provided by the trial judge.

The summing up

91. No complaint is made about the summing up in this appeal save as for the complaints under grounds 2 and 3.
92. The trial judge directed the jury as to the element of the applicant’s knowledge that the complainant was not consenting in detail. That direction was in the following terms:

“Therefore, the Crown must prove beyond reasonable doubt one of two facts before you can find the accused guilty. Either (a) that Mr Holt did not honestly believe that [the complainant] was consenting; or (b) even if he did have an honest belief in consent, there were no reasonable grounds for believing that [the complainant] consented to the sexual intercourse. It is for the Crown to prove that Mr Holt had a guilty mind. It must eliminate any reasonable possibility that Mr Holt did honestly believe on reasonable grounds that [the complainant] was consenting. Unless you find beyond reasonable doubt that the Crown has eliminated any such reasonable possibility, then you would have to find that this third element of the offence is not made out and return a verdict of not guilty of the charge being considered.
In determining whether the Crown has proved that Mr Holt actually knew that [the complainant] was not consenting to intercourse with him, you must take into account what steps were actually taken by Mr Holt to ascertain whether [the complainant] was consenting to intercourse. I have already indicated that the Crown can prove Mr Holt had a guilty state of mind in one of two ways. Either that Mr Holt actually knew that [the complainant] was not consenting, or even if Mr Holt believed at the time that [the complainant] consented, Mr Holt had no reasonable grounds for believing that [the complainant] consented to the sexual intercourse.
The Crown can also prove Mr Holt's guilty state of mind if it proves that he was reckless as to whether [he complainant] consented to the sexual intercourse. If Mr Holt was reckless, it is the law that Mr Holt will be taken to know that [the complainant] did not consent to the sexual intercourse. To establish that Mr Holt was acting recklessly the Crown must prove beyond reasonable doubt either

(a) Mr Holt's state of mind was such that he simply failed to consider whether or not [the complainant] was consenting at all and just went ahead with the act of sexual intercourse even though the risk that [the complainant] was not consenting would have been obvious to someone with Mr Holt's mental capacity, if they had turned his mind to it; or
(b) Mr Holt's state of mind was such that he realised the possibility that [the complainant] was not consenting but went ahead regardless of whether she was consenting or not.

You must examine what Mr Holt's state of mind was, but in doing that, you have to ignore any effects of intoxication. If you think that his ability to think or understand what was going on was affected by alcohol, then you have to put that to one side. You have to look at Mr Holt and ask what would have been going on in his mind if he had not ingested alcohol? But apart from that qualification, it is Mr Holt's mind you should consider. It is not a question of what you could have realised or thought or believed. It is not a question of what a reasonable person would have thought or believed. You look at what was going on in the mind of Mr Holt, or to be more precise, what would have been going on in the mind of Mr Holt if he was unaffected by alcohol.”

93. No direction was given in relation to either the versions provided by the applicant or the deletion of the photo. Despite this, the trial judge did summarise the Crown closing on the topic of the applicant’s credibility in these terms:

“[The solicitor advocate for the Crown] said that these additional details were important for three reasons. The first was that his story had changed, which reflected very poorly on his credibility, and that this had a knock-on effect, in effect. The other details were implausible when you consider his initial evidence about the sequence of events, their body positions and the position of clothing et cetera, that the way the story changed affected his credibility in relation to that sequence of events and their body positions et cetera. That the additional detail provided in relation to the photos and the oral intercourse and so on, and indeed picking up the phone off the floor, these confirmed aspects of [Holly's] evidence.”

94. As for the relevance of the deleted photo, his Honour described the Crown case in this way:

“Another issue that was referred to as being in dispute is of course his knowledge. On the Crown case, he thought she was passed out and the Crown said that you would be satisfied that that was the accused’s state of mind, that is that he thought she was passed out...
She also relied on the fact that the accused said that he had deleted the photo he said he had taken of her genitals the following day because he realised it was inappropriate for him to have done so, and to have the photo of her genitalia on his phone. The Crown said in relation to that if she was consenting and he honestly believed she was consenting, he would not have had any reason to feel bad about the fact that he had taken a photo of her genitalia, and a need to be embarrassed by that fact and delete it the following morning immediately, as he said he did.”

THE GROUNDS OF APPEAL

Ground 1: Inconsistent verdicts

The applicant’s submissions

95. Ground 1 contends that the verdicts of guilty on counts 4 and 6 are unreasonable or cannot be supported having regard to all the evidence. Counsel for the applicant submitted that, aside from the issue of consent, there would be no basis to distinguish the complainant’s evidence on counts 4 and 6 from the counts on which the applicant was acquitted and thus the different verdicts were not capable of any logical explanation.
96. It was submitted that the acquittals on counts 1 and 2 could be explained by the jury accepting the complainant’s evidence but not being satisfied as to the applicant’s knowledge of her lack of consent. On this basis it was, however, submitted that the only logical explanation for the acquittals on counts 3 and 7 was that the jury rejected the complainant’s evidence in its entirety.
97. In relation to count 3, where the applicant denied the penetration occurred at all, it was submitted that the only explanation for the acquittal was a complete rejection of the complainant’s evidence. Similarly, the applicant denied engaging in the act subject of count 7 and it was submitted that the acquittal could only represent a complete rejection of the complainant’s evidence on this count. It was submitted that the complainant gave “clear and unequivocal” evidence of penile-vaginal penetration on count 7 and that this must have been rejected by the jury.
98. It was further submitted that no rational explanation for the acquittals could be found in the applicant’s evidence in his ERISP or in the statements he made to friends in the days after the events.

Crown submissions

99. The Crown submitted that there are logical explanations for the jury’s verdicts and reasonable explanations for the acquittals, other than doubts about the complainant’s credibility.
100. It was submitted that the jury’s verdict was 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 trial judge’s directions. In particular, it was submitted that the verdicts reflected the jury’s obligations to give separate consideration to each count and the direction that the evidence of each witness may be accepted in whole or in part: AH v R [2019] NSWCCA 152 at [62].
101. The Crown submitted that, given the complainant’s intoxication and the evidence of Dr Farrar about memory fragmentation, the Court would find that the explanation for the acquittals on counts 1, 2 and 3 was the complainant’s unreliability given the evidence of possible alcohol-induced fragmentation of memory.
102. The Crown submitted, however, that from the point the applicant turned the complainant onto her back and performed the act subject of count 4, the jury would clearly have been satisfied that there was no consent (and presumably, that the applicant must have known this). The Crown further noted that all the acts subject of counts 4-6 were admitted by the applicant in his ERISP (although he said that he only took one photograph).

Consideration: Ground 1

103. Section s 6(1) of the Criminal Appeal Act relevantly provides that this Court shall allow an appeal against conviction if it is of the opinion that the verdict should be set aside on the ground that it is “unreasonable, or cannot be supported, having regard to the evidence” (“the first limb”). As the High Court (French CJ, Bell, Keane and Nettle JJ) held in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15] is this Court is persuaded that the first limb applies, it will follow that it has concluded that there has been a “substantial miscarriage of justice”. The applicant contends that this Court should set aside the convictions on counts 4 and 6 on this basis.
104. The relevant principles for an appellate court to apply when considering whether a verdict is “unreasonable” in this context are well established. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63, Mason CJ, Deane, Dawson and Toohey JJ explained the relevant test in this way (at 493):

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” (footnotes omitted, emphasis added)

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

“The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.” (emphasis added)

106. As to the role played by the jury, McHugh, Gummow and Kirby JJ observed this in MFA at [96]:

“Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence. In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention.”

107. In the present appeal, the applicant bases his claim of unreasonableness on an alleged inconsistency between the acquittals on counts 1, 2, 3 and 7 and the convictions on counts 4 and 6. The relevant principle regarding unreasonable verdicts based on alleged inconsistency is as stated by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348 at 366-367; [1996] HCA 35 as follows:

“Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:

‘He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.’

Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.” (footnotes omitted)

108. Justice Simpson (as her Honour then was) considered the application of these principles in R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151. In a judgment with which McClellan CJ at CL and Latham J agreed, her Honour observed the following at [128] and [130]:

“[128] ... In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis.
...
[130] Before ... an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility. ... The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility.” (emphasis in original)

109. Subsequently, in AH v R, Simpson AJA observed at [62] that:

“... differential verdicts, far from providing an indication that a jury has fallen down in its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count.”

110. In Wheeler v R [2019] NSWCCA 255, Garling J (with whom Bathurst CJ and Wright J agreed) observed at [19]:

“In circumstances where a jury returns differential verdicts for multiple counts charged against one applicant on the basis of evidence from one complainant, this Court must consider whether the differential verdicts are irreconcilable or not. This is a test of ‘logic and reasonableness’: M[a]cKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at 366.” (emphasis in original)

111. Payne JA recently observed in Kim v R [2020] NSWCCA 288 at [35]:

“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 v The Queen (2002) 213 CLR 606; [2002] HCA 53. In MFA, Gleeson CJ, Hayne and Callinan JJ said at [34], that ‘[a] verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.’ Echoing McHugh J in KRM, their Honours explained that it must be borne in mind that where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count, and will ordinarily be directed that the evidence of each witness may be accepted in whole or in part.”

112. Applying these principles to the evidence at trial, it was common ground that the relevant test is whether the differential verdicts are reconcilable, applying a test of “logic and reasonableness”. In particular, the question is whether there is an explanation for the acquittals. The nub of the applicant’s complaint is that the complainant’s evidence was such that there was no basis to distinguish the convictions on counts 4 and 6 from the acquittals on counts 1, 2, 3 and 7. Although it was conceded by the applicant that there were possible explanations for the acquittals on counts 1 and 2, these explanations did not rely upon the complainant’s credibility and it was submitted that the only explanation for the acquittals on counts 3 and 7 was a complete rejection of the complainant’s evidence.
113. Counts 1, 2 and 3 were said to have occurred as the complainant was waking up and immediately thereafter. On the applicant’s version the complainant had woken up and asked if it was all right if she undid her pants. He then began to fall asleep. His account is that 15 minutes later the complainant moved her backside into his crotch and leaned over and started lifting up his shirt. His explanation was that “she may be wanting to do something” (A 77).
114. In relation to count 1 (digital penetration), the applicant admitted the act but asserted that he believed she was consenting. In relation to count 2 (the applicant moving her hand on his penis), the applicant agreed her hand was on his penis but denied he put it there and relied upon knowledge of consent. In relation to count 3 (digital penetration of anus), the act was disputed.
115. The first three counts were all alleged to have occurred as the applicant and the complainant were waking up. I am satisfied that there are explanations for these three acquittals that do not rely upon a rejection of the complainant’s credibility.
116. The first explanation is that the jury accepted the complainant’s evidence but returned a not guilty verdict on the basis of the applicant’s knowledge of any lack of consent in relation to these first three counts. A logical explanation for the verdicts of acquittal includes that the jury may have given the applicant the benefit of the doubt in respect of counts 1 to 3 on the basis that it may have been initially unclear whether the complainant was not consenting given the circumstances and the cuddling position.
117. Alternatively, the jury may not have been satisfied beyond reasonable doubt about the complainant’s evidence on counts 1 to 3 given the evidence from Dr Farrar about fragmented memory. I have considered the evidence of Dr Farrar, some of which I have extracted above. It is to be noted that the jury requested the transcripts of the evidence of the complainant and that of Dr Farrar. A doubt may have attached to the complainant’s reliability rather than her honesty, in light of her intoxication and the impact this may potentially have had on her memory. The jury may well have allowed for the reasonable possibility that the complainant either rubbed against the applicant as she was asleep and/or had a fragmented memory of what occurred when she first woke up. That does not mean that the jury concluded that the complainant was not credible on these counts.
118. The jury then convicted the applicant on counts 4, 5 and 6.
119. In relation to count 4 (cunnilingus), the applicant admitted the act, the complainant had expressed concerns about an infection due to that act and it occurred immediately before the taking of the photograph. In relation to count 5 (the taking of the photo), the act was admitted, and the only issue was consent. In relation to count 6 (digital penetration), this act occurred immediately after the photograph and was admitted, the only issue being consent.
120. The benefit of the doubt the jury extended to the applicant in relation to his knowledge on counts 1, 2 and 3 did not extend to the next three counts where the jury was obviously satisfied that the applicant must have known that the complainant was not consenting by that point.
121. It is to be noted that counts 4 and 6 were committed immediately before and after the taking of the photo. Given that the Crown case on count 5 was so strong, I am satisfied that the Crown case on the counts immediately before and after the taking of the photograph was also strong.
122. The final count, count 7 (penile-vaginal intercourse), was the subject of an acquittal. That act was disputed. I am satisfied that there are at least three explanations for the acquittal on count 7 that do not turn on a rejection of the complainant’s credibility.
123. First, the applicant suggested in his interview that the complainant may have mistaken his finger for a penis (A 466-469). Although it is to be accepted that the complainant stated that it was a penis and not a finger, giving the applicant the benefit of the doubt on this issue does not mean that the complainant’s credibility was rejected. The jury may not have been satisfied beyond reasonable doubt on count 7 because the applicant denied penile-vaginal intercourse.
124. Second, in addition to the applicant admitting the cunnilingus the subject of count 4, there was further support for that act from the text message in which the complainant expressed concern about having a UTI due to the applicant performing cunnilingus on her and not, as she also alleged, because of penile-vaginal intercourse. This evidence strengthened the Crown case on count 4 stronger but weakened it on count 7. In the face of the applicant’s denial of any such act and without any support from contemporaneous text messages, the jury may have looked for additional support. That does not mean that the complainant was disbelieved. On the contrary, it is consistent with the jury having regard to the directions given to them concerning, inter alia, the standard of proof.
125. The third explanation for the acquittal on count 7 arises in this way. One aspect upon which both the complainant and the applicant gave a similar account was that part way through count 7 the applicant suddenly stopped and moved to another couch. Another explanation for the acquittal on the last count was that the jury gave the applicant the benefit of the doubt for desisting when he belatedly realised she was asleep.
126. I have also had regard to the fact that the jury was directed to consider each count separately, to pay careful attention to the complainant’s evidence and scrutinise her evidence with care, that they were not obliged to accept all of a witness’ evidence but could accept part and reject part, and directions as to the burden and standard of proof. Having regard to all of these matters, I am not satisfied that the verdicts on counts 4 and 6 are unreasonable.
127. Leave is required to argue this ground as it is a mixed question of fact and law. The Crown did not oppose such leave being granted.
128. I would grant leave but dismiss this ground.

Ground 2: Lies

Applicant’s submissions

129. The applicant submitted that the trial judge was obliged to give the jury a direction as to the limited use they could make of the applicant’s changing story about the relevant events. The applicant contended that there was significant evidence before the jury of the applicant’s changing story and that this evidence was simply left to the jury in relation to credibility when the jury was in fact being asked to conclude that the applicant had lied.
130. The applicant noted that in the defence closing address it was put to the jury that there was an innocent explanation for the applicant’s changing story, that being that he did not want to get into the “nitty-gritty” of the incident unnecessarily. Counsel for the applicant at trial also put to the jury that the inconsistencies were not significant, and that the applicant was generally consistent in his account. But the trial judge elevated the importance of this aspect of the Crown case as extracted above at [93].

Crown submissions

131. The Crown submitted that no such direction was warranted in the circumstances of the trial.
132. The Crown relied on the fact that the applicant was legally represented, that the Crown had not cross-examined the applicant and put to him that he had lied, and that it was not suggested in the Crown’s closing address that the applicant had lied or changed his story due to consciousness of guilt. It was thus submitted that in the circumstances of the trial there was no risk of the jury misunderstanding the way the Crown put its case such that a miscarriage of justice could arise.

Consideration: Ground 2

133. There are two ways in which the Crown may seek to rely upon lies told by an accused person. If the lie relates to a material issue at the trial, the Crown may rely upon the lie as exhibiting consciousness of guilt of the charged offence or offences. Reliance upon “consciousness of guilt” reasoning requires caution to be exercised. As Deane, Dawson and Gaudron JJ observed in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 at 210-211:

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of ‘a realization of guilt and a fear of the truth’.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.” (footnotes omitted)

134. A direction in these terms is referred to as an “Edwards” direction. It requires the jury to be satisfied of a number of factors before they can rely upon the alleged lie in the manner advanced by the Crown. Such a direction need only be given if either the Crown contends that a lie is evidence of guilt or there is something about the manner in which the Crown has cross-examined the accused or addressed the jury which gives rise to the need for such a direction. An example of the latter can be found in DC v R [2019] NSWCCA 234.
135. The second way in which the Crown may rely upon alleged lies told by an accused person is as being relevant to his or her credibility. If an accused person either participates in an ERISP or gives evidence at trial, the fact that he or she may have told lies on matters which are not material can be considered by the jury as relevant to whether his or her version of events is to be accepted (having regard, of course, to the fact that the burden of proof remains on the Crown at all times).
136. In the second category of lies, being those relied upon by the Crown as relevant only to the assessment of the accused’s credibility, it will usually be necessary to direct the jury as to the limited way in which those lies can be used by them. That direction is set out by the majority of the High Court (Gleeson CJ, Gaudron, Gummow and Callinan JJ) in Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [23]- [24] as follows:

“A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:

‘You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.’

A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.”

137. A direction in these terms is known as a “Zoneff” direction.
138. These directions as to the use the jury can make of alleged lies were considered in Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 at [34]. Gleeson CJ and Hayne J observed that it is not always necessary for a trial judge to give a direction on lies. Their Honours observed at [34] that:

“It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.” (footnotes omitted)

139. The applicant contends that the trial judge erred in not giving a Zoneff direction. I am not satisfied that such a direction was required in this trial for two reasons.
140. First, at no time did the Crown ever suggest to the jury that the applicant had told lies. The applicant did not give evidence thus it was not suggested to him in cross-examination that he had lied. Nor was it ever suggested to the jury in the Crown closing address that the applicant had told lies. I have set out the versions provided by the applicant at [66]-[83]. None of them are identified as “lies”. Nor were they relied upon in this way. It was common ground that the applicant initially failed to mention the cunnilingus in his ERISP and had earlier downplayed what had happened to his friends.
141. The Crown case was that there were some inconsistences in the applicant’s account and that his version emerged over time, but the Crown did not suggest that the applicant had lied. It is to be accepted that the Crown invited the jury to reject the applicant’s explanation and accept the complainant’s explanation. In doing so, the jury were invited to consider the accounts first given by the applicant to his friends and later in more detail to police. But, as was submitted by his counsel, this was consistent with the applicant not wishing to discuss what had occurred in intimate detail. In fact, it was submitted to the jury in the defence closing address that the applicant had been generally consistent in his account of the incident. At all times, he alleged that the acts occurred with consent.
142. The Crown case was that the complainant’s version should be accepted. The applicant’s case was that given in his final version in the ERISP. It was a matter for the jury to be satisfied beyond reasonable doubt that the offences took place and they were directed accordingly.
143. In this context, if a Zoneff direction had been given the jury’s attention would have been directed, for the first time, to the fact that there was a suggestion that the applicant had lied in circumstances where neither the Crown nor the defence were suggesting this.
144. The second difficulty with the complaint made under this ground is that there was no suggestion at the trial that such a direction should be given, despite a number of opportunities to do so. At trial, the trial judge invited defence counsel to inform him of any directions that were sought. The directions were discussed after the closing addresses. His Honour also provided parties with the draft of his proposed directions and it was discussed further the following day. When he finished his summing up, his Honour specifically inquired whether there was anything arising from it that counsel sought to change or add to and repeated that inquiry in the absence of the jury.
145. The Crown relied upon r 4 of the Criminal Appeal Rules in relation to this ground. Rule 4 is in these terms:

"No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."

146. In ARS v R [2011] NSWCCA 266, Bathurst CJ (James and Johnson JJ agreeing) summarised some of the relevant decisions of this Court regarding the effect of r 4 and observed the following at [148]:

“The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].
The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]- [21].
A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]- [13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]- [61].
An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130].”

147. The Crown submitted that the absence of any request for such a direction meant that defence counsel saw no injustice in what was done.
148. I have considered the position taken by counsel at trial in the context that the jury was directed to consider each count separately and was directed about the burden and standard of proof throughout the summing up (in fact the trial judge said the words "beyond reasonable doubt" 43 times in his Honour’s summing up). The jury was directed about the complainant's evidence and the importance of paying careful attention to what she said and to scrutinise her evidence with care. The jury was also directed that it was not obliged to accept all of a witness’ evidence but could accept part and reject part of it. The jury was directed that they were obliged to accept that the applicant was a person of good character and that that could be taken into account as a reason that he was unlikely to have committed the offences.
149. I would refuse leave to rely upon this ground under r 4 of the Criminal Appeal Rules.

Ground 3: Deletion of the photograph

Applicant’s submissions

150. Counsel for the applicant submitted that the sentencing judge erred in not giving a consciousness of guilt direction in relation to the applicant’s evidence about deleting the photograph subject of count 5.
151. It was accepted that the Crown did not rely upon the deletion of the photo as post-offence conduct suggesting consciousness of guilt. Despite this, it was submitted that defence counsel at trial had addressed the jury on this point and that that part of the closing address was repeated in his Honour’s summing up.
152. It was submitted that there was a risk of confusion or doubt about the way in which the prosecution put its case which meant it was necessary for the trial judge to give the jury an Edwards direction.
153. It was further submitted that the trial miscarried because of the trial judge’s failure to remind the jury of the available alternative explanations for the applicant’s answers: Christian v R [2012] NSWCCA 34 at [83].

Crown submissions

154. The Crown submitted that no Edwards direction was warranted in the circumstances because the Crown did not rely upon the applicant’s deletion of the photograph as consciousness of guilt. Nor was any submission made that the photo was deleted because the applicant knew it would implicate him in the offence.
155. It was submitted that the Crown’s closing address did not allege that the applicant deleted the photograph in order to destroy evidence due to consciousness of guilt.
156. The Crown submitted that leave should be refused under r 4 of the Criminal Appeal Rules, or in the alternative, that the Court would find that there was no substantial miscarriage of justice.

Consideration: Ground 3

157. This ground relied upon the principles derived from the decision of the High Court in Edwards as extracted above at [133]. Just as lies can be relied upon by the Crown as evidence of a consciousness of guilt, so too can post-offence conduct. The most common of these is flight. In R v Cook [2004] NSWCCA 52, Simpson J (as her Honour then was), with whom Ipp JA and Adams J agreed, set out the relevant principles concerning the directions about lies in Edwards, Zoneff and other cases and then observed the following at [25]:

“The principles developed in relation to evidence of lies are readily adaptable to the circumstance where the Crown tenders evidence of flight said to be indicative of a consciousness of guilt. Evidence of flight may be admitted where the jury may legitimately infer that the flight was occasioned by consciousness in the accused person of guilt – that is, of guilt of the offence with which he/she is charged.”

158. In Mark McKey v Regina [2012] NSWCCA 1; (2012) 219 A Crim R 227, Latham J (with whom Whealy JA and Hislop J agreed) observed the following at [26]:

“The law has always recognized the legitimacy of reliance upon post-offence conduct in support of a prosecution case. The most common example of such post-offence conduct is lies told by an accused ( Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193), although an accused's silence in response to an allegation which he/she might reasonably be expected to deny ( R v MMJ [2006] VSCA 226), the destruction of evidence ( R v Nguyen [2001] VSCA 1) and attempts to influence the evidence of witnesses ( R v Smit & Ors . [2004] NSWCCA 409) all fall into the same category. Similarly,

Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. ...... It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself:..
Wigmore on Evidence, Vol 2, (1979) par 276(4)”.

159. Count 5 on the indictment alleged that the applicant had taken photos of the complainant’s vagina during the sexual assault. When police put this allegation to the applicant in his ERISP he did not deny this. I have summarised the relevant answers the applicant provided in his ERISP above at [70]-[81]. His explanation for taking the photo was that he never intended to share it, he just wanted to remember the occasion. But the following morning he deleted it “instantly” as he “didn’t feel right having it on ... [his] phone.” He went on to explain that this was “especially [because of] how it ended”. How it ended, on the applicant’s version, was that the complainant fell asleep, so he stopped.
160. The applicant readily admitted that he had taken a photo of the complainant’s vagina. The issue in dispute was whether he did so with consent as part of a consensual sexual encounter. It seems to me that the explanation given by him was an exculpatory one consistent with his account that it was a consensual encounter until the very end when he realised that the complainant was asleep and immediately stopped. The fact that the jury acquitted the applicant on count 7 was consistent with their acceptance of this discrete part of the applicant’s version (and was also consistent with the complainant’s description of how the act the subject of count 7 ended).
161. The Crown expressly did not rely upon the deletion of the photograph as any evidence of consciousness of guilt. It was defence counsel who, when noting that the photo was deleted due to the applicant’s remorse, went on to expressly disavow that it was done out of “consciousness of guilt”. As the transcript extract above at [89] shows, the solicitor advocate appearing for the Crown was quick to place on the record that that was not the basis upon which the Crown referred to that evidence.
162. Having regard to the manner in which both the Crown and the defence put their cases, I am not satisfied that an Edwards direction should have been given, as is now suggested. There was no real risk of confusion about how this evidence might be used.
163. The facts of this case can be distinguished from DN v R [2016] NSWCCA 252. In that matter, an accused person in a sexual assault trial had taken photographs of the complainant’s bare breasts. The accused person was cross-examined by the Crown about this and in the closing address it was put to the jury that the disposal of that photo supported the complainant’s account of the events the subject of the trial. This Court held that a direction concerning consciousness of guilt should have been given on the facts of that matter.
164. As with ground 2, no request for any such direction was made to the trial judge and r 4 applies. I am satisfied, on the record of trial in this matter, that this is a “reasonably reliable indicator of [the] fairness and adequacy [of the summing-up]”: Tekely v R; Nagle v R [2007] NSWCCA 75 at [88]- [89], [130].
165. I would refuse leave to argue this ground under r 4.

ORDERS

166. I would propose the following orders:

(1) Grant leave to appeal on ground 1.

(2) Refuse leave to appeal on grounds 2 and 3 pursuant to r 4, Criminal Appeal Rules.

(3) Appeal is dismissed.

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