Elsworth v R [2022] NSWCCA 276 (16 December 2022)

Last Updated: 18 January 2023

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Elsworth v R
Medium Neutral Citation:	[2022] NSWCCA 276
Hearing Date(s):	24 October 2022
Date of Orders:	16 December 2022
Decision Date:	16 December 2022
Before:	Garling J at [1] Button J at [2] Wilson J at [3]
Decision:	1. Leave is granted to appeal. 2. The appeal is dismissed. 3. The date upon which the sentence imposed upon the applicant on 15 October 2021 is to commence is varied, such that the sentence of 3 years imprisonment is to commence on the date upon which the applicant enters custody pursuant to warrant. The non-parole period of 18 months imprisonment will expire 18 months after that date.
Catchwords:	CRIME – APPEAL – appeal against conviction – sexual intercourse without consent – verdict of guilty returned to one count and not guilty to two further counts – whether verdicts inconsistent – whether offence to which guilty verdict returned not supported by the evidence – whether error in refusal to allow evidence to be led of prior sexual activity
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	AJ v R [2022] NSWCCA 136 Attwater v R; Maris v R [2021] NSWCCA 17 Decision Restricted [2021] NSWCCA 51 GEH v The Queen [2012] NSWCCA 150; 228 A Crim R 32 Jackmain (a pseudonym) v R (2020) 102 NSWLR 857; 284 A Crim R 483; [2020] NSWCCA 150 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348 at 366; [1996] HCA 35 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 R v Stone (Court of Criminal Appeal (UK), Devlin J, 13 December 1954, unrep) R v White (1989) 18 NSWLR 332 SKA v The Queen (2011) 243 CLR 400; 2011 HCA 13
Category:	Principal judgment
Parties:	Benjamin Scott Elsworth (Applicant) Rex (Respondent)
Representation:	Counsel: P Boulten SC & L Hutchinson (Applicant) C Curtis (Crown) (Respondent) Solicitors: Mitchell & Co Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Crown) (Respondent)
File Number(s):	2019/00338327
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	District Court
Jurisdiction:	Criminal
Citation:	[2021] NSWDC 555
Date of Decision:	15 October 2021
Before:	Mahony SC DCJ
File Number(s):	2019/00338327

JUDGMENT

1. GARLING J: I agree with the orders proposed by Wilson J, and with the comprehensive reasons which her Honour articulates. Having considered the entirety of the evidence at the trial, I am well satisfied that the verdict of the jury on Count 2 is not unreasonable, and that it is supported by the evidence which was before the jury.
2. BUTTON J: I agree with Wilson J. On my own assessment, the conviction is neither unreasonable nor unable to be supported.
3. WILSON J: From 23 March 2021 to 12 April 2021 the applicant, Benjamin Elsworth, stood trial before his Honour Judge Mahony SC and a jury in the District Court of New South Wales on an indictment charging him with assault occasioning actual bodily harm (“AOABH”) contrary to s 59(1) of the Crimes Act 1900 (NSW) and three counts of sexual intercourse without consent contrary to s 61I of the same Act. The applicant pleaded guilty before the jury panel to count 1, the offence of AOABH; a verdict of guilty was returned by the jury with respect to count 2, a charge reflecting an act of digital-vaginal sexual intercourse. Verdicts of not guilty were returned against the remaining two counts alleging sexual intercourse without consent. The applicant now seeks to appeal against his conviction with respect to count 2, advancing two grounds. As neither ground concerns a question of law alone, the leave of this Court to appeal is required: s 5(1) Criminal Appeal Act 1912 (NSW).
4. The proposed grounds of appeal are as follows:

(1) The verdict of the jury regarding count 2 is unreasonable and cannot be supported in light of the not guilty verdicts on counts 3 and 4; and

(2) The learned trial judge erred in refusing the application by the [applicant] to admit certain material pursuant to s 293 of the Criminal Procedure Act 1986 (NSW).

5. Ground 1 requires careful consideration of all the evidence placed before the jury at trial, evidence which is summarised below. As s 578A(2) of the Crimes Act applies to prohibit the identification of the complainant in these proceedings, she will be referred to only as Ms B. Other witnesses whose names might lead to the identification of Ms B will also be anonymised.

The Proceedings Before the Jury

6. On 23 March 2021 the applicant was arraigned before the jury panel on an indictment containing four counts. The charges and pleas entered are extracted below:

“CHARGE 1 For that he, on 20 October 2019 in Potts Point in the State of New South Wales, did assault [Ms B], thereby occasioning actual bodily harm to her

PLEA Guilty

CHARGE 2 Further for that he, on 20 October 2019 in Potts Point in the State of New South Wales, did have sexual intercourse with [Ms B] without her consent, and knowing that [Ms B] was not consenting

PLEA Not guilty

CHARGE 3 Further for that he, on 20 October 2019 in Potts Point in the State of New South Wales, did have sexual intercourse with [Ms B] without her consent, and knowing that [Ms B] was not consenting

PLEA Not guilty

CHARGE 4 Further for that he, on 20 October 2019 in Potts Point in the State of New South Wales, did have sexual intercourse with [Ms B] without her consent, and knowing that [Ms B] was not consenting

PLEA Not guilty”.

7. The first witness in the Crown case was Ms B. Ms B was aged 20 years in October 2019 (and 22 years old when she gave her evidence). She told the jury that during 2019 she was employed at a bar in Bondi (“the Bar”), as the front of house Manager. Her duties including serving customers, taking payment, and opening and closing the bar. She lived alone in a one bedroom apartment in Potts Point at that time. Her apartment had an open plan living and dining area, and a bedroom which was separate from the living area, although there was no door between the spaces. The bedroom had an ensuite bathroom.
8. Ms B was rostered to work at the Bar on Saturday 19 October 2019, commencing her shift at 2pm. The shift was scheduled to end when the Bar closed, between 12:00 – 1:00am the following morning. Ms B thought it was possible that, when she began work, she had a small alcoholic drink, as it was customary for the staff to gather together for that purpose. If she did, that was the only alcoholic drink she had that night.
9. Around 8:30pm on 19 October 2019 a party of seven guests entered the Bar. Two of the guests were friends of the Bar’s general manager, Ms M, and Ms B had instructions to ensure that the group was well looked after. She attended to the group as waiter, serving the party frequently throughout the evening. As closing time approached, she was asked by members of the group to join them when they went on to another venue. She had indicated that she might.
10. One male member of the group, the applicant, had paid Ms B particular attention during the evening. Towards the end of the night, he left his friends to speak to Ms B, asking her for her telephone number so that he could send her the details of the venue his group of friends went on to. Ms B gave him her number, and her mobile telephone to allow him to enter his number into the device. He did so, nominating himself as “Benjamin what a fucking guy... crazy”.
11. The Bar closed at midnight and guests left. Ms B remained, dealing with the procedures to lock up the Bar so that she could leave. As she went about her tasks the applicant sent Ms B a number of messages, asking her if she would have a drink with him alone. Exhibit (“Ex.”) C contained a record of the exchanges. The messages were initiated by the applicant, who asked Ms B repeatedly about “ditching” his friends and going out alone with him. Ms B’s responses were unenthusiastic. She described them as “deflecting the request in a nice way”.^[1]

Time	Sender	Message Content
12:38am	Elsworth	Who knows.. can we ditch them and have a night out?
12:38am	Ms B	Hahahah let’s see what time I finish up here
12:38am	Elsworth	I mean, I’m putting them all in cabs now
12:39am	Elsworth	I’ll stick around and see you afterwards.. and we’ll figure it out from there..
12:41am	Ms B	Hahaha I have work so early tomorrow ! *crying emoji face*
12:41am	Elsworth	Look, let’s just see what’s next.. *winky emoji face*
12:41am	Elsworth	Not that I’m pushing too hard
12:45am	Elsworth	Haha
12:48am	Elsworth	Okay.. I sent them all home..

12. Following the message at 12:48am the applicant sent further messages to the effect that he was outside the Bar, and asking to be allowed in. Ms B, who was with two other staff members at the time, told him to come in. She explained in cross-examination that:

“The reason why I said come up is because I couldn’t text, continue to have the conversation out of him asking me did I want to go out and me saying no, I couldn’t continue to text and do that so I didn’t want to be rude so he - I thought that I would just have the conversation in person. It wasn’t about saying no or yes to coming up the stairs, it was more about I couldn’t continue to have a texting conversation and do my work at the same time to which I thought it would be better to have the conversation in person considering he was downstairs if you understand what I mean.”^[2]

13. The applicant sat with Ms B as she attended to paperwork, asking her to have a drink with him after she finished work. She told him that she was tired, and had only eight hours between shifts, but he was “pretty insistent”.^[3] He stayed at the Bar with her, even as the other staff left. When Ms B locked the Bar and left the premises the applicant accompanied her outside, still urging her to have a drink with him. His response to her pleas of tiredness was to suggest that they go to her apartment “so that we can sleep”.^[4] Ms B eventually agreed, having been “worn down”^[5] by the applicant’s persistent requests and entreaties, although telling him firmly that she was “only going to sleep” and “I will not have sex with you”.^[6]
14. Ms B told the jury:

“So I called an Uber from Campbell Parade, which picked us up. When we were in the car ride to Potts Point I kind of jokingly said, “I hate you right now” because now I’d said no and I was really tired and I didn’t really want to go out or do anything, I just wanted to go out and go to sleep so I jokingly said, you know, half joking, half serious that, “I hate you right now” because I was kind of annoyed that I’d agreed to say yes, and Ben said to me, “You’re going to hate me even more later,” which didn’t - I just took lightly and didn’t think too much of.”^[7]

15. After arriving at her apartment Ms B attended to her ordinary bedtime routine, such as removing her makeup and showering. She dressed in nightwear and, returning to her bedroom from the bathroom, told the applicant that she was going to bed. She turned off the light, climbed into bed, and turned to face the wall. She believes that she fell asleep.
16. She awoke to the applicant running his hand up and down her leg. As she did not want to engage, she remained as if asleep, in the hope the applicant would stop what he was doing. Instead, without warning, he put his fingers into her vagina. This is the conduct reflected by the charge of sexual intercourse without consent, of which the applicant was found guilty by the jury.
17. Ms B described what next occurred as follows:

“[...] he put his fingers into my vagina and again I didn’t engage, I didn’t say anything to him, I just really wanted to, you know, I’d said I didn’t want to have sex and I just wanted to continue to not engage and not give him any reason to think that I was interested or into it. After I think maybe one minute or two he then flipped(?) me over suddenly onto my stomach and he pressed his hand into the back of my head so that my head was like into like facedown into the mattress, and at some point he took my underwear off, I’m not sure when exactly that happened. He then put his penis into my vagina and began to penetrate me.

As he did that he brought his right arm around, so that it was wrapped around my throat and it was so tight that I - I couldn’t breathe, I couldn’t speak and he was still penetrating me, I tried to - I started trying to kind of pull him off and loosen his grip around my neck. I actually remember I couldn’t get any oxygen through and, yeah, he was just around really tight, and after a while he kind of let go and for a moment I just started to cough and just tried to gasp and get some air back into my lungs as much as I could, and noticing as he kind of let go he then re-engaged around the same way, except this time part of his arm, forearm, was over my mouth, so that my teeth started to cut into my - like my not my lip but my kind of gums on the inside and I just remembered the pressure was so strong that it felt like all my teeth were going to be dislodged, kind of the socket and again I just couldn’t - I couldn’t breathe and I was just pulling, had my arms wrapped around his forearm and I was just pulling down as hard as I could to try and loosen his grip but it felt like the more I pulled it down just the tighter it got.

Q. Where was his penis at that stage?

A. It was still penetrating me inside my vagina, and at some point, yeah, he also put his finger inside of my anus but I’m not sure exactly when that happened.

Q. Did you consent to Benjamin Ellsworth putting his penis inside your vagina--

A. No.

Q. --or his finger in your anus?

A. No. So he had his arm, yeah, engaged as really, really tight. I started to feel very, like I was kind of starting to feel a bit, I don’t know if weak is the right word but I just was struggling so much for oxygen and then eventually he disengaged his arm and again I was just coughing and gasping for air. He then grabbed the back of my head and pushed it back down into the mattress so that my face was forward and he bit my left shoulder and I struggled to get my head to the side so that I could breathe and get air in, and at that time he came from my right-hand side and pushed his ear - his tongue into my ear, and all his body weight was now on my legs and my arms were free and he moved down my body and bit my butt cheek and at this time I began to - because I could speak, I began to say like, “No, stop, please, Ben, stop,” just repeating “No” and “Stop” as much as I could. I also was trying to fight him off by - my arms are free so I’m trying to from behind push his head to stop him from biting me and I was also trying to wriggle my legs around but his kind of whole body weight was on them so it was quite difficult and just kept repeating, “No” and, “Stop” and just - just kept pushing and eventually I did - he let go and I kind of got free and crawled off the bed into the bathroom which is just next to where my bed was, and just sat on the tiles and at this point I’m looking back into the bedroom and kind of how the bedroom is arranged is that there’s the bathroom door here and the bed and then the exit so him sitting up on the bed is kind of directly in between me and - like I can’t leave the room, I can’t leave the bathroom or the room without going past him basically. So he’s sitting up in the bed and I’m sitting on the floor on the tiles and I just started to cry and just kind of had a bit of a panic attack, I think, I was just so - I was in so much shock and kind of just struggling to breathe and I think asphyxiation and just, yeah, just started to really cry...”^[8]

18. Ms B said that she did not say anything to the applicant when he put his penis into her vagina, or when he put his finger into her anus, because she could not speak. When the applicant put his penis into her vagina, he had simultaneously forced her face into the pillow so that she could not speak. At the time when he inserted his finger into her anus the applicant was choking Ms B, and she was not able to speak. She pulled her body as hard as she was able away from the applicant, and “thrashed”^[9] about to try to get away from him, but he had his full weight on her and she could move very little.
19. When Ms B was in the bathroom the applicant was situated between her and the door, blocking her exit. Ms B said that when the applicant told her to return to the bed, she did so, fearing that, if she did not, he may become angry and violent. She “crawled” back to the bed and got into it. The applicant whispered to her “I know you don’t want to have sex but I just can’t help myself”.^[10]
20. Ms B was very frightened. She grabbed her mobile phone, which she had earlier placed by the bed and, positioning herself so that the applicant could not see the phone, she sent a message to her friend Olivia asking for help. The text message exchange, commencing at 2:58am on 20 October 2019, was in evidence as Ex A. Ms B’s messages included the following:

“Help I didn’t want this”

“And I need to get out of this situation”

“I need help”

“Please”

“God”

“I’ve just had the worst experiences”

“OMG this is so stressful”

“I feel like I’m going to vomit”

21. Olivia arranged that she would call Ms B, pretending that she urgently needed her assistance, as a ruse to allow Ms B to get out of her apartment in what Ms B thought might be a non-confrontational way that would not risk angering the applicant or cause him to “be violent again”.^[11] The phone call was received and Ms B explained to the applicant that she had to leave and help her friend. Although he expressed his intention to stay behind in her apartment Ms B managed to cajole the applicant into leaving with her. They left the apartment and Ms B walked directly to a car that she had ordered after the exchange with Olivia. She got into the car and went to Double Bay to meet Olivia.
22. After Ms B drove away the applicant sent her another text message, to which she did not respond, which contained an image of his apartment block, saying “My apartment... for when life is less stressful”.^[12]
23. Ms B arrived in Double Bay. As soon as she saw Olivia she burst into tears, telling her that she had been assaulted, that it was without her consent, and that she had been choked and bitten. The two women went to Olivia’s home where Ms B showered and went to bed.
24. The next morning Ms B was due to start her shift at the Bar at 11:00am. When she arrived her manager, Ms M was there with her girlfriend, Ms R. Ms B was visibly injured, and the women asked her what was wrong. She told them that one of the men from the group the previous night had gone home with her and become “very violent and out of control”. Ms R asked, “[s]o it wasn’t consensual?”; Ms B told her “[n]o”. Although Ms B told the jury that she could not remember her specific words, she said she told Ms R and Ms M that the applicant had choked and bitten her.
25. Using Ms B’s phone, Ms R composed a text message in Ms B’s presence that was sent to the applicant. It read:

“Hi I don’t know if you were fully with it last night but what happened was not consensual, you strangled me to near asphyxiation. I could not walk I had to crawl to the bathroom, I am physically bruised and am not ok. You came into my home and violated my personal space.

Please don’t ever contact me again.”^[13]

26. When the applicant responded “Holy shit. I’m sorry” the message was sent a second time, but with the words “Please don’t ever contact me again” highlighted.
27. After completing her shift at 11 o’clock on the evening of 20 October 2019 Ms B went with Ms R, Ms M and Olivia to a bar. Olivia persuaded Ms B that she should be seen by a doctor, and Ms B went to the Royal Prince Alfred Hospital, where she was seen by a sexual assault counsellor and doctor. She was examined, and her injuries were documented and photographed. Ms B and Olivia spent the next two nights with a friend who lived close to the Hospital, a measure Ms B understood had been deemed necessary because of concerns as to a head injury she had sustained.
28. When Ms B finally returned to her apartment, she removed the bloodstained bedclothes from her bed and put them aside with the nightclothes she had worn at the time of the incident, which were also bloodstained.
29. On 25 October 2019 Ms B was contacted by police, the hospital having referred the matter to them. The following day detectives attended Ms B’s apartment, collected the bloodied items, and took photographs of Ms B’s still visible injuries. She made a statement, and a second statement at a later date.
30. In cross-examination Ms B accepted that she had chatted with the applicant during the evening when he was a guest at the Bar, and had smiled at him from time to time, it being part of her role in customer service to smile at guests. She denied that she had “flirted” with him. She also denied that in saying to the applicant that she would not have sex with him when allowing the applicant to come to her home, she had contemplated and accepted the possibility of “kissing and cuddling”.^[14] She said:

“When I said to Benjamin the words, “I will not have sex with you” I was giving a clear indication that I didn’t want to have sex with him or engage in any sexual activity with him and it was my belief that when he agreed that he also was on the same page with me that I did not want to do that and as that was the conversation we exchanged and it was very clear, a clear adult conversation, that was, my understanding that he said he agreed and that we were on the same page.”^[15]

31. Nor did Ms B accept the suggestion that, when the applicant said to her during the drive to her apartment that she would “hate” [him] even more” later, he was raising an intention to have sex with her, an intention that, by not responding to his comment, she signalled acceptance of. She accepted that she had not repeated her refusal to have sex with the applicant that night, observing that she did not think it was necessary to repeat herself over and over, as she had been very clear in stating that her wish was only to sleep. Ms B denied that anything that had occurred was consensual, or that it was prefaced by mutual touching and kissing.
32. She was challenged about the precise words she had used when describing what had happened to others and responded that she did not recall exact words used by her in 2019. She told the court that her conversations with others on 20 October 2019 and the events of that day were a “bit of a blur”.^[16] She later described the incident as “the worst thing that’s ever happened to me in my life” and she had told others about what was an “overwhelmingly emotional”^[17] event in her own way.^[18]
33. The next witness called in the Crown case was Ms B’s friend Olivia. Olivia told the jury that, on the night of 19 October 2022 she had been working at a venue very close to the Bar and, on finishing her shift at 11:00pm, went into the Bar to ask Ms B if she would go out with her that night. Ms B had refused, saying she was tired and wanted to go home. Olivia went to a bar in Double Bay. She later received the text messages from Ms B that were before the jury as Ex. A.
34. Soon after Ms B arrived in Double Bay and, when she got out of the car that had brought her there, Olivia saw that “she was uncontrollably shaking and crying” to an extent that Olivia found “scary”.^[19] They travelled together to Olivia’s home. During the drive Ms B was “shaking and crying”.^[20]
35. Ms B had been reluctant to talk about what had happened to her, and they had eventually gone to sleep. The next morning Olivia could see that Ms B was still shaken. She also observed “lots of little red dots” on Ms B’s cheeks, and just under both eyes. Ms B also had what was clearly a bite mark on her shoulder and buttock. Olivia again asked her friend what had happened. Ms B, distraught, told her that the applicant had gone home with her. Olivia could not recall the detail of what was said although she remembered Ms B saying that the applicant had “strangled her to the point where she could not breathe”.^[21] Olivia observed her friend to be “terrified and nervous and upset, very shaky”.^[22]
36. Both women had to work that day, although they met up after work. Ms B was still very shaken, and Olivia suggested that she go to hospital to be examined. They went to the Royal Prince Alfred where Ms B was examined.
37. Ms R gave evidence of having seen Ms B when Ms B arrived at the Bar on the morning of 20 October 2019. Ms R observed Ms B was not her usual self; she seemed to be “hiding herself” and the capillaries on her face were red and raised. When Ms R, who is a Registered Nurse, saw Ms B more closely, she noted that the capillaries on Ms B’s face, in her eyes, and in her ears, had all burst, and her lips were purple. Ms R asked Ms B what had caused the injuries; Ms B seemed distressed and anxious. However,

“[...] She eventually divulged that this guy that had come into the bar the night before had strangled her and had raped her. Someone who was not known to her, but was a friend of a friend. And after this rape and strangulation, she couldn’t walk. She had to crawl to her bathroom to get away from him...”^[23]

38. Ms R said that Ms B was anxious and shaky, her voice was “warbly”, she “was visibly distraught, upset [...] and couldn’t believe what had happened to her”.^[24] Ms R recalled being told that the guy had given Ms B a lot of attention during the evening, which Ms B had tried to brush off, and had been waiting for her when she left work. He had asked to share a ride with her, told her he needed a place to crash for the night and, on being allowed to enter the apartment with Ms B, had raped and strangled her.
39. Ms R said that she had first been asked to remember what Ms B had said to her on 29 January 2021. In cross-examination she said she was not sure of the exact terms of what had been said on 20 October 2019 between her and Ms B about this incident, and had paraphrased what was said.
40. Ms M was the owner of the Bar and Ms B’s manager in 2019. She had been at the Bar on the evening of 19 October 2019, but had left at about 9:00pm, leaving Ms B as the Manager in charge of the Bar and other staff. Before she finished for the night, a friend of hers came into the Bar with a group and took some tables at the back of the venue. Ms B was responsible for serving the group.
41. The following day Ms M was at the Bar when Ms B arrived for work. She saw that she:

“...had a lot of red spots on her face, covering her entire face. She was quite bruised around her neck, and she looked like she was – she looked like she had been crying, and she looked like she also hadn’t slept very well. She had quite bad bags under her eyes”.^[25]

42. Ms M asked Ms B what had happened and, although she needed to “gently coax”^[26] her account from her, Ms B told her that she had been sexually assaulted. Ms M stated that she could not remember the specific phrases used, although she did recall Ms B saying that she had told the man she would not have sex with him that night, and that he had choked her so that she could neither breathe nor say no.
43. Two days later Ms M spoke to the friend that brought the applicant to the Bar on 19 October 2019 and told him that the applicant had hurt a staff member.
44. Rahel Goldman had known the applicant as a friend for about 2 and a half years as at October 2019. It was she, together with her husband, who took the applicant to the Bar on the evening of 19 October 2019. Previously they had been out to lunch and other bars, eating and drinking, and Ms Goldman acknowledged being well affected by alcohol. During the course of the evening at the Bar Ms Goldman saw that the applicant was flirting with Ms B and, although she said that waitstaff had to behave in a certain way to customers and she “was not entirely sure”, her “gut feeling” ^[27] was that Ms B was flirting with the applicant.
45. Ms Goldman left the Bar at about 11:00pm. She later became aware from her husband of extreme injuries caused to a staff member at the Bar by the applicant. She sent the latter several text messages on the issue, which, together with messages exchanged in the early hours of 20 October 2019, were before the jury as Ex. C.
46. The first relevant message was sent by the applicant to Ms Goldman at 1:07am on 20 October 2019, and consisted of three “drooling emojis”. He responded to Ms Goldman’s query at 1:18am “Great success?” with a photograph he took of himself with both thumbs up, a message “Yep”, and a further message with another 3 drooling emojis.
47. At 12:57pm on 20 October 2019, by which time the applicant had received the text messages from Ms B’s phone extracted at [20] and [25] above, the applicant sent a message reading:

“Holy shit.. turns out I made her feel unsafe and am now a perp male cliché. Hrm. Super disappointed in myself”.^[28]

48. The following messages were exchanged:^[29]

Time	Sender	Message Content
13:03pm	Goldman	How did you make her feel unsafe?
13:04pm	Goldman [? sic]	We talked it out and I need to get my life back under control.
13:04pm	Elsworth	Heavy foreplay. Didn’t get clear consent.
13:05pm	Goldman	Holy shit..
13:05pm	Goldman	What did she say?
13:08pm	Elsworth	So, we didn’t go further last night, because she was visibly upset, then we were talking it out, then she got a call and had to go get her ex out of trouble. This morning she messaged saying that I’d been too aggressive, without consent, and violated the safety of her home and not to contact her again.
13:09pm	Goldman	This is bad.
13:09pm	Goldman	This is real fucking bad.
13:17pm	Elsworth	While she consented to the foreplay, she didn’t consent to the style thereof
13:17pm	Elsworth	Like, it wasn’t just a “no I’m not into that” as I’ve had before..
13:20pm	Elsworth	It’s that line of like, reading the moment and explicit consent. And the various types and moments of consent throughout a hook-up
13:21pm	Elsworth	Mostly, it just sucks to have made someone feel unsafe
13:23pm	Elsworth	Reading back through the messages, just to be clear here.. I got consent for kissing and touch, which is all that happened. It’s just that while we were doing that, I choked her, which she’s said she didn’t consent to.. which was apparent in the moment.
13:23pm	Elsworth	We stopped as soon as that happened.

49. Ms Goldman went on to ask the applicant to “be very honest” with her and tell her if “anything else happened last night”. The applicant responded, “[n]ope, only what I described above”. Ms Goldman then asked, “[h]ow is it possible that [Ms B] is swollen and black and blue?”. After some further messages about a telephone discussion the applicant asserted:

“There was no rape. There was sexual violence, when she said stop, we stopped and more. The bruises are because I’m strong and went too far”.^[30]

50. The doctor who examined Ms B in the early hours of 21 October 2019 was Dr Charles Lee. Dr Lee is a highly qualified forensic clinician who had been working at the Royal Prince Alfred Hospital as a Visiting Medical Officer in sexual assault medicine for 10 years as at 2019.
51. Ms B gave Dr Lee a history, which he recorded about an hour afterwards. The doctor said in cross-examination that the history was recorded most likely in his words, rather than those of Ms B, as he had not used quotation marks in the narrative. Dr Lee recorded that Ms B had arrived at her apartment with the applicant at about 2:00am the previous day. She said that she had told the man no to sex several times, but he persisted. He penetrated her vagina with his penis for several minutes, and put a finger in her anus. Both acts caused pain. Ms B said he had put his arm about her neck, causing her difficulty in breathing and frightening her. His arm went over her mouth forcing her teeth into her lips. The man bit Ms B on her left shoulder and right buttock, causing pain. He pressed her forcibly into her bed and she had been unable to get up. When giving her account of events to Dr Lee Ms B was tearful.
52. On examination Dr Lee noted a red-blue bruise on Ms B’s left shoulder, that was about 2 centimetres long and tender to the touch. On the inner right buttock were “two carved red-blue marks” linear in shape and concave to the centre, towards each other. The bruising was 3 centimetres by 4 centimetres and tender. There was also a scratch in the same area. The shoulder and buttock bruises were consistent with bite marks. On Ms B’s face Dr Lee saw multiple small pinpoint marks, particularly to the left side of the face, between the eye and ear and on the eyelid. These marks were petechial haemorrhages, which Dr Lee described as “quite dramatic and marked”.^[31] There was also bruising and redness to Ms B’s inner lip.
53. The doctor observed that the petechiae did not show clearly in the photographs he took of Ms B’s injuries, which became Ex. D, despite their pronounced appearance to the naked eye. He was concerned about them because they indicated that there may have been significant pressure applied to Ms B’s neck. The fact that the haemorrhaging was more marked on the left side than the right was consistent with pressure applied to one side of the neck that had interfered with normal function, indicative of strangulation.
54. Forensic swabs were obtained from the high vaginal canal, the vicinity of the cervix (the endocervix), and other areas of the vagina, internally and externally. Dr Lee confirmed in cross-examination that either a penis or a finger could touch the high vagina from which the swab was taken. He said that he would not expect to see vaginal injury following penetration which was sudden, or where the woman had not been aroused; to the contrary, it would be surprising if injury was observable.
55. The swabs obtained by Dr Lee were later examined by a forensic biologist, Ms Wedervang. Ms Wedervang also had reference DNA samples from Ms B and the applicant. Neither semen nor spermatozoa were detected on the high vaginal or endocervical swabs, but DNA consistent with the applicant was located on the endocervical swab. The source of the DNA recovered from the high cervix could not be identified.
56. Evidence was given of the arrest of the applicant on 28 October 2019. He took part in an interview with detectives, an electronic recording of which was played to the jury as Ex. J. He told the interviewing officers that he asked Ms B if he could come back to her place and she had agreed, although “[i]t was evident from our conversations that sex wasn’t part of the evening however, well penetrative sex wasn’t to be part of the evening...”,^[32] which he said he understood. He claimed however that he and Ms B kissed, and kissing had led to foreplay. He said:

“Um, I started getting dominant in the foreplay, she didn’t respond. She then struggled out and said, no. And it was a very big reaction. Admittedly, the foreplay was very heavy including choking and biting.”^[33]

57. He said they had begun to talk about what had happened when her phone had rung, and Ms B said that she needed to leave to help a friend.
58. The applicant said that he had had “loads” to drink and was intoxicated that evening. He said that, being intoxicated, after kissing there followed:

“[...] we were holding each other. Got into bed to sort of go to sleep/continue. Um, that was kissing, me going to go down on her, um, and as part of that, um, I have a strong kink so, um, I think while being too intoxicated I would have put too much pressure on her as part of the foreplay was also biting her.”^[34]

59. He continued:

“But sort of the struggle of that foreplay and her pushing off would suggest that at some point she’s said, no and stop. Um, and we did. Um, yeah.”^[35]

60. The applicant said that he did not have an exact memory of the sequence of events, but had no memory of penile-vaginal penetration occurring. He said Ms B did not indicate that she wanted to be choked by him. The applicant said his usual practice was to discuss with a potential sexual partner whether that person enjoyed “dominating sex” but he had not done so with Ms B, and she had not known of his wish to choke and bite her prior to those things occurring. He said:

“[...] Um, until there was a crescendo moment and well not, you know, affectively it’s not, not even not reading the room, it’s like mate, don’t go that hard on the first night with someone. It’s pretty, it’s pretty simple. Um, but, yeah.”^[36]

61. He acknowledged that alcohol had impaired his ability to “read the room”.^[37]
62. The applicant said that there had been no response when he kissed, “nuzzled”, and fondled Ms B, but there was a reaction from her when he bit her, began to perform oral sex on her, and simultaneously choked her. It was then that Ms B tried to push him away and struggled against him. His memory of the exact events was not clear, presenting instead as a series of “snap images” due to his state of intoxication,^[38] but he said:

“[...] I may have used a digit as part of oral sex. Um, but that’s not a clear memory.”^[39]

63. Later the applicant said:

“I don’t know if I did or didn’t penetrate her with a digit, um, but that was the crescendo moment, that was, that was when it all stopped.”^[40]

64. The applicant said that he had not stopped earlier when Ms B displayed a “pain reaction” as she had not said no or physically pushed him off.^[41] He observed that although he had not been consciously restraining her, he was significantly larger than Ms B and may have been holding her arms or shoulders down. Because he was substantially bigger than Ms B the applicant conceded that he “could’ve placed excess pressure on her neck”. Because of his intoxication and failure to “read the room” he had “unnaturally rough sex” with Ms B.^[42]
65. The applicant said that he did not remember inserting his penis into Ms B’s vagina, or digitally penetrating her anus.
66. The Crown case closed.
67. The applicant both gave and called evidence before the jury.
68. When he gave his evidence on 30 March 2021 the applicant was aged 38 years. He was asked about his “first love”, a woman to whom he was married at the age of 27 years. He described having “fairly normal” sex with his wife, with occasional “rougher foreplay”.^[43] It was the applicant who introduced the “rougher” activities into his marriage, although he said those activities did not include choking his wife. He and his wife had discussed these activities prior to engaging in them.
69. Following his separation from his wife the applicant said he entered into a relationship with a woman who “enjoyed” being “dominated” and he described some of the practices in which they engaged, including choking his partner and, he thought, biting. The applicant said that he and his partner had discussed and “eased into” these more unconventional activities.^[44] He was asked about other partners, including a current partner [as at March 2021] and described choking and other conduct with them, always after having discussed the activities beforehand.
70. With Ms B the applicant, when asked about the text messages he exchanged with Ms Goldman, acknowledged not having obtained “[p]roactive verbalised consent before that style of foreplay”.^[45] He claimed that Ms B had participated in mutual touching, telling the jury:

“I mean, we'd been flirting all night at [the Bar], we'd swapped numbers at[the Bar], I'd been invited back into the bar by [Ms B], I was invited back to [Ms B’s] home, I was invited into [Ms B’s] bed, we kissed, we hooked - she responded when - she kissed me back enthusiastically, she was touching, caressing, hugging me throughout the course of the build up of that foreplay. She was present and engaged in it.”^[46]

71. He conceded that Ms B had not, however, consented to “the heavy foreplay”. The applicant said that he had been referring to “heavy foreplay” when he sent the message to Ms Goldman stating that “[t]here was no rape. There was sexual violence”. He said that “sexual violence” was activity “[m]ore towards consensual”,^[47] and that for him “heavy foreplay” was part of consensual sex. The applicant agreed that Ms B had made clear that “sex wasn’t part of the evening”, and “we’re not going to have sex tonight”, but said that he understood that to refer to penile-vaginal penetration.^[48]
72. Despite Ms B’s clear statement about sex, the applicant said that he thought they had a “connection” and, as to what might follow, he told the jury:

“That might be going back to her place to have drinks, as we had alluded to that, in terms of having more drinks. I wasn't sure whether it would be that we would just go back and talk, I wasn't sure whether it would be that we would go back and kiss, or have foreplay. The only thing that I knew was that she had to work early in the morning and that she didn't want to have penetrative sex.”^[49]

73. He said that there was a minute or two of touching or kissing before he “started getting dominant in the foreplay”. The applicant said that Ms B did not respond and did not say “no” or “stop”^[50] until seconds later when she began to struggle, and he stopped.
74. In evidence in chief the applicant was taken through the answers he gave to police in his interview with investigating officers and asked to explain or expand upon them. With respect to his concession to police that he may have inserted a finger or fingers into Ms B’s vagina when performing cunnilingus on her he said this was his usual practice, although he had been too intoxicated to have a clear recollection of events or their sequence.^[51]
75. He insisted, however, and in contrast to what he had said to the police, that his intoxication would have had “little” effect on his ability to “perceive signals”.^[52] He went on to describe having one hand on Ms B’s neck choking her, and one moving towards her vagina.^[53]
76. Of his plea to AOABH the applicant said that he accepted that Ms B had not consented to him biting and choking her, causing injuries to her.
77. In cross-examination the applicant asserted that he regarded cunnilingus and digital penetration of a woman’s vagina as “foreplay”. He said that, when Ms B told him she would not have sex with him, he did not regard that as including putting his tongue in her vagina, or inserting his fingers into her vagina or anus, but understood it as a prohibition only against penile-vaginal penetration. He conceded, however, that he did not ask Ms B about those activities or obtain her consent. He stated in cross-examination that he:

“... had a clear memory of using a finger as part of oral sex, but not a clear memory as in for the definition, legal definition, of penetration. It is quite different to the lay definition of penetration.”^[54]

[.....]

“I think on the balance of evidence, it's kind of clear that I did put my finger in her vagina, but it was certainly part of what was otherwise consensual foreplay.”^[55]

78. The applicant also called evidence from past sexual partners. Ms Kolupoti told the jury that she and the applicant had engaged in various practices during sex, following requests made prior to intercourse, or if discussed during intercourse, to ensure that both were “comfortable” with the proposed activity. Ms Kolupoti said the applicant had never pursued sexual activity that she was not interested in.
79. The applicant’s former wife said that he was a kind and calm person who was respectful in his conduct with women. He had never pursued any sexual activity with her that was painful, or unwanted. Another partner, Ms Mol, described her sexual relationship with the applicant as “experimental and kinky”, but always consensual.
80. Another former sexual partner, Ms Juventin, said that the applicant had never made her feel uncomfortable during sex, as did the applicant’s partner at the time of trial, Ms Vincent Billing.
81. Professor Johann Duflou, forensic pathologist, was also called to give evidence, telling the jury that the level of force required to cause petechial haemorrhaging and bruising varied. Dr Duflou referred to the choke hold in which Ms B was placed by the applicant as a “carotid sleeper” and opined that such a hold would not be expected to cause breathing difficulties without speedy loss of consciousness, within 5 to 10 seconds. Injury to the neck would frequently be observed from such a hold.

The Application to this Court

82. If granted leave, the applicant argues, by ground 1, that the verdict of guilty returned with respect to count 2 is unreasonable, and inconsistent with those returned against counts 3 and 4; and, by ground 2, that there was error by the trial judge in the exclusion of evidence pursuant to s 293 of the Criminal Procedure Act. I am unpersuaded by either ground and, whilst I would grant leave to appeal, I would dismiss the appeal, for the reasons that follow.

Ground 1

83. There are two aspects to this proposed ground: that the jury’s verdict was unreasonable; and that it is inconsistent with the verdicts returned against counts 3 and 4.
84. As to the former, the principles applicable to a claim of this nature were enunciated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493; [1994] HCA 63 (per Mason CJ, Deane, Dawson and Toohey JJ), as follows:

“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).”

85. A ground raising a complaint of inconsistent verdicts is to be resolved in accordance with the test expressed by the High Court in MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348 at 366; [1996] HCA 35 (quoting from R v Stone (Court of Criminal Appeal (UK), Devlin J, 13 December 1954, unrep) with approval):

“[The appellant] 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.”

86. The test is one of logic and reasonableness.
87. The applicant argues that the differing verdicts are unreasonable and unreconcilable. He submits that the verdicts of not guilty with respect to counts 3 and 4 can only be explained by a conclusion that the jury must have rejected Ms B as a witness of truth and, on that basis, the only possible verdict that could have been rationally returned to count 2 was also a verdict of not guilty. He argues that there are “at least six” reasons for the jury to have rejected Ms B’s evidence, among them, that she gave contradictory accounts of her level of alcohol consumption; that she gave inconsistent accounts of her understanding of the applicant’s level of interest in her relevant to two different points in the evening; that her account of allowing him to sleep at her apartment without contemplating sex was implausible; that her complaint was reluctant and initially related only to the choking; and that the physical injuries could not have been inflicted as the complainant deposed they had been.
88. None of these arguments, all of which were before the jury for it to assess, are persuasive.
89. The evidence of Ms B’s alcohol consumption was of peripheral significance in circumstances where, whatever it may have been, there was no suggestion that she was adversely affected by alcohol. Ms B told the jury that she was not drinking on the evening of 19 October 2019, as she was working. She later conceded that she may have had a nip of spirits at the start of the evening, as it was customary for the staff to gather at the commencement of a shift and have one drink of that nature together.
90. Whilst the applicant asserted that Ms B had joined his table for drinks during the evening, Ms B deposed that, since staff were frequently importuned to join customers for drinks when working, the practice was to accept the “drink”, but to substitute water for alcohol. She thought that she may have done that on this evening. Regardless, it was never suggested to Ms B that she was intoxicated, or that intoxication affected her capacity to observe and recall events. Her sobriety is to be contrasted with the applicant’s state of high intoxication.
91. The question of Ms B’s understanding of the level of interest the applicant displayed in her at various stages of the evening is also a matter of no significance. Her evidence was that she knew that he had been paying attention to her, and that he was flirting with her. She was clear in her testimony that, whilst she thought he was interested in her, she was not interested in him, explaining that staff were required to smile at and be friendly with all customers. She denied flirting with him and the only witness other than the applicant who suggested that she was or may have been, the applicant’s friend Ms Goldman, observed that this could have been no more than the sort of friendliness to a customer typically expected of bar staff.
92. The applicant’s assertion of implausibility in the complainant’s account of having allowed him to spend the night at her apartment without any intention of engaging in sexual activity should be rejected. It may be based upon a stereotypical assumption as to how women should conduct themselves.
93. On the complainant’s evidence, evidence which is entirely consistent with the record of text messages exchanged between she and the applicant, the applicant initiated and then persistently and rather obtusely pursued Ms B on the night of 19 October 2019, despite the clearly unenthusiastic character of her responses. Her conduct in allowing the applicant into her apartment must be understood in light of the whole of the circumstances.
94. There was both an age and a power differential between Ms B and the applicant that put her at a significant disadvantage. Ms B was only a little more than half the applicant’s age; it might be inferred given that significant difference in their ages, that she had less worldly experience than he did. Working at the Bar, part of Ms B’s duties was to be pleasant and friendly to customers and to ensure that they enjoyed themselves. In this instance, the applicant was not just a customer; he was a member of a group with a connection to Ms B’s employer, and she felt a particular responsibility to ensure that her boss’ friends enjoyed themselves. This placed the much younger Ms B in a difficult position where the power was the applicant’s: in another setting she may have felt able to reject his advances in a frank and assertive way. In the context of her employment, she clearly felt that was not possible.
95. That she allowed the applicant to accompany her to her home having laid down the clear rule that there would be no sex, is not to be wondered at in all the circumstances. Ms B had tried to put the applicant off politely and, as she said in her evidence, in a way that was non-confrontational, that would not make him angry – with humour, with claims of tiredness, with assertions that she had to work the next day. None of those subtle methods of rejecting his advances had been effective, no doubt because the extremely intoxicated applicant had failed to “read the room”, as he put it to police and as the jury may have thought.
96. When a man that she did not feel able to antagonise – because of his relationship to her employer – would not be put off, Ms B gave in to his persistent and repeated requests to go home with her. She stated clearly that there would be no sex, a statement the applicant accepted was made. In those circumstances, there is nothing implausible or incredible in her evidence that she allowed him to come to her home, and sleep in her bed. After all, she understood that nothing beyond sleeping would occur; she was not to know that the applicant would disregard her clear stricture against sex. To accept that, in allowing those limited events to occur, Ms B must have wanted sex is to fall into the very assumptions that doubtless led the applicant to commit the crimes he has been convicted of. Consent to one thing – the applicant sleeping at her home – should not be read or understood as consent to another – sexual activity with him. One is quite distinct from the other.
97. The jury was well entitled to reject – as would I – the applicant’s assertion that he did not understand that Ms B’s refusal to “sex” had only been a reference to penile-vaginal penetration. The applicant is plainly a well-educated individual who has lived in major cities of the world and worked in a managerial position. His claim that he did not think any activity beyond penile-vaginal penetration was “sex” was disingenuous at best.
98. The applicant next argues that the manner of the complaint made by Ms B must cast doubt upon its legitimacy. That argument also rests upon a false assumption about the way a woman who has been sexually assaulted must or should behave. If one sets aside stereotypical assumptions, it was well open to the jury to conclude that everything about Ms B’s complaint supported its credibility. She was distressed, diffident, reluctant to speak out against a man with a connection to her employer, but always clear in her complaint that nothing that occurred had been done with her consent.
99. As to the expert evidence, nothing in the evidence concerning the injuries occasioned to Ms B established that they could not have occurred as she had deposed. The expert evidence raised matters for the jury to consider, but was not determinative.
100. In the applicant’s trial, the jury had the advantage not only of having seen and heard the evidence of Ms B, but also of having seen and heard the evidence of the applicant, together with his account to police of the relevant events in an interview. The jury was well placed to assess the evidence of the complainant and to determine whether all or part of it should be accepted as reliable to the very high criminal standard. In making that assessment, it was for the jury to determine what aspects of the evidence were significant. As Beech Jones CJ at CL observed in AJ v R [2022] NSWCCA 136, at [102] – [104]:

“At the core of the jury’s function in deciding “contested factual questions” is the assessment of the credibility of a witness on the basis of what the jury has seen and heard in the context of the trial (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37]; “Pell”). Pell reiterated that the function and approach of the jury in making that assessment is very different to that of this Court in determining whether the jury’s verdict was “unreasonable”. At a practical level, this is reflected in the observation in Pell that it would only be an exceptional case in which this Court would need to view the video recording of a witness’s evidence to determine this ground of appeal (at [36]). At a broader level, Pell referred to the above passage from M v The Queen as reflecting the “functional or ‘constitutional’ demarcation between the province of the jury and [an intermediate appellate court]” (at [38]). Ultimately, Pell explained this Court’s role as follows (at [39]):

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (emphasis added)

The reference to “a case such as the present” in this passage is to a case where the principal evidence against an accused person is given by a complainant. In this case, that certainly includes SS; ie, this Court’s assessment proceeds on the basis that the jury found her evidence to be credible and reliable.

These references to the “special significance” role of the jury, including the advantages it enjoyed in seeing and hearing witnesses, are of particular significance to this matter. The reference in the above passage from Pell to considering “inconsistencies, discrepancies, or other inadequacy; or in light of other evidence” must be read with the statement in M v The Queen that those matters be “such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”. Put another way, an assessment that the “evidence lacks credibility for reasons which are not explained by the manner in which it was given” is necessarily witness and trial dependent.”

101. The “six” reasons to doubt Ms B’s evidence were all matters argued before the jury; plainly the jury accepted Ms B’s evidence to the very high criminal standard with respect to count 2. In my assessment it was well open to the jury to reach that conclusion. Her evidence was, in my opinion, compelling, and well supported the verdict returned with respect to ground 2.
102. That the jury did not reach the same conclusion with respect to counts 3 and 4 does not mean that the jury necessarily found Ms B to be a dishonest or unreliable witness.
103. To the contrary, there is a very clear, obvious and rational distinction to be drawn between the evidence in support of count 2, and that relevant to counts 3 and 4 and it is reasonable to conclude that the reason for the differing verdicts is found in that distinction. The distinction is the applicant’s admission, tentatively given to police and in evidence in chief at trial, and firmly stated in cross-examination, that he digitally penetrated Ms B’s vagina, the very conduct relied upon for count 2, and that he did so at a time in which he was engaged in violent acts he acknowledged Ms B had not consented to.
104. The applicant argued before this Court that it was not open to the jury to rely upon his admission in support of count 2, since his account of the circumstances that surrounded the commission of the act did not accord with Ms B’s account. That argument overlooks or traverses the principle that it is always open to a jury to accept part but not all of a witness’ evidence. A direction to this affect is given to every jury in New South Wales and was given to the jury in the applicant’s trial :

“Of course, you may well decide not to rely on evidence of a particular witness if it appeared to you that the witness was not giving evidence honestly, but quite apart from questions of truthfulness, you should bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation or errors in a witness’s recall of events or a witness’s inability to accurately describe what it is he or she saw, heard or did.

When you come to making an assessment of the evidence of witnesses, you should bear in mind that you do not have to accept everything that a witness said or reject everything that a witness said. It is open to you to conclude that you would not accept a particular witness at all as to anything that witness has said, but equally, it is open to you to accept part of the evidence and reject other parts of that witness’s evidence.

In making your assessment of witnesses, you are not obliged to confine yourself to looking at the evidence of a given witness in isolation. You are entitled to weigh all of the evidence together in arriving at the factual determinations that you make. The question of credibility or reliability of the evidence of the witnesses from whom you have heard is a question of fact and is therefore a question for you alone to determine.”^[56]

105. An almost identical argument to that made here by the applicant was advanced in Attwater v R; Maris v R [2021] NSWCCA 17, with Mr Maris arguing that it was not open to the jury to accept the inculpatory part of his account of an episode of sexual intercourse – that it occurred; but not the exculpatory portion – that it was with consent. This Court (constituted by Bathurst CJ, Davies J and Wilson J) rejected that proposition, at [363] – [368]:

“Although Maris submitted to this Court that it was not open to the jury to accept the inculpatory part of what he told the police and reject the exculpatory part of it, there being no rational basis to draw a distinction, that submission is contrary to both the legal directions the jury were properly given, and to the likely life experience that the jurors were asked to bring to bear in their deliberations.

During the course of the summing up, Fullerton J correctly told the jurors that it was open to them to accept part of what a witness had to say and reject part. The same general principle applies even more so to an untested account given by an accused person to a police officer in the course of interview. The jury was not obliged to either accept as true or reject as false or unreliable the whole of the accounts given by Maris to police. To do so would be contrary to life experience, which would readily suggest to individual jurors that people can be accurate and inaccurate, truthful and untruthful, in the course of a single conversation, or in all that is said about a single topic.

What Maris – and Attwater – said to police was open to be assessed in light of the whole of the evidence. [...].

The jury were entitled to take a more nuanced approach to the assessment of what the applicants told police than either a wholesale acceptance or a wholesale rejection of their respective accounts. It was open to the jury to accept those parts of Maris’ (and Attwater’s) accounts that were against interest, since it is unlikely as a matter of common sense that an individual would fabricate a statement to his or her disadvantage. By contrast, it is likely, or at least possible, that a person in danger of facing criminal penalty for some act might give an untrue account of events, to his or her advantage. Jurors would see such an occurrence in the course of day to day life no less often than the phenomena is observed in the criminal courts.

On that basis, and having regard to the expert and other evidence and its significance, set out above in relation to Attwater, it was well open to the jury to accept Maris’ admission that he had placed his penis in Ms Daley’s mouth at or shortly after the time when Attwater “fisted” her, but to reject his claims as to Ms Daley “wanting” that act to occur.

The verdict returned by the jury with respect to Maris for this count was well open to it.”

106. The proposition must also be rejected here. It was open to the jury to accept the applicant’s concession that he had digitally penetrated Ms B’s vagina, as Ms B said he had, but reject his account of the circumstances in which it occurred. His admission was capable of corroborating Ms B’s evidence about count 2, providing additional evidence supportive of a verdict of guilty with respect to that count, which did not apply to the remaining counts. Further, it is not without significance that, at the time Ms B said the act of digital penetration occurred, she had been lying in her bed, with her face averted from the applicant and her body turned away, ostensibly asleep. The jury may well have concluded that there was no room for doubt as to the absence of consent, and the applicant’s knowledge of the lack of consent or recklessness to it.
107. That a jury might look for additional evidence before returning a verdict of guilty should not be seen as surprising, or as a basis for concern as to the legitimacy of differing verdicts. In this case its members were cautioned many, many times about the obligation on the Crown to prove its case to the very high criminal standard of beyond reasonable doubt. It is reasonable that a cautious jury facing that difficult and onerous task might look for evidence independent of the complainant, and find it in the applicant’s admission to digital penetration, albeit in circumstances that did not accord with those the complainant said applied.
108. Rather than suggesting compromise or inconsistency, the jury’s approach bespeaks cautious and careful consideration of the whole of the evidence, and the assiduous application of legal direction to fact. The verdict returned to count 2 was neither inconsistent with those returned for counts 3 and 4, nor unavailable on the evidence. For my part, having assessed the whole of the evidence that was before the jury, I conclude that it was well open to the jury to be satisfied of the applicant’s guilt to the criminal standard: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [58]; SKA v The Queen (2011) 243 CLR 400; 2011 HCA 13 at [405] – [406].
109. This ground should be dismissed.

Ground 2

110. By this proposed ground the applicant complains that he was wrongly precluded from calling evidence concerning a prior sexual assault Ms B had mentioned to the applicant. He wished to lead evidence of:

(1) Ms B’s statement to police that she had suffered from Post Traumatic Stress Disorder (“PTSD”) since an incident that had occurred when she was aged 15 years;

(2) Her reference to having PTSD when she was in her bathroom following the assault;

(3) Text messages that the applicant had sent to Ms Goldman in which he referred to Ms B as having been “triggered” by something in her history;

(4) The applicant’s assertions about this to police in his interview; and

(5) The applicant’s assertion that Ms B had told him that she had engaged in sexual conduct with others to “escape” something, inferentially the past traumatic sexual assault.

111. On 15 March 2021 the applicant made application to the trial judge for leave to admit the evidence pursuant to [then] s 293(4)(a) of the Criminal Procedure Act 1986 (NSW)^[57] and cross-examine Ms B on the subject. The trial judge refused that leave, giving his reasons on 19 March 2021. His Honour concluded that the evidence did not satisfy the temporal requirement in s 293(4)(a)(i). He did not accept that the evidence formed part of a set of events connected to the allegations, or that it was part of a continuum of Ms B’s sexual experience.
112. Section 293 was in these terms at the material time:

“293 Admissibility of evidence relating to sexual experience

(1) This section applies to proceedings in respect of a prescribed sexual offence.

(2) Evidence relating to the sexual reputation of the complainant is inadmissible.

(3) Evidence that discloses or implies—

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or
(b) has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4) Subsection (3) does not apply—

(a) if the evidence—

(i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and
(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,
(c) if—

(i) the accused person is alleged to have had sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and
(ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,

(d) if the evidence is relevant to—

(i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or
(ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,

(e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),
(f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,
and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

(5) A witness must not be asked—

(a) to give evidence that is inadmissible under subsection (2) or (3), or
(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.

(6) If the court is satisfied—

(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period—

(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or
(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and

(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,
the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.

(7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.

(8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.

(9) (Repealed)”

113. Section 293 (and the current s 294CB) is an exclusionary rule which makes inadmissible:

(1) evidence that discloses or implies that a complainant has had or may have had sexual experience or a lack of sexual experience; or

(2) evidence that discloses or implies that a complainant has or may have taken part or not taken part in sexual activity.

114. The provision and its predecessors were intended by the Parliament to operate widely, for the protection of sexual assault complainants. As Bathurst CJ said in Jackmain (a pseudonym) v R (2020) 102 NSWLR 857; 284 A Crim R 483; [2020] NSWCCA 150, at [15], “...it was designed to exclude to a significant degree cross-examination concerning a complainant’s sexual activity or experience with only limited exceptions”.
115. Those limited exceptions to the exclusionary effect of s 293(3) are found in s 293(4) and s 293(6). Evidence that would otherwise be caught by s 293(3) can be given at trial if the evidence:

(1) is of the complainant’s sexual experience or lack of sexual experience, or sexual activity or lack of sexual activity, at or about the time of the commission of the alleged offence; and

(2) forms part of a connected set of circumstances in which the alleged offence was committed; and

(3) the probative value of the evidence outweighs any “distress, humiliation or embarrassment” that the complainant might suffer as a result of the admission of the evidence.

116. The applicant contends that the evidence fell within the limited exceptions to the exclusionary rule and should have been admitted. In support of that argument he relies upon a majority decision of this Court in Decision Restricted [2021] NSWCCA 51. In that case two judges of this Court, Leeming JA and Walton J, concluded that statements about sexual experience made by the complainant shortly before the alleged sexual assault occurred concerned her sexual experience as it was at that time, and the statements were connected to the alleged offences. The majority, Adamson J dissenting, held that the evidence fell within the exception and should have been admitted.
117. The judgment of the majority in Decision Restricted sits uncomfortably, with respect, with the earlier decision of a full bench of this Court in Jackmain wherein events of four or five years before the alleged offence were held not to satisfy the temporal requirement of s 293(4)(a)(i). The Court gave some emphasis at [190] – [191] to what had been said by the Attorney-General in introducing an earlier version of s 293:

“[...] Nothing is said to have occurred within 4 or 5 years of the commission of the alleged prescribed sexual offences in 2009, and if the last incident is put to one side, nothing is said to have occurred within a decade of the alleged prescribed sexual offences in 2014. On no view could the temporal requirement of “at or about the time of” in the first limb be satisfied.

This point was emphasised by the Attorney-General, introducing the bill in 1981:

‘The key words here are ‘at or about the time’ of the alleged offence. However he cannot inquire or bring evidence about the complainant’s sexual behaviour with other persons last week, or last month, or last year. He may ask only about such behaviour ‘at or about’ the time he is alleged to have committed the offence, and where the events involve connected circumstances” (Hansard, Legislative Assembly, 18 March 1981, p 4764).’”

118. To argue that an experience of five years prior to the commission of the relevant offence can be regarded as having occurred “at or about the time of” the incident on 20 October 2019 because it was part of Ms B’s continuing sexual experience is to torture both the word and intention of the Parliament. I would not regard that construction as being an available one.
119. The “sexual experience” and “sexual activity”, or lack thereof, with which the section is concerned cannot in my opinion encompass a complainant’s memory of some past experience or activity, thus making evidence of the experience or activity admissible because the memory is held at or about the time of the charged the act, or is connected to the charged act because past experience informed present conduct, as the applicant appears to argue.
120. The applicant relies on GEH v The Queen [2012] NSWCCA 150; 228 A Crim R 32, and Decision Restricted to make the argument; those decisions, however, ought not be taken out of their particular contexts. It is the text of the legislation that takes primacy and with which the trial judge was obliged to comply in determining the question of the admissibility of the disputed evidence. In interpreting and applying s 293 (or s 294CB) the clear purpose of the legislature in introducing the provision’s predecessor, and maintaining it virtually unchanged through many legislative amendments, must be kept in mind. As this Court said in R v White (1989) 18 NSWLR 332, at 340:

“The evident purpose of the legislation is to limit the circumstances in which complainants in sexual assault cases will have to endure having what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court.”

121. That purpose will not be met, or compliance with the legislation achieved, by applying the provision in the broad way argued for by the applicant.
122. If the discussions in GEH and in Decision Restricted are applied to the evidence the applicant contends should have been admitted, neither point to the incorrectness of the decision of the trial judge.
123. In GEH at [63] – [65] Harrison J drew a distinction between “sexual experience” and “sexual activity”, and the issue is material here. In the conversation that the applicant said Ms B had with him, she supposedly recounted an activity of five years before. Such evidence could not meet the temporal element in s 293(4)(a)(ii), and is inadmissible. GEH provides no comfort for the applicant’s contention.
124. As for Decision Restricted, the obvious point of distinction between the circumstances of that matter and the present application is that what Ms B may have said about an incident that had occurred five years previously was said after the alleged sexual offences occurred, not before it, as in Decision Restricted. The conversation could have had no bearing on the commission of the sexual act by the applicant, or upon the applicant’s knowledge or belief as to whether or not Ms B consented. It was, in short, not relevant to the facts in issue before the tribunal of fact and not admissible pursuant to s 55 of the Evidence Act 1995 (NSW), even as s 293 also excluded it.
125. To the extent that it may have been relevant to explain, as the applicant contends, the “big reaction” Ms B demonstrated to being choked and digitally penetrated, that argument fails to acknowledge that Ms B’s reaction, as reported by the applicant to police and in evidence, occurred at about the time he was inflicting actual bodily harm upon her and impeding her breathing, conduct which he acknowledged, by his plea of guilty, that Ms B had never agreed to, and which caused her injury. The applicant’s plea to AOABH was a complete explanation for the complainant’s reaction, to the extent that an explanation alternative to Ms B struggling against unwanted sexual activity could benefit the applicant.
126. Further, and even if the above analysis is wrong, the limited probative value of the evidence could not have outweighed the distress, humiliation, or embarrassment Ms B might suffer at being examined about it in evidence. That her distress in having the experience called to mind was considerable follows from what the applicant himself contended: that it explained her “big reaction” to what the applicant claimed was consensual digital intercourse, albeit at about the same time as a physical assault the applicant acknowledged was not consensual.
127. The trial judge concluded that the evidence did not fall within the exceptions to s 293(3) and was inadmissible. Whether the analysis of the admissibility of the evidence is based upon its relevance, or upon the extent to which it fell within the exceptions to s 293(3), or both, as was well open, the conclusion of the trial judge was correct. The evidence of what had happened to Ms B five years previously, or of what she said about it, did not fall within the exception to s 293(3); nor was it relevant to the issues the jury had to decide. There was no error in refusing to permit the applicant to adduce the evidence concerning that matter.
128. This ground should be dismissed.

The Consequences of Dismissing the Appeal

129. Following his conviction for count 2, the applicant was sentenced for that crime and the offence to which he had pleaded guilty, AOABH, on 15 October 2021. A 17 month conditional release order pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was imposed with respect to the offence of AOABH; a sentence of 3 years imprisonment to date from 15 October 2021 was imposed with respect to count 2. Having found special circumstances, the trial judge fixed the non-parole period of that sentence at 18 months imprisonment. Unsurprisingly, there is no appeal against sentence.
130. However, it is necessary for this Court to vary the sentencing order, as the applicant was granted bail following sentencing. He was admitted to bail on 15 October 2021, and has been at liberty whilst awaiting the determination of his application to this Court. The date of the commencement of the sentence of imprisonment and consequential dates must be varied to take account of the period the applicant has spent at liberty.

Conclusion

131. I propose the following orders:

(1) Leave is granted to appeal;

(2) The appeal is dismissed;

(3) The date upon which the sentence imposed upon the applicant on 15 October 2021 is to commence is varied, such that the sentence of 3 years imprisonment is to commence on the date upon which the applicant enters custody pursuant to warrant. The non-parole period of 18 months imprisonment will expire 18 months after that date.

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Amendments

18 January 2023 - coversheet - corrected dates of orders and decision.

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^[1] AB226:18
^[2] AB227:35-42
^[3] AB200:36
^[4] AB200:47
^[5] AB279:17
^[6] AB200:48
^[7] AB201:1-8
^[8] AB202:8-203:20
^[9] AB216:27
^[10] AB203:40-50
^[11] AB204:21
^[12] AB789, Ex C
^[13] AB789
^[14] AB232:45
^[15] AB232:47-233:04
^[16] AB271:26
^[17] AB279:49
^[18] AB279:35
^[19] AB286:44
^[20] AB295:21
^[21] AB288:27
^[22] AB288:29
^[23] AB300:48-301:02
^[24] AB301:34
^[25] AB311:4-7
^[26] AB311:33
^[27] AB331:47
^[28] AB791; Ex C
^[29] AB792
^[30] AB793; Ex. C
^[31] AB359:27
^[32] AB1018 - 1019
^[33] AB1019
^[34] AB1021
^[35] AB1021, Q&A21
^[36] AB1030, Q&A92
^[37] AB1030, Q&A96 of Ex. E
^[38] AB1037, Q&A167 of Ex. E
^[39] AB1036, Q&A157 of Ex. E
^[40] AB1039, Q&A184
^[41] AB1039, Q&A189 – 193 of Ex E
^[42] AB1041, Q&A216 of Ex. E
^[43] AB424:36
^[44] AB427:11
^[45] AB443:30
^[46] AB444:19-24
^[47] AB447:17
^[48] AB459
^[49] AB460:1-6
^[50] AB460 - 461
^[51] AB474 - 475
^[52] AB475:42 - 47
^[53] AB476:40
^[54] AB515:20-22
^[55] AB516:11-13
^[56] AB657
^[57] The relevant provision is now s 294CB of the same Act as amended.