Tuuholoaki v R [2024] NSWCCA 135 (26 July 2024)

Last Updated: 5 August 2024

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Tuuholoaki v R
Medium Neutral Citation:	[2024] NSWCCA 135
Hearing Date(s):	12 July 2024
Decision Date:	26 July 2024
Before:	Adamson JA at [1]; Wilson J at [278]; Faulkner J at [280]
Decision:	(1) Grant leave to appeal on ground 1. (2) Refuse leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to allow ground 2 as a ground of appeal. (3) Otherwise dismiss the appeal.
Catchwords:	CRIME — appeals — appeal against conviction — miscarriage of justice — whether direction to jury about elements of s 61HE of the Crimes Act 1900 (NSW) erroneous — elements of proving applicant was reckless as to whether complainant consented to sexual intercourse— distinction between advertent and inadvertent recklessness — distinction between subjective and objective recklessness CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of attempted and actual sexual intercourse with complainant without her consent — where complainant was intoxicated — whether complainant lacked credibility — whether complainant’s evidence unreliable — whether Crown excluded applicant’s version beyond reasonable doubt — whether applicant knew the complainant was not consenting to sexual intercourse
Legislation Cited:	Crimes Act 1900 (NSW), ss 61D, 61HE, 61I, 61K, 344A Criminal Appeal Act 1912 (NSW), s 5 Criminal Procedure Act 1986 (NSW), ss 292, 292A, 292B, 292C, 292E Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases Cited:	ARS v R [2011] NSWCCA 266 Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80 La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52 Lee v R [2023] NSWCCA 203 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Haughian (1985) 80 Cr App R 334 R v Henning (Court of Criminal Appeal (NSW), 11 May 1990, unreported) R v Kitchener (1993) 29 NSWLR 696 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Morgan [1975] UKHL 3; [1976] AC 182 R v Tolmie (1995) 37 NSWLR 660 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Z (a pseudonym) v R [2022] NSWCCA 8
Texts Cited:	Smith and Hogan, Criminal Law (10th ed, 2002)
Category:	Principal judgment
Parties:	Matthew Soane Sameul Tuuholoaki (Applicant) Rex (Respondent)
Representation:	Counsel: A Cook SC / H Thomas-Dubler (Applicant) G Newton SC (Respondent) Solicitors: Nyman Gibson Miralis (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2022/57185
Publication Restriction:	Publication of names and any information or material that may lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A
Decision under appeal:
Court or Tribunal:	District Court
Jurisdiction:	Criminal
Date of Decision:	20 October 2023
Before:	Herbert DCJ
File Number(s):	2022/57185

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 26 February 2022, the complainant (who was 19 years old) attended the Albion Hotel in Parramatta (the hotel) with her friend, SD. Matthew Tuuholoaki (the applicant) was working as a security guard at the hotel that evening. The complainant consumed several alcoholic drinks and gave evidence that she felt increasingly intoxicated over the course of the night.

When she was on the dance floor, the complainant got into an altercation with another woman and was removed from the hotel by security. Once outside, CCTV footage showed the complainant arguing with security and the other woman. The applicant held her back before ushering her down the street, away from the hotel, where she became separated from SD, who was accompanied by another guard.

The complainant’s evidence was that she felt extremely drunk and the applicant took her behind an electricity box on the street, started to kiss her and attempted to have (count 1) and did have (count 3) penile-vaginal intercourse with her. The complainant also gave evidence that she thought she gave him oral sex (count 2). After, the applicant gave the complainant a $50 note and they went back to the hotel where the complainant told SD, her friend Joshua and the hotel security what had happened. The police were called and the complainant showed them where the offending occurred, underwent a forensic examination and gave a formal statement the next day.

The applicant’s version was that the complainant started kissing him and did not appear intoxicated, and that he did not know that she was not consenting to sexual intercourse.

The applicant was charged and, following a trial by jury over which Herbert DCJ (the trial judge) presided, ultimately convicted of counts 1 and 3 and acquitted of count 2. He was sentenced to an aggregate sentence of 2 years and 7 months imprisonment.

The applicant sought leave to appeal against his convictions of counts 1 and 3 on the grounds that:

(1) the verdicts were unreasonable and could not be supported by the evidence; and

(2) a miscarriage of justice was caused by the trial judge’s directions to the jury on how the Crown could prove inadvertent recklessness.

In support of ground 1, the applicant submitted that significant issues undermined the complainant’s credibility and reliability such that the Crown could not exclude the applicant’s version as a reasonable possibility, and even if the applicant’s version was rejected, there was reasonable doubt as to whether the Crown had proved the elements of the offences.

In ground 2, the applicant challenged the trial judge’s direction as to proof of his knowledge that the complainant was not consenting to sexual intercourse pursuant to s 61HE(3) of the Crimes Act 1900 (NSW). The applicant submitted, in relation to proof of knowledge by being reckless as to whether the complainant consented, that there was a distinction between advertent and inadvertent recklessness and that the trial judge’s direction erroneously invited the jury to convict him on a purely inadvertent state of mind (that he did not even think about whether the complainant consented).

The Court held (Adamson JA, Wilson and Faulkner JJ agreeing), granting leave to appeal on ground 1 but dismissing that ground and refusing leave to appeal on ground 2:

Ground 1: alleged unreasonable verdict

(1) Having reviewed all of the evidence, it was open to the jury to find the applicant guilty of counts 1 and 3. There is no doubt of his guilt on these counts: at [242] (Adamson JA).

(2) It was open to the jury to accept the complainant’s version that she felt intoxicated and that her fears when she was alone with the applicant deprived her of her powers of overt resistance. It was open to the jury to reject the applicant’s version as not reasonably possible, given the significant inconsistencies in his evidence: at [229]-[232], [234], [237] (Adamson JA).

(3) The complainant’s evidence of counts 1 and 3 was cogent and consistent with the circumstances. Her description of what occurred was credible and corroborated by the forensic examination, her evident distress when she returned to the hotel, her immediate complaint to those at the hotel and her account to police that evening. None of the matters raised by the applicant was sufficient to gainsay the jury’s assessment of the complainant as a witness of truth as to the elements of the offence: at [237], [239]-[240] (Adamson JA).

Ground 2: alleged misdirection concerning consent

(4) Leave to appeal on ground 2 ought be refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW): at [276] (Adamson JA).

(5) A jury must be directed that recklessness is subjective, in that it requires consideration of what was in the accused’s mind at the time of the offending. The relevant distinction is not between advertent and inadvertent recklessness, but between subjective and objective recklessness: at [267] (Adamson JA).

Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80, applied.

(6) The trial judge’s task when directing a jury is to explain as simply as possible so much of the law as the jury needs to know to decide the case before them. In comparison, in an appellate court’s consideration of an area of substantive law in the course of its reasons for judgment, the court has room to draw and explore distinctions, such as that between advertent and inadvertent recklessness. It is not necessary and may be detrimental to trouble a jury with this distinction: at [275] (Adamson JA).

La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52, applied.

R v Kitchener (1993) 29 NSWLR 696; R v Tolmie (1995) 37 NSWLR 660; Lee v R [2023] NSWCCA 203, considered.

JUDGMENT

1. ADAMSON JA: Matthew Tuuholoaki (the applicant) was convicted of attempted penile vaginal sexual intercourse with KJ (the complainant) without her consent, knowing that she was not consenting contrary to ss 61I and 344A(1) of the Crimes Act 1900 (NSW) (count 1) and having penile vaginal sexual intercourse with the complainant without her consent, knowing that she was not consenting contrary to s 61I of the Crimes Act (count 3), following a trial by jury over which Herbert DCJ (the trial judge) presided. The applicant was also charged with having sexual intercourse (fellatio) with the complainant without her consent, knowing that she was not consenting (count 2) but was acquitted of this count. The applicant seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against his convictions of counts 1 and 3.
2. The trial commenced on 10 October 2023. The summing up was completed on Friday 20 October 2023. Later that day, the jury returned verdicts of guilty on counts 1 and 3 and not guilty on count 2. On 11 December 2023, the trial judge sentenced the applicant to an aggregate sentence of 2 years and 7 months imprisonment commencing on 17 October 2023, with a non-parole period of 1 year and 9 months. There is no challenge to the sentence.
3. The proposed grounds of appeal are:

1 The verdicts on counts 1 and 3 are unreasonable and cannot be supported by the evidence.

2 A miscarriage of justice was caused by the trial judge’s directions to the jury on how the Crown could prove inadvertent recklessness.

4. In addition to the leave requirement in s 5(1)(b) of the Criminal Appeal Act, leave to raise ground 2 is required by r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) as the applicant’s trial counsel did not object to the directions given by the trial judge which are now challenged.
5. An unreasonable verdict ground requires the Court to consider the whole of the evidence in the trial in order to determine whether it was reasonably open to the jury, as the tribunal of fact, to be satisfied beyond reasonable doubt of the applicant’s guilt on the counts of which he was convicted: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.
6. For this reason, I will summarise the evidence and set out the way in which the Crown case was put at trial.

The trial

The Crown case

7. The Crown case on counts 1 and 3 was that early in the morning of 27 February 2022 the applicant, who was a security guard at the Albion Hotel in Parramatta (the hotel), evicted the complainant from the hotel for being involved in an altercation, and attempted to have and did have sexual intercourse with her at a location near the hotel, without her consent and knowing that she did not consent.

The location where the offences allegedly occurred

8. The complainant attended the hotel with her friend, SD, on the evening of 26 February 2022. The hotel is on the south-west corner of George and Harris Streets in Parramatta. There were, at the time of the offending, at least 14 CCTV cameras positioned throughout the hotel and in the internal car park.
9. Hassall Street is parallel to George Street and runs off Harris Street in a westerly direction. On Hassall Street, near the corner of Harris Street, there is an electricity box which the complainant identified as the location where the offending occurred (Exhibit A). The electricity box is about 240m (a three-minute walk) from the hotel. On the eastern side of Harris Street (across the street from the hotel), across an expanse of grass (the park), is an interrupted continuation of Hassall Street to the east and a car park known as the James Ruse Water Car Park where the complainant recalled that SD originally parked her car before she and the complainant went to the hotel. There is also a skate park in that area.

The CCTV compilation

10. The Crown tendered a compilation of the footage from the CCTV cameras to depict relevant activity inside and outside the hotel between 12.59am and 2.14am on 27 February 2022 (Exhibit D).

The events of 26 and 27 February 2022 and the circumstances of the offending

The morning of Saturday 26 February 2022

11. In February 2022, the complainant was 19 years old. She was 5 feet and 6 inches tall and, at that time, weighed 56.8kg. She lived in a suburb on the mid-north coast of New South Wales with her mother, her step-father, her nephew and her son, who was nine months old.
12. At about 5am on Saturday 26 February 2022, the complainant, her mother and her son left home for Sydney and arrived at the complainant’s father’s home at about 9am. At about 10.30am, they went out with other family members for breakfast. The complainant ate bacon and eggs on toast. At about midday, the complainant, her sister, her mother and her son went to a child’s birthday party near Mount Druitt, where they stayed for about two hours before returning to her father’s house.
13. The complainant’s mother gave evidence to similar effect, although her recollection was that when she left to go to her sister’s place where she was staying overnight, at 11.30am or 12pm, the complainant returned to her father’s house. The complainant’s mother recalled that the complainant was “very excited to be meeting up with her friends [from] school and going out for the night with them”.

The early evening of Saturday 26 February 2022

14. The complainant had arranged with SD (whom she had met at high school but who was a few years older than she was) to go to the hotel that night. SD’s evidence was that their sisters had been friends at school and through that connection she and the complainant became friends in 2021 after they had left school. After the complainant moved away from Sydney, she and SD kept in touch through social media.
15. Their plan was that the complainant would dress to go out at her father’s place, SD would pick her up and take her back to her place, where they would put make-up on and then SD would drive to the hotel. The complainant got ready to go out at about 5pm or 6pm and started drinking between 6.30pm and 7pm. She drank two Double Black Smirnoffs (a pre-mixed can of soda water and vodka) while she was at her father’s house and took the remaining cans with her, together with her bag for the night, to SD’s house. On the way to SD’s house, the complainant drank another two or three cans for the eight to ten minutes it took to get there. They spent about 20 to 30 minutes at SD’s house before leaving for the hotel in SD’s car. At about 8pm, SD parked the car in the James Ruse Water Car Park near the hotel.
16. SD recalled picking the complainant up from outside “[w]here she used to live”. The complainant had cans of Smirnoff Blacks as “pre-drinks” with her. SD could not recall precisely how many cans there were but said that there were “[n]ot more than ten, but not less than ... three” and the complainant was drinking “maybe two ... or three” in the car. SD identified, by reference to a map, where she parked the car near the hotel (beside the Robin Thomas Reserve). She and the complainant sat in the car for a while and talked. SD recalled that the complainant drank about another two cans of drink but could not recall whether she drank any. While they were talking, it started to rain. As they did not want to ruin their hair or make-up, SD moved her car to a laneway closer to the hotel. By this time, SD considered the complainant to be “a bit tipsy” because “she was talkative, maybe a little bit like slurry”.

The applicant’s role at the hotel

17. As at 27 February 2022, the applicant was 26 years old and was employed as a security officer by a company which was contracted to provide security services at the hotel. He had been working as a security guard at the hotel since 2018. The sign-on register for the hotel recorded that the applicant commenced work at the hotel on 26 February 2022 at 18.20 (6.20pm). According to Clint Lake, who was the security guard who was second-in-charge (to the head guard, Mohammed Amin Zanganeh) on duty that night, the applicant was responsible for the hotel’s beer garden area. Mr Lake was stationed at the entrance to the hotel with two other guards, Mr Zanganeh and Faave Semi Soe. In his evidence, Mr Zanganeh confirmed that he was the head security officer on duty at the hotel that evening.

The complainant’s arrival at the hotel

18. When they arrived at the hotel, the complainant recalled that she and SD went in through the side entrance and showed their “IDs” to security before going to the bar to buy another Double Black Smirnoff each (which the complainant considered was her fifth or sixth that evening). By this stage the complainant was “feeling a bit tipsy” but was “still, able to walk so [she] was fine to get in”. She assessed her scale of drunkenness as being “[a]bout a 4 to 5” out of 10.
19. Andrew Lynton, who was then the general manager of the hotel (but who was not present on the night in question), confirmed that the security guards conduct an assessment of level of intoxication of prospective patrons at the front door of the hotel. The assessment is “visual” and takes into account matters such as “speech, balance, [and] coordination”.
20. The complainant gave evidence that they took their drinks to the “pokies” and drank while they were playing. She recalled putting $100 into a poker machine called Golden Century and playing for about 25 to 30 minutes before returning to the bar to purchase another Double Black Smirnoff each (which the complainant estimated to be her seventh for the evening).
21. The complainant and SD then took their drinks to the outside area, where there was another bar and a few tables, stools and chairs. While they were out there, SD saw some of her friends (whom the complainant did not know). They spent the next half an hour or so talking with SD’s friends, before going to the dance floor. While on the dance floor, the complainant still had the drink which she had purchased earlier. By this stage, the complainant assessed her level of drunkenness as “[p]robably a seven”.
22. SD did not recall what time they arrived at the hotel but recalled that there were security guards out the front, one of whom was “somewhat Islander and one was Arab”. SD said that she and the complainant went to the bathroom before buying alcoholic drinks, after which they stayed “[m]ainly in the ... dance floor area”. SD recalled seeing two of her friends who joined them. SD said that she thought the complainant was drinking Vodka Red Bulls. SD assessed her own level of intoxication as “six or seven” by the time she got onto the dance floor.
23. In cross-examination, SD said that the complainant was drinking vodka mixers and that SD “was thinking about how drunk [the complainant] was during the night because [SD] remember[ed] it slightly annoying [her]”. SD was not counting the number of drinks that the complainant was drinking but she “was checking up and constantly thinking about how drunk she was”.

The first altercation on the dance floor at the hotel

24. The complainant recalled that while they were dancing, a security guard pulled her off the dance floor. He told her that a male had complained that she was harassing him and that they would review “the cameras”. He walked her out of the premises, past the toilets and into the hotel car park near the entrance to the hotel and told her that if the footage did not support the complaint she would be allowed back into the hotel. SD accompanied her outside. Another male security guard was present during this discussion. One of the guards stayed with the complainant while the other went to review the footage. The complainant remained outside for five to ten minutes before the security guard who had removed her from the dance floor informed her that he had reviewed the footage but could not see her harassing anyone. He told her that she was allowed to go back in but if it happened again she would be “kicked out”.
25. SD recalled this altercation which led to the complainant being “kicked out”. Although SD was not kicked out, she left the dance floor to stay with the complainant. SD gave evidence about the discussion which took place outside the hotel between herself, the complainant and the security guards:

“We were talking to the security guards out the front saying how we thought it was unfair that she got kicked out, she was just being like cause she was drunk a little bit or and we just thought it was unfair that she just got kicked out cause the guy found her annoying so they ended up letting us back in because they thought it was weird, cause we thought it was weird that we got kicked out yeah so we went back in.”

26. Zoe Robbins, who was an assistant manager on duty at the hotel on the night of 26-27 February 2022, recalled being out the front of the hotel, smoking a cigarette, at about 10pm or 11pm when she heard “a female patron who was upset that she had been asked to leave from the venue and she was claiming that she was being harassed by a male inside the venue”. Ms Robbins, whose recollection was “pretty hazy of that time”, thought that she told the female (who was the complainant) that she would review the footage. Ms Robbins judged the complainant’s level of intoxication to be “three out of ten ... on the tipsy side ... approaching intoxication”. Ms Robbins formed that view because she was “quite loud and boisterous ... very excitable ... a bit of aggression there as well ...”.
27. Elizabeth Loomes, who was also an assistant manager on duty at the hotel on the night of 26-27 February 2022, recalled receiving a call about a patron (the complainant) who claimed she was harassed on the dance floor. In cross-examination, Ms Loomes agreed that she had put in her statement to police dated 20 April 2022 that the complainant said to her, “[t]here was a guy on the floor, he tried grabbing me”.
28. In order to determine what had occurred on the dance floor, Ms Loomes was asked to review the hotel’s CCTV footage. She reviewed it with Ms Robbins, who “wanted to verify the story that [the complainant] was alleging”. Ms Loomes gave the following evidence of what the footage depicted of the complainant’s behaviour on the dance floor:

“Her behaviour, she was obviously dancing, jumping around, she was going up to multiple different patrons that were not part of her friend group, hugging them as they would walk away and that’s what I witnessed, and the patron in question that she said harassed her, she was hanging off him where he would walk away from her, put his arms behind his back and walk away and then she would walk up to him again and try and hang off him and dance with him again, and she, and then, that’s what I saw.”

29. Ms Loomes agreed in cross-examination that when she had watched the footage it was obvious that the version which the complainant had given to her about what had occurred on the dance floor (that the man was grabbing her) was not correct. After Ms Loomes had reviewed the footage, her general manager, Tenae Stowers, told her to give the complainant a warning and allow her back into the hotel. In cross-examination, Ms Loomes said that Ms Stowers had also said, “If the young woman was not showing any signs of intoxication she could return”. Ms Loomes agreed in cross-examination that the terms of the warning she gave the complainant were, “[w]e will be keeping an eye on you”.
30. Ms Loomes agreed that when police spoke to her at about 6am on Sunday 27 February 2022, she told them the complainant had “complained about the other man [on the dance floor] groping her” but that the CCTV footage showed the complainant “hanging off another man”.
31. Ms Stowers was rostered on as the general manager at the hotel on Saturday 26 February 2022. She was also the hotel’s licensee. Her shift was from 4pm until 2am. She recalled Ms Loomes coming into her office at about 10pm that evening and asking for her advice as a female patron had complained that a male had been harassing her on the dance floor. Ms Stowers and Ms Loomes then checked the CCTV footage together. Ms Stowers concluded that “the female who had made a complaint against the male at the time was actually the person who was harassing the other” and that the footage showed that she had “pushed him” and that he had not “instigat[ed] any contact with her before that”. In cross-examination, Ms Stowers agreed that she had said in her police statement dated 17 March 2022:

“After looking through we could see that the girl was the aggressor on the dancefloor. I can’t remember what happened. I just remembered concluding that the guy was in the right and she was in the wrong.”

32. Ms Stowers recalled telling Ms Loomes that, if the male against whom the complaint had been made was happy and the complainant was not showing signs of intoxication, they would give the complainant a “first and formal warning” in the presence of the head guard, Mr Zanganeh. Ms Stowers left the hotel at about midnight (despite being rostered to finish at 2am) as it was her last shift before going on maternity leave and “things were running smoothly at that point”.
33. Mr Zanganeh, who was at the front entrance of the hotel, became aware of the incident on the dance floor when he saw a woman (the complainant) and her friend (SD) being escorted out of the hotel by the applicant and Ms Loomes. According to Mr Zanganeh, the applicant told him that the complainant and SD were complaining that they were being harassed on the dance floor. Mr Zanganeh asked the two women to wait outside while “the cameras” were being checked and estimated that the incident took place at about 9pm.
34. At that point, Mr Zanganeh went to the manager’s office with Ms Loomes where Ms Stowers was. Mr Zanganeh observed Ms Loomes checking the footage from the dance floor but did not check it himself (as it was “not [his] job”). He then returned to the front entrance. According to Mr Zanganeh, Ms Loomes called him on the radio and told him that “she couldn’t see anyone harassing that female and what she saw, she was harassing someone so that was the opposite story”. Mr Zanganeh said that Ms Stowers, who by that time was at the front entrance with him, said to him, “Give them a warning. Give them a warning and let them back inside”. Mr Zanganeh said that he then told the complainant and SD, “You can go back inside. One girl is really not causing any trouble and behaving inside, you can go back inside. According to Mr Zanganeh, the complainant “seem[ed] happy to go back inside” and said, “[t]hanks” to him.
35. SD recalled returning to the dance floor as soon as they had been allowed back into the hotel.

The meeting with Joshua

36. Later, according to the complainant, she and SD went back to the bar to order another drink (the complainant could not recall what it was) and then went back to the outdoor area to chat with SD’s friends. While she was there, the complainant recognised a male, Joshua, whom she had met on Instagram. She messaged him and he confirmed that he was at the hotel. The complainant and SD joined Joshua at the table where he was sitting with his friends. They drank and talked together for about 45 minutes to an hour, during which time some of the “boys” bought drinks. A male bought two schooners of beer for the complainant and SD but as SD had moved away, the complainant drank both beers herself. The complainant assessed her drunkenness at the end of this period to be “about an eight” (out of ten).

The return to the dance floor and the second altercation

37. The complainant went back to the dance floor with Joshua (where SD was). The complainant said that, by that stage:

“I was beyond intoxicated at this point. I can barely remember from there. ... I could barely walk straight and everything was a bit hazy, I can’t really like everything was kind of just spinning around at this point.”

38. In cross-examination, the complainant agreed that her police statement dated 27 February 2022 recorded that she said:

“I remember being at the peak of my drunkenness at this stage and not having the best memory. This part of the night is hazy.”

39. While she was on the dance floor, the complainant recalled that she “bumped into another female”. The complainant’s evidence was:

“I think I was just too drunk and I was just dancing around and it just so happened I bumped into her.”

40. The woman “pushed [the complainant] back” and they “continued dancing for a bit ... [p]robably three minutes before [the complainant] bumped into her again”, at which point the woman “started getting aggressive” and “pushing and yelling”.
41. SD recalled this second altercation when she bumped into the complainant and the complainant then bumped into a short woman who appeared to be of Aboriginal descent, who became angry. This led to SD and the complainant being “kicked ... out again”. The short woman then made a comment to the complainant when they were outside the hotel before she left. SD recalled that the same three security guards who were outside the hotel when they arrived were still there.
42. Jacob Figueira was the duty manager at the hotel on 26-27 February 2022. His shift commenced at 11pm on Saturday night and finished at about 7am or 8am the following morning. He recalled that a “code red” was called on the radio at some time between 11pm and midnight. He went to the George Street exit at the beer garden. He saw “some females shouting and they were being pretty quarrelsome, upset and not listening to reason”, which was why he was “called to diffuse the situation and ask them to leave the venue”. When he arrived, he recalled that the applicant was already there. Mr Figueira told the women that “they were intoxicated and they had been in a[n] altercation with other females in the venue” and that he “had to ask them to leave, explaining that [he] had to think of the safety of everyone in the venue”. Once Mr Figueira had spoken to them, he left the beer garden.
43. Mr Figueira agreed that he noticed that the complainant was arguing with the applicant because she wanted to come back into the hotel. He considered the complainant to be “unbalanced” and not just because she was moving her arms but also because her speech was “slurred”. She was “shouting” and “irrational”. He observed two security guards take the two women outside the gate, at which point he “left it with them”. He agreed that by the time the guards took the two women down Harris Street away from the hotel, the two women “were in a lot calmer state” and “weren’t fighting against the security guards who were trying to take them away from the hotel”.

The complainant’s eviction from the hotel

44. This second altercation led to the security guards escorting the complainant and the other woman out of the premises. The complainant was told that “[they] had to leave because [they] got into an altercation” and that she “was too intoxicated to get back in”. Mr Lynton confirmed that it was a policy of the hotel that if two patrons engaged in an argument at the hotel, they would be required to leave.
45. When they were outside, the woman “kept butting so [the complainant] went back to her to go at her”. Both the woman and the complainant were held back by security guards.
46. In cross-examination, the complainant was shown CCTV footage of herself speaking with security guards on Harris Street after being removed from the hotel. She agreed that it depicted her “pushing away from security guards to go towards the girls [she was] arguing with ... to go and fight with those girls”.
47. Although the complainant did not recall the particular scene, she agreed that she “looked angry” and explained that this was because she was “confused as to why [she] was being kicked out ... [and] wanted an explanation ...”. The complainant agreed that the footage showed that the security guard with whom she was arguing was the applicant. She could not explain why she was angry with the applicant but agreed that she was “so mad and distraught that [she was] actually crying as [she] left to walk down Harris Street” and that it was “then that the security guard [the applicant] was comforting [her]”.
48. The complainant also agreed that the CCTV footage showed her and the applicant, who was by this point holding her hand, walking past the car park. She said that at that time she “probably had given up” on trying to go back and “argue with the girls from earlier on” and that instead she “probably was just trying to be let go of”.
49. From his position at the entrance to the hotel, Mr Lake could hear an argument coming from the direction of Harris Street. When he went to see what was going on, he saw two females “just arguing, trying to get at each other”. On one side of the argument there was a group of indigenous females and on the other there were two females, between 18 and 25 years, one Caucasian and blonde who was wearing a white dress (the complainant) and the other, Middle Eastern in appearance with dark hair (SD). The participants to each side of the argument were “yelling”. Mr Lake saw the applicant “holding one of the females [the complainant] back” and “[Mr Zanganeh] had the other female [SD]”. Mr Soe was “dealing with the other group of indigenous females”. Mr Lake observed Mr Zanganeh and the applicant walking with the complainant and SD along Harris Street, towards Macquarie Street. Mr Lake said that after things died down, “[w]e were just ushering our group [the complainant and SD] down to ... Macquarie Street” and he recalled the complainant “just screaming and ... trying to run back to the other party [the indigenous females]”. At this point, Mr Lake received a call on his radio about a “code red” and returned to the front door of the hotel. Before returning, he observed that the applicant was “[j]ust holding [the complainant]”. Mr Lake explained:

“... like obviously when we usher them it’s just we’ve got to hold them just to make sure they don’t get you know, back to what was happening.”

50. In cross-examination, Mr Lake agreed that “it was the correct thing” for [the applicant] to take the complainant away from the hotel. Mr Lake did not agree that the complainant was “unbalanced” as she was walking away from the hotel and said, “this female was walking fine and obviously trying to run back so I wouldn’t say she was unbalanced”. Mr Lake said that he could not come to a conclusion about the complainant’s level of intoxication when she left the hotel at that time.
51. Ms Robbins recalled seeing a disturbance outside the hotel between indigenous females and the complainant. She saw the applicant who “had the [complainant] in a bearhug from behind restraining her from attacking the other female patrons”. Ms Robbins said that “the fight broke up fairly quickly” and the indigenous women left up towards George Street and the complainant and her friend “were getting walked further along Harris Street”, at which point Ms Robbins went back to her duties inside the hotel.
52. Ms Robbins considered that the complainant’s “level of intoxication had definitely increased” from when she had seen her make the complaint about being harassed on the dance floor. She gave evidence that the complainant “was quite heavily intoxicated by [the time she was escorted from the hotel]”. Ms Robbins considered that her level of intoxication had “jumped straight up to a level 10”. When asked to explain her assessment, Ms Robbins said:

“She was inconsolable. She was being very erratic. She was kicking the air. She was screaming. She was screaming racial slurs. Yeah so it was quite obvious that her intox level had dramatically increased. ... she was thrashing, kicking, trying to get out of grip so that she could further attack these other females. ... It was quite feral, very unrestrained, very what’s the word I’m looking for, yeah, she was hysterically screaming, very, very loud screaming.”

53. In cross-examination, Ms Robbins agreed that she was 5-10m away from the complainant and the applicant when she observed them in Harris Street and that she would have had a better opportunity to assess the complainant’s intoxication when she was standing right next to the complainant when the complainant complained about being harassed on the dance floor.
54. Mr Zanganeh said that he was at the front door of the hotel when the applicant called him and Mr Lake on the radio about this second altercation. As a consequence of the call, they walked towards Harris Street where they saw the “same females” (the complainant and SD) “having a fight with another female” and “attacking the other female”. Mr Zanganeh could not recall what the other female looked like but recalled that the applicant was there too and that they (himself, Mr Lake and the applicant) “just got in the middle, between those two females and the other female”. Mr Zanganeh said that the other female “look[ed] calm, she didn’t want to fight”.
55. Mr Zanganeh said that, once the situation calmed:

“I spoke just to those two females, female 1, the Caucasian one she was still angry, she was very aggressive, like I couldn’t talk to her and I started speaking to the other female, female 2 the Middle Eastern looking one. She calmed down a little bit, she settled down and I started talking to her and I said Look we moved them towards the south Harris Street and I ask her how is [she] going home, like.”

56. Mr Zanganeh said that he could not recall how the applicant was holding the complainant and said, “he was just trying to stop her to girl fight because as I said she was going to fight, she was like physically was trying to push and walk past him to continue the fight and he was trying to stop her”.
57. When Mr Figueira made his way out to the front of the hotel, he saw an altercation between the females he had seen earlier in the beer garden and he saw Mr Lake and Mr Zanganeh “holding back those females from another group of females”. At that time they were “[j]ust on the driveway exit of the venue ... onto Harris Street”. He subsequently confirmed that, of the two exits from the hotel car park, he was at the driveway at the George Street end, rather than the one at the Harris Street end. Mr Figueira recalled that, shortly afterwards, the applicant arrived. The first female (the complainant) “did seem intoxicated ... was irrational, slurring her words, unbalanced ... trying to lunge towards the other group and walking around and screaming ... mainly profanities and threats towards the other group”. The other group “didn’t really need a lot of management [and] ... went along their way ... towards Parramatta River” in the direction of George Street.
58. Mr Figueira described what occurred once the other group had left:

“[The guards were doing] [n]othing but standing between them and the other party and ... talking to the females. I had issued at that point a 50 metre move along card and the guards were just chatting to them and trying to usher them down the street in the opposite direction of the females.”

59. He explained that a 50m move along card is “a card that we present to people that need to move away from the venue once they’ve been asked to leave, just for licensing reasons and RSA reasons”. After Mr Figueira had issued the card to the complainant and SD, he said that “the three guards were walking with female 1 and 2 down ... Harris Street”. He could only see as far as the end of the driveway (to the car park). Once he was satisfied that the altercation was over he went back inside the hotel.
60. Mr Lynton gave evidence that the “50m card”, which the hotel has access to through Liquor and Gaming, states that if a person is asked to leave, or is refused entry to, a licensed premises and they fail to quit, that person is required to move 50m from the boundary of the venue.

The departure of the complainant and SD from the hotel surrounds

61. SD recalled that two of the security guards “ended up escorting [SD and the complainant] away from [the hotel] completely.” According to SD, one of the security guards was “Arab” and the other was “Islander”.
62. SD said that her understanding was that the security guards were escorting them to her car so that they could go home and that they were walking “to where [SD] originally thought [her] car was”. The Arab security guard (Mr Zanganeh) was walking with SD ahead of the applicant who was walking with the complainant. When SD reached Macquarie Street, she and Mr Zanganeh crossed Harris Street and walked towards where she had originally parked her car as SD was “too drunk” and had “forgotten that [she had] actually moved it”. SD was cross-examined about walking down Harris Street with Mr Zanganeh. She denied that she spoke Farsi or Arabic but said that she could understand some Arabic. Although she accepted that it was possible that Mr Zanganeh spoke to her in Arabic as they were walking down Harris Street, she said that she did not think so.
63. Mr Zanganeh said, of their departure from the surrounds of the hotel:

“I spoke to [SD], I asked her how you’re getting home she said to me I parked my car down the road there was a parking down the road, she said to me I parked my car down the road and [the applicant] was with the female one [the complainant] and we started walking towards the parking, she asked me for the help to find the car and we start walking towards Harris Street south which is Macquarie Street. It’s like 20 metres down there Albion carpark.”

64. When Mr Zanganeh and SD reached the intersection of Harris Street and Macquarie Street, he noticed that the complainant and the applicant were behind him and “were together but not doing anything wrong, I couldn’t see anything wrong”. In cross-examination, Mr Zanganeh said that he did not see the complainant and the applicant any more after he had “left them around the traffic light”.
65. Mr Zanganeh said that he and SD walked across Harris Street at the traffic lights at the intersection with Macquarie Street “to the carpark to find the car”. He said:

“We went through the park it was a skate park and past the skate park there is a carpark. We went there and we tried to find the car, we couldn’t find the car ...

[SD] asked me to help her to find her car and I thought if we find the car she’s going to pick up the car and pick up her friend which she was with [the applicant] and they would go home.”

66. In cross-examination, Mr Zanganeh agreed that SD was friendlier to him as they were walking down Harris Street than she had been when they were outside the hotel. He agreed in cross-examination that SD had lifted up her shirt when she was going across Harris Street “to show him what was underneath” and that he saw her breasts but said that he had not looked at them. Mr Zanganeh said that he asked her to put her shirt down and that he remembered that when SD did this, she turned around to the applicant and the complainant. He denied knowing that SD was intoxicated.
67. SD was cross-examined about this as follows:

“Q. When you were walking down the street with the Arab security in front of [the complainant] and the other security guard, did the Arab security guard ask you to lift up your shirt towards [the complainant] and the other security guard?

A. I don’t think so, no.

Q. Is that what you actually did, did you actually lift up your shirt towards [the complainant] and the other security guard?

A. No. No.

Q. Is it possible?

A. No, yeah.”

The incident between SD and Mr Zanganeh

68. When SD and Mr Zanganeh were in the middle of the park, SD did “some sexual stuff to him”. SD said in evidence:

“I can’t really remember too well whether there was discussion or anything, but I ended up sucking his dick in the middle of it.”

69. At that point, Mr Zanganeh said to SD that she needed to go to the car. When they reached where SD thought that she had parked the car, she realised that it was not where the car was and they had to return in the direction of the hotel.
70. Mr Zanganeh denied that anything had happened in the park or that he and SD had spent any time there. He said:

“Nothing happened we just - I ask her what car she’s driving, she said to me it’s a Toyota Rav 4 and I went for a look around in the carpark and I couldn’t find the car.”

The prelude to the alleged offending conduct

71. The complainant said that after leaving the hotel with the applicant, they proceeded to walk along Harris Street towards Hassall Street and Macquarie Street. She understood that a security guard (who was the applicant) was walking behind her “to ensure that [she] didn’t turn around and go back to the female”. The complainant recalled that the applicant was “big build and short and he was Polynesian” but she could not recall whether he was the same security guard who had held her back. SD was also being “walked off by another security guard, walking ... up the same road ... [but] [o]n the opposite side [of Harris Street]”.
72. The complainant said that as they were walking, the applicant came up to the complainant “because [she] was upset and asking why [she] was kicked out, [she] didn’t understand”. The applicant “kept telling [her] to calm down and that [she] couldn’t go back in”. The complainant’s evidence was:

“He was coming up beside me now and he was trying to comfort me, as I was really distraught and upset because I had got kicked out. ... He just repeatedly kept telling me to calm down and then I asked him what Polynesian he was. He said he was Tongan and I told him I had a son that was also Tongan.”

73. In cross-examination the complainant said that she asked the applicant what kind of Polynesian he was because her son was Tongan and she “was curious”. She agreed that she used the words “Tongan baby daddy” and explained that that was the description for the child’s father. The complainant agreed that she “[p]robably” told the applicant that she was no longer together with her child’s father and explained:

“If I knew that was going to give consent for him to touch me I wouldn’t have said anything. It’s just small talk conversation.”

74. It was put to the complainant in cross-examination that she told the applicant the name of her child’s father, which she denied. She confirmed that the child’s father’s surname was [L]. It was also put to her that the child’s father lives in Auburn, to which she responded, “[n]o, he’s never lived in Auburn”.
75. By this time, the complainant could see that SD had walked towards and through the park across the street from the hotel with the security guard who had been accompanying her. When asked in cross-examination whether she called out to SD, “Where are you going, what are you doing?”, the complainant agreed that she “probably” said that although she was “[n]ot quite sure, but [she] would possibly have said that as [she] didn’t want to be left alone”. SD, who admitted at the trial that her recollection of the evening was not good, did not recall the complainant calling out to her.
76. In cross-examination it was put to the complainant that she had chosen to walk down Harris Street with the applicant in the following exchange:

“Q. So when you were walking down Harris Street with the Tongan security guard [the applicant] after you had stopped trying to go back to the Albion Hotel, that was something you did of your own free will. Is that correct?

A. Correct, but it’s not my job to walk away because I was told to walk away from the Albion Hotel. That’s his place of work where he should have walked back to after the 50 metres.

Q. You chose to walk with the Tongan security guard down Harris Street, didn’t you?

A. No, I didn’t.

Q. Did you move away from him at any stage as you were walking down Harris Street?

A. Onto the roadworks, no, I didn’t.

Q. Did you run away as you were walking down Harris Street?

A. No, that would be silly as I was extremely drunk and I probably would have fallen over.

Q. But you were able to walk though, weren’t you?

A. But how would - I’m not able to run.

Q. Did you shout out to [SD] to say ‘[SD], I don’t want to be on my own’?

A. No, that’s probably why I asked her where she was going. That’s an indication that I didn’t want to be left alone.”

77. When the complainant and the applicant reached Macquarie Street, he told her to follow him. The complainant’s evidence of her understanding of the reason he was walking with her at that point was:

“I honestly just thought it was for comfort at this point as I was really upset. I remember I was crying because I had got kicked out and I nearly got into a fight.”

78. The applicant, who was “less than a metre in front of [the complainant], leading the way”, then “led [the complainant] to an electrical box, one of the big green boxes, and there was grass around and a fence at the back of it”. When asked about her understanding of why he was asking her to follow him, the complainant said:

“I couldn’t remember at this point. I was honestly really drunk. I’d lost [SD], I didn’t have anyone else.”

79. Although there was a street light on the corner of Macquarie Street, the area around the electricity box was “dark”. When the applicant reached the electricity box, he said to the complainant, “come here” and she complied. She explained in her evidence:

“I was extremely drunk and I also didn’t want to feel overpowered by a security guard so I wasn’t going to run away at this point.”

The alleged offending conduct

80. The applicant then “pushed [the complainant] up against the green electrical box” and “put his chest on [her] and pulled [her] toward it”. She felt the electricity box on her back. He started to kiss her on the lips. The complainant did not want this to happen but “didn’t know what to do at that point”. At this point in her evidence, the complainant asked to have a break. The Court adjourned.
81. On her return, the questioning continued. The complainant explained what she was thinking when he started to kiss her:

“I just wanted him to stop ... I just wanted to get away as fast as possible. ... I knew that he had more strength than me, I was really drunk at this stage, if I tried pushing him off I’d just end up hurting myself more.”

82. After he had been kissing her for less than a minute, the applicant then “pulled down [her] bra and started touching [her] breasts”. He also pulled down her dress to “[j]ust above [her] belly”. When asked what she was doing while this occurred, the complainant gave the following evidence:

“I didn’t really do much besides standing there. I didn’t try kissing back, it wasn’t what I wanted to do.”

83. The applicant told her to turn around and bend over. She did as he asked. She said in evidence:

“I knew that he was a lot bigger than me and if I had run away at that point it’d just get me in more trouble, [I] didn’t know what to expect, I was worried for my life.”

84. When the complainant was facing the electricity box, the applicant pulled up her dress and “pulled [her] undies to the side”. She recalled him “trying to put his penis inside”. She said she “could just feel his penis trying to go into [her] and that was it, [she] didn’t really feel any pressure anywhere else.” She felt his penis on her vagina as “he was playing around with it” although it did not go into her vagina at that point. She said, “[h]e was trying to get it in, but it just wasn’t working” (count 1). She felt his penis against her vagina for “about a minute”. Neither the applicant nor the complainant said anything. The complainant explained:

“I was just extremely grossed out. I just didn’t know what to do at this time. ... I didn’t want him doing it to me.”

85. In cross-examination, the complainant agreed that she had said in her police statement dated 27 February 2022:

“I leaned on the electrical box. I could barely stand straight. If that wasn’t there to lean on, I would have fallen on my face.”

86. When asked whether anything else happened, the complainant said:

“I think that I gave him oral sex... I’m not sure about, I can’t remember.” (count 2)

87. The complainant refreshed her recollection of oral sex by reference to her police statement dated 27 February 2022 before giving evidence that she “can just recall it happening but [does not] remember positioning at all”. It happened before the applicant told her to lie down on the grass but after he had first tried to put his penis in her vagina when they were standing up. She had no recollection of how long the oral sex went for and did not want him to do it. The complainant accepted in cross-examination that she was “unsure about oral sex taking place”.
88. The applicant then told the complainant to lie on the grass, which she did. She explained in her evidence:

“I was drunk, I didn’t have the power in me to fight, extremely just really drunk at this point.”

89. The complainant was lying on her back as the applicant “braced himself on top of [her] ... completely over [her] body” and “put his penis inside [her] vagina” (count 3). Her underpants were “still pulled to the side at this point”. Her evidence was:

“He was in the missionary and he was having sex with me.”

90. The complainant could not recall how long his penis was inside her vagina. Her evidence was:

“I don’t recall much, I just remember it happening. It all happened so fast I’ve just kind of blocked it out and I don’t want to remember it.”

91. After the applicant had put his penis in the complainant’s vagina, the applicant said, “get up” and then “reached for his pocket and pulled a $50 note ... [and] put it in [her] hand.”. Neither the applicant nor the complainant said anything. The complainant took the note and put it in [her] bra”. She explained why she did this:

“I didn’t want to upset him. I didn’t know what to do at this point. I was drunk. I just wanted to get out of there ... I walked off and I walked back down to the Albion Hotel ... I’d fast walked off so I’m assuming that he was behind me ... I was still walking I just sped up my speed, I just wanted to get away from him at this point I didn’t want to be near him. ... I walked straight down to Albion Hotel ... I just remember crying and walking back.”

92. The complainant was cross-examined about the $50 as follows:

“Q. When he handed you $50 what did you think was the reason he handed you that amount of money?

A. To keep my mouth shut from what just happened.

Q. And did you think he was paying you for having sex?

A. No I think he was paying me to keep my mouth shut.

Q. That was something that made you upset feeling that he was paying you to keep your mouth shut, is that right?

A. No I was upset by what had happened and I was upset that he thought he could slap a band aid over it with money.”

The complainant’s complaint to SD

93. The complainant said in cross-examination that before she spoke to police she told SD that she had been raped. She could not recall where she was when she told SD.
94. SD saw the complainant as she and Mr Zanganeh neared the hotel on their way back from the park (she marked the location on Exhibit M, a map of the area surrounding the hotel). She described the complainant as looking “infuriated, ... worried, frustrated, like on edge”. According to SD, the complainant “said that the security guard that was with her had had sex with her and then gave her $50 to not say anything”. SD’s evidence was that the complainant had shown her the $50.
95. SD agreed in cross-examination that she was interviewed by Detective Senior Constable Christal Cowie and made a statement on 3 March 2022, in which she said:

“[The complainant] said that security guy was trying to have sex with me and paid me not to say anything. ... [The complainant] then pulled out a $50 note from her bra and waved it in the air. ... I said, ‘Oh my God, did he actually do something?’ ... [the complainant] said ‘Yeah, he tried to put it in but it didn’t fit.’”

96. Mr Zanganeh said that while he and SD were in the car park (near the park on the eastern side of Harris Street):

“The second female arrived and then she seems fine to me, she didn’t speak to me and I asked the second female if you are all good like can I leave you alone, I couldn’t find the car. She said yeah we are okay, you can go back.”

97. Mr Zanganeh agreed that when he saw the complainant she looked “unhappy” and only said that she seemed “fine” because he was “comparing her with ...15 minutes ago when she was in a fight, very aggressive, running, trying to fight. ... she was fine compared to 15 minutes ago”. He also said that she looked “sad” but that he did not know why she was sad because he did not ask her or talk to her. Mr Zanganeh denied that he heard the complainant say that she had just been raped or that the applicant had given her $50 to not say anything. Mr Zanganeh said that he left SD and the complainant in the skate park and he “went back to the carpark [of the hotel]”. He said that when he returned he saw the applicant and asked him whether he was all right and the applicant said that he was “fine”. Mr Zanganeh said that he did not ask him what had taken place with the complainant and that, at that stage, he was unaware that the complainant had made a complaint against the applicant.
98. In cross-examination, Mr Zanganeh said that after he left the park with SD, SD was talking to the complainant and he left them and walked back up to Harris Street, where he saw the applicant, who was on his own. He did not recall the applicant asking him whether he and SD had “do[ne] it”.

The complainant’s complaint to security guards at the hotel

99. The complainant’s evidence of what she did when she reached the hotel was:

“I stood out the front and I was really upset. I threw the $50 on the ground to the other security guards that were there and I said - I don’t remember word for word what I said but I pretty much was getting angry at the security guards and I said how could you hire someone that could possibly do this, these people are meant to protect people not rape them. ... I told them to check my transactions that I haven’t taken $50 out any ATM and I kept telling them to check my transactions.”

100. The complainant recalled that there were one or two security guards to whom she was speaking when she said these things.
101. In cross-examination the complainant was asked to explain her reference to checking her transactions:

“Q. Why was it important for you to ask them to check your transactions?

A. To say that - to prove that I hadn’t taken any money out of my account and that it was given to me by the security guard that is hired by the Albion Hotel.

Q. In your mind you were able to work out that that’s how you were going to prove that the $50 had been given to you, for the security guards to check your transactions, is that right?

A. Yes, there was no other way to prove it.”

102. SD’s evidence was that the complainant repeated what she had just told SD to the security guards at the entrance to the hotel. SD’s view was that the complainant was “definitely drunk”. SD agreed that she had told Detective Cowie in her statement of 3 March 2022:

“When we got to the Albion [the complainant] marched up to the really big Islander guard. I think he was the boss. He was nice to us earlier in the night.

103. SD heard the complainant say: “[t]hat security guard just raped me.”.
104. SD also gave evidence that when they reached the hotel, Mr Zanganeh asked SD not to say anything about what had transpired between them in the park. SD did not tell anyone about what had happened until she went to the mid-north coast in about late September 2023 (two weeks before the trial) and saw the complainant and told her. SD explained in her evidence that it was something which she was “partially consenting to” and that she did not want to make a “big deal about things that happen to [her], especially when [she thinks] it’s more about [the complainant]”.
105. Mr Lake recalled that some time after the complainant (whom Mr Lake consistently referred to as “the girl in the white dress”) had been escorted from the hotel, he saw her returning to the hotel through the car park. He said that “she did look annoyed or angry because we stopped her from getting back in”. She then said, “I’m going inside, one of your guards just raped me”. Mr Lake recalled taking her inside whereupon “she just dropped to the ground, just starting crying”. Mr Lake called a manager to come to deal with the situation.
106. Mr Soe (who had not previously seen the complainant that night) recalled that she came up to the guards at the entrance (where he was on duty with Mr Lake) and yelled that one of the guards had raped her. The complainant then went inside the hotel and saw the manager. Mr Soe did not have further contact with her after that. He agreed in cross-examination that he had told the police when giving a statement on 21 March 2022 that the complainant had said to him, “[f]ucking guards”, to which he had asked, “[w]hat are you talking about” and the complainant responded, “your guards raped me”.
107. Ms Robbins was called to the gaming room. When she arrived, she “saw the female patron was sitting on the ground crying hysterically waving around a $50 note”. She recalled the police arriving. Ms Robbins recalled the complainant saying that she had been raped and said that she had pointed to Mr Lake, which confused Ms Robbins as she had been with Mr Lake the whole night and “never lost sight of him”. Ms Robbins also said in cross-examination that the complainant said that the guard who had raped her had given her “$50 hush money”.
108. Mr Figueira saw the complainant again at the entrance to hotel next to the car park. At that time he was with Mr Soe. Mr Figueira’s impression was that she had not come through the car park. When asked to describe the complainant, he said:

“... she still just seems like she - the same way she seemed when I saw her last, still intoxicated and not upset or anything.”

109. He explained that she appeared intoxicated on the basis of “[t]he same reasoning as earlier, unbalanced, slurred words and aggressive towards myself and [Mr Soe]”. He recalled that, as she approached him she “tried to force her way back into the venue” and was “either walking or running back in through the front entry doors where me and [Mr Soe] had put our arms out to stop her”. Mr Figueira told the complainant that she was not allowed back into the venue. Her response was that she “swore and made an accusation”. He recalled that she said, “You can’t let me into the club, but your guard can give me $50 and rapes me”. She then “pulled $50 out of her chest area and threw it on the floor”, at which point Mr Figueira got onto the radio and spoke to Ms Robbins and asked her to call the police.
110. Detective Cowie (who was stationed at the Parramatta Police Station) said that she became aware of a radio call concerning the complainant’s allegation which had gone out at 2.04am.
111. The complainant, who was crying and kept repeating the allegations, was moved away from the front entrance to the gaming area where she was with friends. When Mr Figueira tried to ascertain from the complainant the identity of the security guard who had done what she alleged “she just said, ‘the islander guard,’ which didn’t obviously really narrow it down”, because “about 70% of all guards on site” were of Pacific Islander appearance. At a certain point, Mr Figueira asked the complainant to move to the front of the hotel and wait for the police. His recollection was that “[the complainant] was in the gaming room for a long period of time and I think she came out the front just when the police had arrived”.
112. Mr Figueira confirmed in cross-examination that when the complainant was near the poker machines he overheard her saying, “He took me to the car and gave me fifty dollars”.

Mr Zanganeh’s evidence about a further conflict between the complainant, SD and a group of Pacific Islander males

113. Mr Zanganeh said that when he returned to the front entrance after speaking with the applicant in the hotel car park, he “saw [the complainant and SD] start a fight with a group of Pacific Islander males across the road in Harris Street again”. He said that it was “a little bit hard to see it [because] [i]t’s a bit far but [he] could hear it”. He said:

“I heard on the radio and I heard like a screaming and things like that. That’s why I went down there again.”

114. He said further:

“I didn’t see it when I was at the front door or when I heard the call on the radio. Then I went down to Harris Street again. I saw them [the complainant and SD], they were having a fight with a group of Islander males ... just across the road from the carpark entries, yeah ... Not far. It was only like across the road from the carpark entries.”

Further contact between SD and Mr Zanganeh

115. Mr Zanganeh said that this was the first time he had seen SD since he had left her in the park. He said:

“We stopped it [the fighting] again. I walked there, I spoke to the Islander males and I moved them on.”

116. Mr Zanganeh denied that he had made up this incident to cast SD and the complainant in a bleak light.
117. Mr Zanganeh said that he asked SD what had happened because he thought that she was going home and she said that she just realised that her car was parked on the other side of George Street. He said that they went to find the car again and walked to the other side of the building to George Street. He said that after they had found SD’s car, SD drove them to the hotel car park, having agreed to drive him back with her.
118. CCTV footage recorded at 1.53.39am on 27 February 2022 was played to Mr Zanganeh which showed that he made a gesture with his arm towards the car park at a time when he had approached the complainant. When he was asked why he made that gesture he said:

“Because I think at this point we brought the car back and I was asking her to go with the other girl, sit in the car and go home.”

119. Mr Zanganeh initially accepted that he knew at that time that the complainant had made an allegation of serious sexual conduct in relation to the applicant but retreated from that acceptance when he was asked why he was telling her to leave at that point. The prosecutor (who by this time was cross-examining Mr Zanganeh pursuant to leave granted under s 38 of the Evidence Act 1995 (NSW)) put the following:

“Q. I suggest to you - you went over there, you tapped her on the arm, you motioned over towards the carpark and you were indicating to her that she should leave. What do you say to that?

A. Well, if in that point if I knew what happened I wouldn’t ask her to go. If I knew what happened between her and the security guard I would ask the managers to call the police.”

120. Mr Zanganeh then said that he was not asking the complainant to leave.
121. The prosecutor played CCTV footage which had been recorded at 1.57.20am which depicted Mr Zanganeh and SD walking to a door at the hotel and then leaving from the door. The following exchange then occurred:

“Q. Can I suggest to you that when you spoke to the middle eastern female [SD] after that point, you had a discussion with her about what took place between you and her in the park. What do you say about that?

A. I did not. I ask her to tell her friends to calm down and I was the one I said to the female, you want to stay in the gaming room. And I knew the manager’s already called the police.”

122. Mr Zanganeh accepted that, by this time, he knew that the complainant had complained about the applicant doing sexual things to her and that he knew that the police had been called. However, he said that when he first saw the complainant outside the front entrance to the hotel (after he had escorted SD to find her car) he did not know of the complaint.

The complainant’s complaint to Joshua

123. After speaking to security, the complainant then messaged Joshua who “came and met [her] out the front and [they] sat in the pokies room on the floor ... [and the complainant] told him what happened”. At that point, she described her state of drunkenness as:

“Definitely at a nine or ten at this point. ... [I was feeling] [e]xhausted. Really, really exhausted. Shakey. I was really shakey from what had just happened but everything was still spinning for me. A lot of it was just hazy.”

124. The applicant then approached her while she was sitting on the floor and asked her what was wrong. She did not respond and did not see him again after that point. At some point, another security guard approached the complainant. Her evidence was:

“I believe that I was still talking about what had happened and one – a different security guard came in and said this wasn’t the time or the place to be doing it, and he asked me to go outside and wait for the police to arrive.”

125. Mr Zanganeh said that he saw that the complainant had walked into the gaming room and he told her that she could sit in the gaming room and also told her friends to tell her to calm down as the police were on their way.
126. Mr Zanganeh also said that before the police arrived he went to speak to the applicant, who was sitting in his car. Mr Zanganeh asked him whether he was fine and asked him what happened but the applicant “didn’t tell me anything about that ... and said he is fine”. Mr Zanganeh asked him if he wanted to come back to work and why he was sitting in his car but “[t]hen realise[d] he need[ed] a break”. Mr Zanganeh said that the applicant said that “he was embarrassed to come back to the work because [of] the female[’s] reaction at the front door”. He agreed in cross-examination that when he had asked the applicant what happened, the applicant said, “I had sex with her and I came in her” and that he was too embarrassed to go back up to the hotel and “embarrassed that someone had accused [him] of that type of stuff”. He agreed in cross-examination that when he asked the applicant whether he was going back to his shift, the applicant told him that he would wait for Ben Parker, whom he understood worked for the applicant’s employer.
127. Mr Zanganeh then went back to the front door of the hotel and waited for the police officers to arrive. He did not see the applicant again on that shift.

The complainant’s report to police on the night of the alleged offending

128. The complainant went outside and waited for the police. Shortly after the radio call had gone out at 2.04am, three police officers arrived, two males and one female, with recording equipment which was used to record what the complainant said (the recording was tendered together with a transcript). The female police officer asked the complainant to take her to where the alleged offending had happened, which she did. The statements attributed to the complainant in the section below are taken from the recording by police at the scene.
129. While the complainant was still at the scene, she told police that she arrived at the hotel at about 8.30pm or 8.40pm, having had three or four Smirnoff Double Blacks at her father’s place before her arrival. She also told police that she had had “maybe two Double Blacks on the rocks and then a beer” at the hotel. She told police about the first incident which had led to the CCTV cameras being checked. She explained the second altercation and the fact that she and the other woman had to leave. The complainant told police that both she and SD were accompanied by security guards who were trying to calm them down. The complainant described the security guard who accompanied her (the applicant) as “Tongan, not tall but not ... short”.
130. The complainant said that when the four of them reached “[t]he traffic lights”, SD and the security guard who was with her crossed over the street and the applicant and the complainant stayed on the same side of Harris Street as the hotel. The complainant told police that, at this time:

“He was just, like, talking to me, like ..... security guard was, like, saying, like, you need to calm down, like, like, it's, the other girl's been kicked out. Like, it's the law that you guys get kicked out too, whether you hit her or whatever.”

131. When the police asked the complainant where the applicant took her, she said:

“... I don't know, like, he took, it was, like, I felt like, it felt like, a, cc, a corner. And then there was, like, this, like, dark, like, you know the, like, boxes things. Like, the dark brown boxes. ... Electric ... thing ... in grass.”

132. The complainant continued:

“... he was just comforting me all the way until we got ... to this spot. And he was, like, kissing me, and then he was, like, oh ..... like, bend over and lay down and stuff.”

133. The complainant told police that she was lying on the grass on her back and could see something which “looked like a little ..... dark, like, big box”. She also told police:

“And then he moved, like, he ..... he ..... pinned me up against the wall ..... started kissing me.”

134. She explained:

“... I didn't know what to do. I'm thinking, like, a security guard ... at any club would try doing this. So, so, like, I was just here and he was kissing me. And then he was, like, OK, get, uh, lay down. And I was, oh, first he was, like, Oh, bend over. So obviously I had bent over here. ... he was trying to ..... his penis in ... me ... it didn’t just work ... then he told me, Get on the floor ... he told me to lay down ... [o]n my back. ... He was trying to have sex with me ... He was on top of me ... in the grass ... he was still trying and keep, still put his penis inside me ..... just disgusting. And then, um, we got up and ..... like, OK, let's go. And then he slipped me, ff, like, uh, when he slipped the $50.00 I had no id, like, I really had no idea what was happening.”

135. The complaint told police that they were “out here” (in the location which the complainant had identified for police) “[m]aybe, like, 10 to 15 minutes”. The applicant did not wear a condom and she did not think that he ejaculated. The complainant told police that when the applicant gave her the $50, he did not say anything and “[h]e just assumed that [she] wouldn’t say anything”. He walked ahead of her back to the hotel.
136. The complainant told police that when she and the applicant were walking back to the hotel, SD and the security guard who had accompanied her were also returning to the hotel. The complainant saw the applicant approach the security guard who had accompanied SD. She explained to police, “that’s when I was, like ... what the fuck”. The complainant told police that she then called her “friend that was in there” (Joshua) at 1.47am and told him what had happened. The complainant also told police:

“And then that's when we went to the pokies and I pulled out the $50.00 from my bra and said, Look what he just gave me, like, like, literally he just ..... tried raping me and is giving me $50.00 for it. And they're all, like, we need to call the police, like, this isn't right.”

137. When police asked her if she could remember anything else that had happened, she told them:

“I remember we were in the pokies and I was just crying 'cause I, I couldn't believe what just happened. And then the security came up and act like everything, like, oh, what happened? Like nothing had happened ..... was ..... but I haven't seen him since. Like, I was too scared to talk about what, I just didn't want to say anything in case anything happened. So I just kept cool and just pretended like ..... and then, um, yeah, I haven't seen him since.”

138. Senior Constable Julia Fuller attended the hotel with Constable Matthew Thebridge at about 2.20am on the morning of 27 February 2022. When they approached the complainant, Constable Fuller could “smell alcohol”. The complainant was “crying” and was “well affected by alcohol” and “quite hysterical”. According to Constable Fuller:

“She was quite repetitive. She kept repeating the same sort of things over and over again saying that the security had given her $50 for sex and she had come back into the venue and thrown it on the ground and she kept saying, you won’t believe me, you won’t believe me and from that I found it quite difficult to understand what had actually taken place.”

139. Constable Fuller considered that the complainant became “a lot calmer” when she took the police to where the incident happened and was being recorded on the body-worn camera operated by the police.
140. Ms Loomes and Ms Robbins helped to “burn” the CCTV footage of the complainant taken at the hotel that evening which they then provided to police.

The complainant’s first interview at the police station

141. Afterwards, the police drove the complainant to the police station, where she spoke to Detective Cowie, who was the officer in charge of the investigation and was working with Constable Michael Outzen. Detective Cowie said that Senior Constable Fuller and Constable Thebridge arrived with the complainant at about 3am.
142. The complainant agreed in cross-examination that this was the first occasion on which she had spoken to Detective Cowie and said that she gave her a few details of what had happened and arranged to see her the following day (later that Sunday). In cross-examination, the complainant agreed that she was “extremely intoxicated” when she first spoke to Detective Cowie. The complainant’s evidence was:

“I can barely even remember being at the police station. I remember I told her I was too tired and that I was really, really exhausted and she excused me to go home.”

143. The complainant agreed in cross-examination that she had told Detective Cowie that “the Tongan person [the applicant] took [her] behind a box and started kissing [her] and telling [her] to bend over ... that [the applicant] had penile/vaginal intercourse with [her] ... [w]hen [she] was lying on the grass ... [and] that he gave [her] a $50 note and [she] then went up to the Albion Hotel and [she] threw the $50 note on the ground before the police came”.
144. Detective Cowie described the complainant at that time as follows:

“It was quite clear that [she] was visibly upset, she looked like she’d been crying. Her eyes were very glazed and she had makeup under her eyes. She looked very tired like she was - her eyes were sort of closing as I was talking to her and she was hugging her torso with her two - two hands ...”

145. When asked about the complainant’s intoxication level, Detective Cowie said:

“It was quite clear that [she] had been drinking. I could tell just by the way she was speaking to me that she had been - she’d consumed liquor... She was just very delayed in her responses when I would ask her a question. And she was - and even her face, like her eyes were very - the lids were very heavy and just very delayed in her responses.”

146. Detective Cowie’s recollection of what the complainant had told her on that occasion was:

“She told me that she had come to the Albion Hotel that night with her friend [SD]. She said that she had been kicked out of the Albion Hotel earlier at that night and she was unsure why. She was allowed to return and then she was kicked out again at which point a security guard had led her away from the Albion Hotel and at that point she confirmed that she had been sexually assaulted. ... I tried to clarify what she meant by sexually assaulted and she was able to confirm that the guard had penial-vaginal sexual intercourse with her. And she said that - she confirmed that she had been drinking that night, and she also stated that she was given a $50 note. She then said that she returned to the Albion Hotel and that’s where police were contacted. ... I tried to get her to go to the hospital. That’s just a standard procedure that we do after something like this occurs. She was very reluctant to. We ended up calling the hospital however, and we made arrangements for her to attend the following day.”

147. Detective Cowie said of the complainant’s explanation for her reluctance to go to the hospital:

“She just said she was really tired. She’d been awake for a long period of time, and she just wanted to go home.”

148. Detective Cowie explained that she did not attempt to take a formal statement from the complainant at that time because “it was quite clear that she was intoxicated, and our process is to usually do this at a later date when they’re feeling better”. Detective Cowie arranged for two officers to take the complainant home and told the complainant that, after she returned home, “she should provide the clothing that she was wearing at the time of the alleged offences to those officers”.

The complainant’s complaint to her mother

149. The complainant had no recollection of having called her mother during the night of 26-27 February 2022.
150. However, her mother gave evidence that the complainant had phoned her at about 3.57am on 27 February 2022, sounding “devastated”, “extremely upset”, “shaky” and “was hyperventilating”. As far as her mother recalled, the complainant was either on the way to, or already at, the police station. The complainant told her mother: “I was kicked out of the Albion and I was sexually assaulted by the bouncer”. The complainant’s mother wanted to go to the police station but the complainant told her that the police would take her home. She also told her mother:

“Some girl was starting an argument with me and I don’t even know her. The bouncers kicked us both out and I hadn’t done anything wrong ...Then one of the bouncers took me around the back and he raped me and then he gave me $50 to keep quiet.”

151. According to the complainant’s mother, when she insisted on going to the police station, the complainant said, “No mum, I’m really tired and really upset and just want to go home and cuddle [her son] ... Please don’t tell dad what happened, I just can’t believe that he gave me $50 and told me to keep my mouth shut as if I was a prostitute”. In the course of the telephone conversation, which lasted about five minutes, the complainant’s mother and the complainant told each other that they loved each other.

The complainant’s return to her father’s place

152. The police then drove the complainant back to her father’s place. They asked her to put all her clothes, including her bra and underwear into a brown bag, which they took away. The complainant “fell straight asleep on the lounge”.

The morning of Sunday 27 February 2022

153. At about 7.30am, the complainant’s mother went to the complainant’s father’s place (where the complainant was staying). She waited until her other daughter was awake as she was not on “good talking terms” with her ex-husband. They both then waited for the complainant to wake up. Her mother thought that the complainant might have woken up at about 10.30am. The complainant’s recollection was that she woke at about noon, at which time her mother told her that she had to go to the hospital for a forensic examination. Her mother described the complainant as being, at that time “an empty shell [who] didn’t say or do anything. She [was] just - blank, just sat there emotionless, like in shock”.
154. The complainant’s mother explained that she did not speak to the complainant about what happened. She said in evidence:

“I knew that you’re not supposed to speak to someone that’s been through an incident like that because once they start telling the story they can distort it a bit in their mind, so I knew not to speak to her at all about it and I never have since.”

The forensic examination at Blacktown Hospital on 27 February 2022, the complainant’s complaint to Nurse Leggett and the results of testing

155. The complainant then went to Blacktown Hospital for the purpose of a forensic examination which was conducted by Forensic Nurse Examiner Janie Leggett. What occurred at the hospital and the results of testing were the subject of agreed facts as follows:

“At 2:15pm on Sunday, 27 February 2022 [the complainant] underwent an examination by a Forensic Nurse Examiner, Janie Leggett, at Blacktown Hospital.

History provided to Nurse Leggett

Nurse Leggett took a history of the alleged sexual assaults from [the complainant] during the examination. Nurse Leggett took the history to assist her to perform her medical examination, and not to obtain a complete history for the purpose of Court proceedings.

[The complainant] stated that on the evening of Saturday, 26 February 2022 she was preparing to go out with her friend [SD]. [The complainant] stated that she had consumed six (6) cans of Smirnoff Double Black between 7:30pm and 8:30pm. [The complainant] stated she had not eaten since early that morning.

[The complainant] stated she arrived at the Albion Hotel at approximately 8:30pm. At that time, she felt ‘tipsy’ and ‘buzzed’. Nurse Leggett asked her direct questions about her feelings of intoxication when she arrived, and [the complainant] confirmed that she did not feel ‘dizzy’ or nauseated.

[The complainant] stated that she consumed a further three cans of Smirnoff Double Black and two schooners of beer. [The complainant] recalled she felt ‘hazy’ and experienced periods of memory loss. Nurse Leggett asked her direct questions and [the complainant] stated that she was uncertain whether she was unstable on her feet, slurring her words, or nauseated.

[The complainant] stated that while on the dance floor an argument arose between herself, [SD], and another female patron whose name she did not know. [The complainant] was unable to recall further details of this altercation and was uncertain of the time.

[The complainant] stated that she and [SD] were escorted from the Hotel by two security guards who took them in separate directions once outside. [The complainant] described the guard escorting her as being of large build and who appeared to be of Maori descent.

[The complainant] stated the male took her to a nearby park. He took her behind a ‘solid’ structure, pushed her back against the structure and kissed her on the mouth without her consent. He pulled her dress up, pulled her bra down and touched her breasts. [The complainant] recalled feeling frightened.

[The complainant] stated the male told her to turn around and bend over. The male unsuccessfully attempted to penetrate her vagina with his penis. [The complainant] stated he did not wear a condom and did not ejaculate.

[The complainant] stated the male pushed her down and penetrated her mouth with his penis. [The complainant] stated he did not wear a condom and did not ejaculate.

[The complainant] stated that the male then told her to lie on her back on the grass and penetrated her vagina with his penis. [The complainant] said she was feeling frightened for her safety. [The complainant] stated he did not wear a condom and she was uncertain whether he ejaculated.

[The complainant] stated that the male gave her $50 before he left.

[The complainant] stated that she returned to the hotel where she located [SD] and confronted other security staff about the assault. Police were called and attended soon after.”

(Paragraph numbers omitted.)

156. Nurse Leggett recorded her findings of note as “an irregular shaped pattern which was red with white borders” on the complainant’s right leg, which the complainant said was ‘itchy’ and was caused by lying on grass. Although a sample of the complainant’s blood taken at 3.15pm on 27 February 2022 did not detect alcohol, a sample of her urine taken at 3.25pm detected alcohol at a level of 0.005g/100ml.
157. Swabs taken by Nurse Legget were analysed by a DNA expert at the NSW Health Pathology laboratory, and recorded that the applicant’s DNA was present on the high vaginal swab and his semen was detected on the high vaginal smear, low vaginal smear, vulval smear, and external labia smear. The applicant’s semen was detected inside the complainant’s underpants and his DNA was located inside and outside the left and right cups of her bra.

The applicant’s attendance at Parramatta Police Station on 27 February 2022

158. At about 4pm on 27 February 2022, the applicant attended the Parramatta Police Station with Mr Parker. On arrival, he indicated that he was aware that police wanted to speak to him in connection with their investigation into the complainant’s allegations. The applicant agreed to take part in an electronically recorded interview with a suspected person (ERISP) conducted by Senior Constable Danielle Helies and Senior Constable Jared Morrison, which was played to the jury and marked Exhibit P. The transcript of the ERISP also marked as Exhibit Q.
159. In the ERISP, the applicant said:

“... last night, before this situation or whatever happened -she was kicked out, so she was asked to leave. ... She was part of, um, an argument in another club, so she was the second party ... and I escorted her out the back gate. And as I was escorting her out the back gate, she was bein’ aggressive and whatnot. So I helped her, moved her around, showed her a 50 metre card. We had two other securities there, helping, moved, moved and we got to, what street was it, George Street, to the end of the George Street at the lights. And, yeah, we ended up, uh, she asking me questions, what nationality I am, what, back, like, how old I am. And we just went on from there, just started making out. And, yeah, when, around the corner from there, just kept making out, making out. And then, I mean, like, in all honesty, like, she didn't refuse, like, not a, no, no hand signal, nothing. She didn't say, Stop, not even, like, push me away. Like, it was all her consent. ... we were kissing, kissing, kissing, and we did what we had, we did. And at the end of it, I gave her money so she can catch a cab home, ‘cause her friend left her. So she came with another friend ...”

160. At that point the police stopped the applicant, placed him under arrest and the interview terminated. The interview resumed at 5.23pm but lasted only one minute. Detective Cowie confirmed that the applicant agreed to provide his phone and the PIN code to police and also agreed to a procedure which would allow DNA samples to be taken.

The complainant’s statement to police which was taken at the station

161. After the forensic examination, the complainant returned to the police station to speak to Detective Cowie at about 5pm on Sunday afternoon. The complainant made a statement which Detective Cowie typed out and the complainant signed.

The complainant’s return home to the mid-north coast

162. After leaving the police station, the complainant returned to her father’s place to get ready to leave for home on the mid-north coast with her mother and her son on Sunday evening.

Other matters raised in cross-examination of the complainant not referred to above

163. The applicant’s trial counsel cross-examined the complainant about the various statements she had made about how much she had drunk on the relevant night. The cross-examination included the following exchange:

“Q. ... what you’ve done in your evidence yesterday is you have exaggerated the number of drinks of alcohol that you’ve had? You’ve described much more alcohol that you drank than you actually drank, do you agree with that?

A. I don’t agree or disagree.

Q. You don’t agree or disagree what does that mean?

A. I don’t remember the whole night. I’m not going to specifically remember how many drink I had that night, I’m estimating to my best ability from my memory from two years back.

...

Q. Does that mean that the evidence you gave yesterday is the best you can recall now looking back on what happened back in February of 2022?

A. Yes. I’m not going to remember what happened to me as it was really traumatic I’m not going to specifically remember how many drinks I had though.”

Other matters

The practice of the hotel regarding intoxicated patrons

164. If someone leaves the premises but refuses to leave the vicinity of the hotel, Mr Lynton said that the policy of the hotel is:

“If they haven’t organised a lift home or they can show that they’re leaving the venue, waiting for a taxi or an uber, ie, et cetera, we would then contact police to come out and issue a move on notice.”

165. If a person does not leave the vicinity of the hotel, the hotel avoids a “hands-on policy” (that is, they do not touch patrons) and engages in “verbal communication”. A security guard might walk in the patron’s presence. There was a verbal policy that security guards were not to go “off camera” when escorting a patron off the premises but there was no policy document to that effect which had been given to the applicant.
166. Ms Stowers agreed in cross-examination that on Saturday nights in February 2022, there was a total of 16 security guards and RSA (responsible service of alcohol) marshals at the hotel. She agreed that her responsibility as general manager included to make sure that the conditions of the hotel’s liquor licence were being complied with. She accepted that those conditions included that a licensee or employee must not allow an intoxicated person onto a licensed premises and that no liquor was sold or supplied to a person who was intoxicated.

Evidence of the applicant’s character

167. Mr Lynton agreed that the applicant was “normally a good guard” and that he did not have issues with him. The allegations made by the complainant were the first against him of which Mr Lynton was aware. Mr Lake agreed that he had “never had any dramas” with the applicant, that the applicant “knew his job very well” and that, apart from in the present case, no one had ever made a complaint about the applicant. Mr Soe gave similar evidence to that given by Mr Lake as to the applicant’s character. Ms Loomes agreed in cross-examination that there were “never any complaints made about [the applicant]”, that her experience of the applicant was that “he was a nice person”, that there were never any “internal complaints made about [him]” and that “all of [her] interactions with [him] had been good ones”.
168. In her police statement dated 23 June 2022, Ms Robbins described the applicant as someone with whom she got on well, “a sweetheart and very caring”, someone of whom she “never had a negative experience”, “a good guard, very professional” and someone who she trusted with her life.
169. Mr Zanganeh agreed that he “never had any problems with [the applicant]” and that he was “always professional” and that no complaints had ever been made about him. Mr Figueira also said that he “never had any issues” with the applicant, agreed that he was “always very professional” and “was one of [his] better guards” and “was usually very placid and dependable”.

Expert evidence relating to intoxication

170. The parties tendered a joint report of Dr Pieternal Sonya Van Nieuwenhuijzen, a forensic pharmacologist employed by the New South Wales Police, and Dr Michael Robertson, a pharmacologist and forensic toxicologist. The report, including the questions posed of the experts, said:

“1. What is the likely range of the complainant’s absolute maximum blood alcohol level and absolute minimum blood alcohol level at the time of the incident?

2. What is the most likely level of the complainant’s blood alcohol level at the time of the incident?

Blood alcohol levels can be determined by forward calculations (for example Widmark), this is where you know the exact amount of alcohol consumed and the times that it was consumed. When a blood sample has been obtained and a blood alcohol level has been reported you can perform a back calculation using the rates of elimination (range from 0.009g/100ml/hour to 0.025g/100 ml/hour. This will provide you with the most accurate blood alcohol level.

Based on the information we have in this case we can only determine an absolute maximum blood alcohol level.

A blood sample was obtained from the complainant approximately 14 hours after the alleged incident at 15.15 and no alcohol was detected. If we assume that her blood alcohol level reached zero at 15.15, the complainant’s absolute maximum blood alcohol level at the time of the alleged incident would have been [between] approximately 0.126g/100ml and 0.350g/100ml.

This is, however, only true if her blood alcohol level reached zero at 15.15. It was before then, her maximum blood alcohol level at 01:00 would have been lower.

Based on the information we have it is not possible to determine an absolute minimum blood alcohol level or the most likely blood alcohol level at the time of the alleged incident.

3. Was the complainant affected by alcohol at the time of the alleged incident? If so to what extent?

Based on the description of how the complainant was feeling (‘tipsy’ and ‘wasted’) and how she was described by others (‘loud’, ‘overly drunk’, ‘very intoxicated’, ‘looked like she had had a few drinks’, ‘smell of alcohol’, ‘intoxicated’). She would have been affected by alcohol at the time of the alleged incident.

4. What likely effects did the alcohol have on the complainant at the time of the alleged incident?

The complainant would have been more disinhibited. She would have struggled with controlling her emotions, and her decision making would have been impaired. Her perception of risk would have been affected by alcohol.

5. Was the complainant’s level of intoxication likely to have affected the following and if so how and to what extent?

(a) Her understanding and appreciation of what was going on around her.

Alcohol decreases a person’s ability to correctly perceive and process information. Alcohol can impair a person’s ability to incorporate all the information available to them which can change their decision-making. (George et al., 2005).

In the absence of knowing her actual level of intoxication at the relevant time, the magnitude of any impairment cannot be determined. Of possible relevance the complainant was able to recall the events prior to and after the alleged assault to police.

(b) Her decision making ability.

Her decision making ability would have been affected by alcohol. In laboratory studies alcohol increases reactions times and increases ‘risky’ choices.

(c) Her ability to make considered decision.

Alcohol causes disruptions in processes used in making decisions, this then decreases the ability to make considered decisions.

6. Having regard to the CCTV footage, are there any observable signs of the effect of alcohol on the complainant, if so what were they?

There were no observable signs of intoxication such as impaired balance, on the CCTV. The complainant was observed to be demonstrating aggressive behaviour after she was removed from the venue and needed to be restrained by security before being escorted away at around 01.18.

7. If there is disagreement on any of the above matters, what are those matters, what is the disagreement, and why?

There are no material differences in any of the above matters.

8. Are there any additional relevant matters which are the subject of expert opinion in this matter?

There are no additional relevant matters when this report is read in conjunction with our respective expert reports.”

171. The experts agreed that, at the higher end of the possible range, 0.350g/100ml, you would expect to see significant signs of intoxication, including unconsciousness, impaired balance, slurred speech and complete absence of memory, as such a level can be lethal. At the lower end of the possible range, 0.126g/100ml, you would expect to see:

“... some psychomotor impairment so issues maybe with balance, with walking, possibly slurred speech so that would be the observable signs that you could see and then somebody would also have struggled with the way that they perceive their environment and the way that they’re processing information but you can’t necessarily see that when you look at somebody.”

172. The experts confirmed that alcohol can cause “absent or fragmented memory”. Dr Van Nieuwenhuijzen explained:

“... fragmented memory is when you remember bits and pieces it’s like a memory grey out it’s also referred to. Often when that happened under the influence of alcohol then you are able to recall if you then get primed by somebody else or being in a certain environment you are often able to recall what happened and then the other thing that can happen with alcohol is that it causes a memory blackout and that’s when the formation or long-term memory is completely disrupted and no memory is formed and you are unable to recall what happened even if you are trying. So even if you are put in the same bar or you are being told like this happened and then you did this you’re not able to remember that because that memory was never formed.”

173. Both experts accepted that the complainant’s description of her memory being “hazy” was consistent with fragmented memory. While the experts agreed that, when the complainant spoke with police at the scene and was recorded on the body-worn camera, the complainant was intoxicated but opined that she did not appear to be significantly intoxicated at that time because she was able to walk and talk.
174. The experts also agreed that when viewing the compilation of CCTV footage of the complainant on Harris Street outside the hotel she exhibited “somewhat disinhibited behaviour” such that the inference could reliably be drawn “that her decision-making was impaired”. Dr Robertson said:

“Disinhibition resulting in irritation and sort of aggressive behaviour is something that is observed in people that have drunk alcohol.”

175. When asked to give a relevant illustration of the complainant’s inability to process information, Dr Van Nieuwenhuijzen said:

“...when ... the complainant was in the club ... she went to the security to say that somebody had been harassing her but then when the security footage was viewed it turned out that actually she was the person who was harassing someone else so that could be an example how she was not able, you know, to correctly process the information and what was happening.”

176. Dr Van Nieuwenhuijzen agreed that the complainant’s perception that she was being controlled by the applicant and her failure to appreciate why they were walking in that direction (away from SD) may have been compromised by her intoxication. Dr Robertson acknowledged that the complainant may not have picked up on cues while she was walking along Harris Street with the applicant because of her intoxication. Dr Robertson said:

“My understanding is she was ushered away from the altercation and she was led down the street. I don’t know if she knew why she was being led down the street and away from the venue. But she had the ability to understand who she was with and those sorts of things. So it wasn’t as if she was disoriented is the point I was trying to make. She was compliant to the extent that whilst she wanted to go back to the hotel, I think she understood or appeared to understand that she was being moved away from the hotel for reasons of being evicted from the hotel and avoid conflict.”

177. Dr Robertson confirmed that he was not suggesting that the complainant was aware that she was walking down Harris Street to a location on Hassall Street to engage in sexual activity.
178. Dr Van Nieuwenhuijzen confirmed that she was not able to give an opinion based on the complainant’s level of intoxication as to the extent to which that might have affected her decisions in relation to engaging in sexual activity.
179. In cross-examination, the experts were taken to the complainant’s own assessments of her level of intoxication and agreed that the descriptions given by the complainant appeared to be somewhat inconsistent with how she appeared on the CCTV footage. This observation included the complainant’s statement that if she did not have the electricity box to lean on she would have fallen on her face.
180. The experts also agreed that when the complainant was asked to leave the hotel at about 1.17am:

“She wasn’t so intoxicated that she wasn’t aware of her surroundings, that she wasn’t able to make decisions. There was a level of perception there. That is she was aware of things going on around her and in this case her dress and that then she made a conscious decision, an appropriate decision to then pull her dress back down.”

181. The experts were also asked about the complainant’s appearance in the CCTV footage at 1.52am when she returned to the front of the hotel and was interacting with security guards. Dr Robertson (with whom Dr Van Nieuwenhuijzen agreed) said:

“I didn’t observe any signs of intoxication, my memory is that she was standing for a period of time interacting with security guards she was having a conversation with them, clearly we don’t know how her speech was at that point in time but we can see that there wasn’t obvious sway, she wasn’t requiring to lean on something to retain her balance, so again there was no obvious signs of motor inco-ordination or loss of balance, those sorts of things that could be observed.”

182. Dr Robertson (with whom Dr Van Nieuwenhuijzen agreed) said that when the complainant was taking police to the scene and telling them what happened (as recorded by police on the body-worn camera from 2.50am):

“... we’re looking for those obvious signs of intoxication, so impaired balance, we do have some understanding of speech in this instance because she was talking, her ability to recall questions being asked of her, her ability to respond appropriately to those questions as well as her ability to recall details of what had happened immediately prior to and in the hours prior to. All of which to me demonstrate she was able to do all of those things and again there was no obvious signs of intoxication during that period of time so that again demonstrates that she was probably under the influence of alcohol to an extent but it wasn’t so significant that she appeared intoxicated or she appeared drunk. ... she was able to describe her drinking history when asked, she was asked about her name and her date of birth, she was able to talk about various incidents that occurred with the accused. She was able to describe what he looked like, she was then able to take police on a I guess describe where the alleged incident occurred.

There was no signs of confusion, she was clear in her voice, she was concise, she was able to answer questions concisely as I have just referred to and again they were the sorts of details that I was in particular looking for, the sorts of things that you might expect alcohol to interfere with.”

The applicant’s evidence

183. What follows is a summary of the applicant’s evidence at the trial. This Court is required to proceed on the basis that the jury accepted the complainant’s evidence as to the elements of counts 1 and 3, being the counts of which the jury returned guilty verdicts. It can, accordingly, be inferred that the jury rejected at least that part of the applicant’s evidence which was to the contrary of the complainant’s evidence as to some of the elements of those counts.
184. The applicant had received training, for the purposes of his employment as a security guard, in assessing levels of intoxication.
185. The applicant said that he first came into contact with the complainant when she was in the beer garden on 26 February 2022 and he received a call on the radio to say that she was barred from the hotel so he took her to the front door. He asked his manager to “check it out” because he “didn’t know what was going on” and the complainant was allowed back in. The next time he had any contact with her, he learned of her complaint that she was being harassed on the dance floor by another patron. He, again, took her out the front but after the CCTV footage was checked, the complainant was allowed back in. The third occasion on which the applicant saw the complainant that night was when he received a call from Mr Soe who said that there had been an altercation in the night club and he needed a hand in the beer garden.
186. The applicant escorted the complainant out the back gate through the George Street exit and arranged for Mr Figueira to explain the hotel rules to her (that she had been in an altercation and therefore was required to leave). The applicant’s observations of the complainant at that time were:

“... she was perfectly fine. She understood what everything was going on and my observation of her, she was really in control of herself. ... Like she understood everything that was coming out of my mouth ...”

187. In cross-examination, the applicant was shown the CCTV compilation at 1.04.02am on 27 February 2022, which depicted him approaching the complainant and taking her to the beer garden gates to the exit on George Street. He agreed that he did so because he had resolved that she was to leave the hotel at that time because she had been involved in an altercation and he was “concerned that she might be tipsy” and “under the influence of alcohol”. The applicant agreed that the footage at 1.04.42am showed him pointing his finger “towards [the complainant’s] face” and then to a particular area on the ground. The following exchange ensued in his cross-examination:

“Q. And then you see that [the complainant] appears to stand in that area that you’re pointing to, is that right?

A. That’s right.

Q. She appeared to be obeying the command that you gave to stand in a particular point, is that right? You were at that time exercising your authority to exclude her from the hotel, correct?

A. I mean it wasn’t my authority, it was protocol, like I explained.

Q. But it’s part of your job to do that, isn’t it?

A. Yeah, that’s right.

Q. And you’re the person that’s exercising the authority, correct?

A. That’s right.”

188. When asked to reconcile the depiction of the complainant stumbling in the footage with his description of her as “perfectly fine”, the applicant responded that she was “perfectly fine under the influence”. He agreed that the complainant was “yelling” at him but denied that it was “aggressive” or “hostile”. Further footage was shown which included footage taken at 1.12am. When it was put to the applicant that the complainant was angry with him because he had excluded her from the hotel he said: “She was angry for getting excluded from the hotel, but she wasn’t angry at me”. He agreed that by 1.19.07am, the complainant was angry “as soon as she sees the other party”.
189. Further footage was played which the prosecutor suggested showed that the applicant touched the complainant’s breast, which he denied. The footage continued to be played, and the applicant agreed that it showed that he had the complainant in a “bear hug”. The following exchange ensued:

“Q. You were much stronger than [the complainant] weren’t you, is that correct, weren’t you?

A. No.

Q. At times you overpowered her, you dealt with her physically on Harris Street, is that correct?

A. That’s right.

Q. You didn’t have much difficulty in doing that, is that right?

A. That’s correct.

Q. You knew that [the complainant] would be aware from your actions that you were physically stronger than her, correct?

A. I - by her judging me I would say yes but in this I used reasonable force.

Q. The question is you knew that [the complainant] would have thought that you could have easily physically overpowered her, you’d agree with that?

A. Disagree with that.”

190. The applicant agreed that the reason the complainant had to leave was that another group of women had had some interaction with her and that the two groups had to go in separate directions. Mr Figueira told the applicant to make sure that “they get an Uber, Taxi, or in their cars and gone”. He said that the “other party” was out the front so he “walked them [the complainant and SD] around because they said they parked near the park, I’m guessing. And then I walked them around to Harris Street”.
191. The applicant agreed that the complainant was “quite angry with the other group of women” and said that he “stood in-between them” before moving the complainant and [SD] away from the hotel. He said that SD had told him where they were parked which was “near the park ... [in] a carpark next to the park”. He said that they walked in that direction. He noticed that Mr Zanganeh and SD were about five metres in ahead of him and the complainant and that they were speaking what he thought was Persian and “talking and understanding each other”. He noticed that they were kissing. He said that when the complainant had “calmed down”, he and the complainant spoke to each other “and then she got into more personal details”, including whether he knew her child’s “baby daddy”. According to the applicant, when the complainant told him the child’s father’s last name, the applicant said that he knew him from growing up in Auburn and going to church together when they were young. He also said that the complainant told him that she likes Tongans. The applicant’s impression was that the complainant “felt comfortable around [him]”.
192. The applicant was shown further footage and asked whether he was dragging the complainant up Harris Street, which he denied. He explained, “[w]ell if I was to drag someone they wouldn’t be walking is what I define drag”. He said further, “I was holding her arm, we were walking, she was trying to run back to find the other party.” He thought that “she was looking back” at the other party. He said that it was “difficult” to move the complainant down Harris Street, and when asked whether he was in control of her, he said, “not really in control”.
193. After his conversation with the complainant, the applicant heard Mr Zanganeh ask SD to flash her breasts, by saying, “Show me”. According to the applicant, SD flashed her breasts by lifting her top up and invited the applicant to have a look at them, which led SD to flash her breasts again. Mr Zanganeh then told the applicant, “I am going to be here”, at which point he and SD took off towards the park.
194. The applicant agreed in cross-examination that, up to the point where he saw Mr Zanganeh and SD go towards the park, he was acting in his role as security officer by moving SD and the complainant down the street and giving them directions. The applicant explained:

“... we call it a duty of care. We like to put patrons into the car, make sure they get home safely.”

195. The applicant agreed that the duty of care required him to “look after [his] patrons”, “look after their best interests” and “put their interests above [his] own”. The applicant denied that the complainant was “distraught” or “upset” and insisted that she was “calm”.
196. At that point, according to the applicant, the complainant was smiling. When the applicant turned his attention away from Mr Zanganeh and SD and back to the complainant, he became aware that the complainant “reached over and had her hands around my neck” for about “five minutes”. The applicant then put his hands around her waist, at which point the complainant “leaned over and kissed [him]”. At that time they were still walking. The applicant said that he “didn’t know where we were walking to, but we ended up on Hassall Street”. He then asked the complainant, “Is your friend going to come back around in the car, should we wait here?”, to which the complainant said, “Yeah, they’ll be a while”. They kept kissing (“there was a lot of tongue involved”) while they were walking, including when they walked in front of the school.
197. The applicant said that “it was kind of surprising” when the complainant started kissing him and that at the time he was not thinking about his role as a security officer or his duty of care.
198. The applicant said that while they were kissing, a patron from the hotel walked past and he and the complainant “moved to the electricity box” because they “just needed a little bit of privacy”. He said that he was unable to say who decided to turn right on Harris Street to move to the electricity box and confirmed that no words were said between them at this stage. The applicant said that when they got to the electricity box, the complainant “was leaning up against [it] ... facing towards the road”. In order to get more privacy, they went “[j]ust behind the electricity box”. At this point, according to the applicant, the complainant “had her hands on top of the electricity box and ... [was] facing towards the street”. The applicant masturbated to try to get an erection by “playing with [himself]”. According to the applicant, the complainant “[took] off her underwear” and “stood up against the electricity box”. The applicant spent about five or ten minutes touching himself to try to get an erection. He was unsuccessful. They did not speak. The applicant surmised:

“I guess she was waiting for a while, yeah, but she didn’t say anything ... I think she was a bit irritated for waiting for a while ...”

199. According to the applicant, the complainant “walked over” and “put her hand in [his] pants” for “[f]ive ten minutes again ... jerking [him] back and forth”. He was still unable to get an erection. The complainant then “got on her knees and she pulled [his] pants down”. She then “was sucking [his] penis ... [for] [t]en to 15 minutes”. According to the applicant, “by that time, [he] had an erection”. He then took his black vest off to lie it on the grass and lay down on the grass with his bottom on the vest (with his pants down around his ankles). The complainant was “towering over [him]”. Initially, the applicant said that the complainant took her underwear off, but then agreed that she had already taken it off when she was at the electricity box. In cross-examination, the applicant said that the complainant put her underwear back on before she came to “jerk [him]”. He then said that “she pulled her skirt up [and] got on top of [him]”, by which he meant that “[h]er bottom” was on top of him and she “used her hand to put [his] penis into her vagina”. The applicant did not recall any discussion between them at any time while he was masturbating, during oral sex or during penile vaginal intercourse, including about using a condom. According to the applicant, “she was riding me ... [s]he was on top of me [and] leaning over kissing me, lot of tongue action”. They were in that position for “[s]ay 10, 15 minutes around that”. It came to an end when he ejaculated inside her. After that occurred, his radio went off, asking for his and Mr Zanganeh’s location. He panicked “[m]ainly for [being] gone to[o] long, losing my job, that was all running through my head”.
200. They were “still going” because he still had an erection for “a brief 5 minutes, 10 minutes” but when the radio went off he said to the complainant, “can you please get up” and she got up without saying anything. The applicant then put his underwear and pants back on and picked his vest off the floor. According to the applicant:

“[The complainant] got up, so that’s clear [the complainant] got up before me. She got up before me, she put her underwear before me, then I got up”

201. When they were both fully clothed, he asked the complainant, “Is your friend coming back to get you?” Initially he said that she did not answer but then he said that she answered, “no”. The applicant then realised that maybe she was right: that “her friend’s not coming back”. He then asked her where she lived and she said, “Coffs Harbour, around there” and he gave her $50 because he “wanted to contribute to a cab ride home for her”. He then said that they could “go back together and get a cab for [her] to go home”. According to the applicant, “[t]he next thing [that] happened [was] she asked me if she can come back [in]to the hotel”, to which he answered, “no”. The applicant said that “she just blanked out”. He elaborated:

“I mean she was excited throughout the whole - when we had sex and all and then her face just went blank.”

202. He was asked to expand on his description of the complainant being “excited” and said that she was “showing enjoyment” and “moaning, she was getting wet when she was on top of me”. He said that after he had told her that she could not come back into the hotel, she “just went quiet”. As they were walking back along Harris Street back to the hotel, he saw Mr Zanganeh and SD walking towards them from the park. The applicant said to the complainant, “[y]our friend’s over there” and pointed towards them. The applicant said that the complainant crossed over Harris Street to SD and he continued back to the hotel.
203. The applicant said that he stood at the front entrance and waited for Mr Zanganeh to join him. The applicant asked him, “Did youse do it?”, to which the applicant said, in his evidence in chief, that Mr Zanganeh responded, “yes”. In cross-examination, he said that Mr Zanganeh said, “You know me, I’m married. I have a kid”.
204. The applicant explained that he stopped at the front entrance rather than going back inside the hotel because he could not find his vape. He called Mr Soe and asked him if he could bring his vape so that he could use it. The applicant said in cross-examination that smoking “[h]as to be off camera”. CCTV footage of the applicant vaping in the car park was shown to the applicant.
205. The applicant saw the complainant when she was standing in the middle of the road before the entrance. According to the applicant, she said to him, “I’m going to get you for rape because you came in me”. She was “speaking perfectly fine, I understood what she said”. The applicant said that he was “just in shock”, “just blanked out” and “didn’t know what was going on”.
206. He saw the complainant run to the main entrance of the hotel. He heard her say to the security guard at the main entrance, “one of your guards raped me” and saw her “take out a $50 note that I gave her”. The applicant’s evidence was that the complainant initially “accused another guard, Semi Soe”. By this stage she was “aggressive” rather than the “really comforting person” with “really positive energy” she had been when they left the electricity box.
207. The applicant said he “just felt embarrassed, really shocked”. Because he was “full of embarrassment”, the applicant went and waited in his car, which was parked in the hotel car park, where he stayed for around 30-40 minutes. He told Mr Zanganeh that he was going to wait in the car but he told him to finish his shift. He rang his employer, who arranged for Mr Parker to come out. Mr Parker arrived an hour or two later. During that time, the applicant saw the police arrive. After he had spoken with Mr Parker he went home. Later on Sunday, Mr Parker passed on the number of the detective to the applicant.
208. The applicant went to the Parramatta Police Station with Mr Parker and participated in an ERISP. He said that he provided a DNA sample and his phone with the PIN code because he “didn’t have nothing to hide”. He did not work at the hotel again.
209. In cross-examination, the applicant agreed that when a person is involved in a physical incident on a dance floor, it can be an indication that the person is intoxicated. He added:

“I mean I would say everyone inside the nightclub was intoxicated but that’s just my opinion.”

210. The applicant agreed that he appreciated that by the time he saw the complainant at about 11pm in the beer garden she “was maybe tipsy” and “[i]t was at the back of [his] mind” that she may have been intoxicated. He also agreed that he resolved to “kick her out” of the hotel at that point. He did not agree that he resolved to kick her out because she was too intoxicated to remain in the hotel but rather because she was involved in an altercation. He maintained that after he took her outside she was “perfectly in control of herself” although she was “a bit upset and irritated”. He said that she only became upset when she met the other party.
211. The applicant agreed that after the complainant had been given a 50m card, the other group had moved to George Street and he and Mr Zanganeh moved the complainant and SD along Harris Street. He agreed that the complainant was “crying” although he also said that she was “calm” before she left the view of the CCTV footage. The applicant denied that he dragged the complainant along Harris Street. Rather he said, “I assisted holding her hand to stop her from running back”.

Other evidence adduced in the applicant’s case

212. The applicant adduced character evidence from Nunia Tohifolau, his mother’s cousin, who has known him since he was born and lived with the applicant’s family when she came to Australia in 2020. She described the applicant as “a respectful little boy” who is “honesty [sic], caring and religious”. She was shocked when she learned of the charges against him. The applicant also adduced evidence from his sister, Mele Tuuholoaki, who said that she was closest to him out of all of her siblings and that he had helped her when she became a single mother. She said that the applicant, through working two jobs, was able to help support the family and gave 80% of his earnings to the family. She had never seen the applicant be disrespectful to a woman and was shocked when she heard of the charges because “that’s not like him”.

The summing up

213. In summing up, the trial judge gave the jury directions as to the essential elements of each of the offences charged. The direction which is the subject of challenge in ground 2 was given to the jury orally and in writing and relates to the knowledge element of the charges of sexual intercourse without consent and attempted sexual intercourse without consent, being that the applicant knew the complainant was not consenting. The written version of that direction said as follows:

“4. knowing the complainant was not consenting

The third [sic] element concerns the accused's state of mind. The Crown is required to prove the accused knew the complainant did not consent to the sexual intercourse.

This is a question about what the accused's state of mind actually was. It is not a question about what you or anyone else would have known, thought or believed in the circumstances. It is what he knew, thought or believed.

You must consider all of the circumstances, including any steps taken by the accused to make sure the complainant consented to the sexual intercourse.

The law says the Crown will have proved the accused knew the complainant did not consent to sexual intercourse if:

(a) the accused knew the complainant did not consent; or

(b) the accused was reckless as to whether the complainant consented because he realised there was a possibility she did not consent; or

(c) the accused was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead not caring, or considering it was irrelevant whether she consented; or

(d) the accused may have actually believed the complainant consented, but he had no reasonable grounds for that belief.

[Emphasis added in italics to highlight the part of the direction which is sought to be challenged on appeal.]

214. In the oral summing up, the trial judge said:

“[This] element concerns the accused's state of mind. The Crown is required to prove the accused knew that the complainant did not consent to the sexual intercourse. This is a question about what the accused's state of mind actually was. It is not a question about what you, or anyone else, would have known, thought or believed in the circumstances. It is what he knew, thought or believed. You must consider all of the circumstances, including any steps taken by the accused to make sure the complainant consented to the sexual intercourse or, in this situation, the attempted sexual intercourse.

The law says that the Crown will have proved the accused knew the complainant did not consent to sexual intercourse if;

A. The accused knew the complainant did not consent; or

B. The accused was reckless as to whether the complainant consented because he realised there was a possibility she did not consent; or

C. The accused was reckless as to whether the complainant consented, because he did not even think about whether she consented, but went ahead, not caring or considering it was irrelevant whether she consented; or

D. The accused may have actually believed the complainant consented, but he had no reasonable grounds for that belief.”

215. In her summing up, the trial judge also directed the jury (uncontroversially, having regard to the terms of ss 292, 292A, 292B, 292C and 292E of the Criminal Procedure Act 1986 (NSW) which applied as the applicant was first arraigned in the District Court on 25 November 2022) not to engage in stereotypical reasoning, as follows:

“Now, ladies and gentlemen, you must bear in mind that non-consensual sexual activity can occur in many different circumstances and between different kinds of people, including people who are known to one another, people who have recently met, people who are not strangers to each other.

You must avoid making an assessment about whether or not the complainant consented to the sexual activity, the subject of the charges, on the basis of any preconceived ideas you may have about how people respond to non-consensual activity. There is no typical or normal response to non-consensual sexual activity and people may respond to non-consensual sexual activity in different ways, including by freezing, not calling out for help, and not saying or doing anything. People who do not consent to a sexual activity may not be physically injured or subject to violence, or threatened with physical injury or violence. The absence of injury or violence, or threats of injury or violence, does not necessarily mean the complainant was not telling the truth about these alleged offences. It should not be assumed that a person consented to sexual activity because the person wore particular clothing or had consumed alcohol.”

216. The trial judge also directed the jury (uncontroversially, having regard to R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [186] (Spigelman CJ) and [257] (Wood CJ at CL)) as follows:

“If you were to find the accused not guilty on a count, particularly if that was because you had doubts about the reliability of the complainant's evidence, you would have to consider how that conclusion affected your consideration of the remaining counts in relation to the complainant.”

Ground 1: alleged unreasonable verdict

The relevant principles

217. The relevant principles which apply to an unreasonable verdict ground were stated in M v The Queen. This Court must ask itself the question “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” (Mason CJ, Deane, Dawson and Toohey JJ at 493). This question “is one of fact which the court must decide by making its own independent assessment of the evidence” (at 492). The court may conclude that no miscarriage of justice has occurred if “a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by [the appellate court]” (at 494).
218. The plurality said further at 494:

“[w]here the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal 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, then the court is bound to act and to set aside a verdict based upon that evidence.”

219. A verdict of guilty may be reasonable even if the complainant’s evidence is not corroborated: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [53] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The Court in Pell said 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.”

(Footnotes omitted.)

220. The jury, as the tribunal of fact has been entrusted with the primary function of determining guilt or innocence: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
221. The Court’s ability to disbelieve a witness whose evidence a jury must have accepted, at least in so far as it established the elements of an offence in respect of which a guilty verdict has been returned, is constrained. In Z (a pseudonym) v R [2022] NSWCCA 8, this Court (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing) said at [29]:

“... it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence.”

The challenges to the verdicts

222. Ms Cook SC, who appeared with Mr Thomas-Dubler on behalf of the applicant, relied on the following two matters in support of ground 1. First, she submitted that there were significant issues which undermined the complainant’s credibility and reliability which, in light of the general cogency of the applicant’s account, meant that the Crown could not exclude the applicant’s version as a reasonable possibility. Secondly, she submitted that even if the Court were to reject the applicant’s account, there was a reasonable doubt as to whether the Crown had proved the elements of the offence on the evidence that the Court would accept.
223. As to the first basis, Ms Cook submitted that the complainant’s unsubstantiated claim that a male was harassing her on the dance floor was not only inconsistent with the evidence of several other prosecution witnesses (Ms Loomes, Ms Robbins and Mr Zanganeh came to the opposite conclusion after looking at the CCTV footage of the dance floor) but that it also affected the reliability of the complainant’s evidence generally and, thus, her credibility.
224. She also submitted as it was a condition of the complainant’s re-entry into the hotel after being removed following this incident, this episode amounted to circumstantial evidence that she was not intoxicated and was inconsistent with the complainant’s own assessment of her level of intoxication at various points. Ms Cook also submitted that the complainant’s evidence of her state of intoxication was inconsistent with the joint expert evidence which was based on the uncontroversial fact that the complainant’s blood alcohol level was zero by 3.15pm on Sunday 27 February 2022 and their observations of the CCTV footage. Further, Ms Cook submitted that the poor quality of the complainant’s evidence on count 2 affected the reliability of her evidence of counts 1 and 3 as well as her credibility overall.
225. Ms Cook submitted that the complainant’s evidence of her own intoxication was significant for the following reasons:

(1) it was inconsistent with other evidence, including expert evidence;

(2) it indicated that the complainant was exaggerating her level of intoxication to make herself seem more vulnerable than she actually was and to explain why she complied with the applicant’s commands and did not run away;

(3) the complainant’s level of intoxication was such that, in light of the expert evidence, it was unlikely that she experienced fragmented memory; and

(4) whether the complainant was displaying overt signs of intoxication was relevant to whether the applicant knew that the complainant was not consenting, was reckless as to the issue or had no reasonable grounds to believe that she was consenting.

226. In contrast, Ms Cook submitted that the applicant’s evidence was “clear and cogent” and was, with one exception, neither inherently implausible or incapable of being accepted. She submitted that, as to the events immediately prior to going to the electricity box, the applicant’s version was “more probable” than the complainant’s. The exception was that the applicant’s account of the duration of the various stages of what occurred in the vicinity of the electricity box led to a much greater time period than was objectively established by the timing of his departure from the hotel and his return to the hotel (which meant that the incident at the electricity box occurred between 1.28am and 1.46am for a total period of 18 minutes). She also relied on the character evidence elicited on behalf of the applicant from prosecution witnesses and adduced in his own case.
227. As to the second basis, Ms Cook submitted that even if the Court rejected the applicant’s account, it would still have a doubt about whether the applicant knew the complainant was not consenting. In support of this submission, she relied on the complainant’s apparent compliance with the applicant’s requests and lack of indication that she did not consent.

Consideration

228. I propose to address the specific submissions raised by Ms Cook as to the complainant’s credibility and the cogency of the applicant’s version before turning to the question whether it was open to the jury to find the applicant guilty of counts 1 and 3.
229. I am not persuaded by the submission that the complainant’s apparently flawed perception of what was happening on the dance floor in the incident relied on by Ms Cook adversely affected her credibility in such a way that it was not open to the jury otherwise to accept her evidence, or in particular her evidence on counts 1 and 3. Indeed, it was open to the jury to consider that the complainant’s perception that she was being harassed on the dance floor was a manifestation of what Dr Van Nieuwenhuijzen described as the complainant’s inability (by reason of her intoxication) to correctly process the information and comprehend what was happening.
230. While there was a range of views expressed in the course of the evidence (summarised above) about the complainant’s level of intoxication, including her own assessment, the applicant’s evidence was that his opinion was that “everyone inside the nightclub was intoxicated”. It was open to the jury to consider that, in the context of the nightclub/dancefloor, misunderstandings about intentions and who bumped whom could easily occur and the complainant’s perception that she was being harassed might have been affected by alcohol or by some factor which was not evident on the footage, but which did not undermine her credibility generally.
231. Nor am I persuaded that the alleged unreliability of the complainant’s assessment of her own level of intoxication or its alleged inconsistency with other evidence and ought to have caused the jury to have a doubt about the complainant’s evidence of counts 1 and 3. It was open to the jury to accept the expert opinion evidence that perceptions of a person’s level of intoxication may differ and that people’s assessment of their own intoxication is notoriously unreliable. Further, it was open to the jury to consider that, in addition to the effect of alcohol, the complainant’s perception and conduct might also have been affected by the circumstance that she had set off from the mid-north coast at 5am on the Saturday morning (and must have risen earlier than that) which meant that by 1am she had been up for over 20 hours) and had had nothing to eat since breakfast mid-morning, which she consumed about 15 hours previously. It was open to the jury to consider, when viewing the CCTV footage, that the complainant’s conduct was consistent with disinhibition caused by alcohol.
232. Further, it was open to the jury to consider that it did not follow from the fact that the complainant was allowed back into the hotel after the dance floor incident that she was not intoxicated. The jury might have preferred the applicant’s opinion that “everyone inside the nightclub was intoxicated” to the evidence of those still employed at the hotel who may have felt constrained to answer in a way which did not implicate their employer or jeopardise the hotel’s licence.
233. It was open to the jury to regard the complainant’s evidence of her own intoxication as being subjectively accurate, in that she felt very drunk at a particular blood alcohol content, although others might have felt less so. The jury was also entitled to reject the applicant’s submission that the complainant was exaggerating her level of intoxication to make herself seem more vulnerable than she actually was and to explain why she complied with the applicant’s commands and did not run away. It was also open to the jury to consider that the complainant was, indeed, extremely vulnerable once she was away from not only the lights, people and CCTV cameras surrounding the hotel, but also from SD. There was no contest between her and the applicant in terms of physical size or strength and he, presumably as he was working, was not intoxicated. The jury was also entitled to consider that once SD disappeared into the park across Harris Street with Mr Zanganeh, the complainant had neither protection nor support and to accept her evidence, “I’d lost [SD], I didn’t have anyone else” and, “I knew that he was a lot bigger than me and if I had run away at that point it’d just get me in more trouble, [I] didn’t know what to expect, I was worried for my life”.
234. Furthermore, it was open to the jury to contrast the complainant’s behaviour when she was, in effect, under the applicant’s power and control (when SD had left and she was with the applicant on Harris Street and around on Hassall Street by the electricity box) and, subsequently, when she was back in the relatively safe environment of the hotel where the presence of SD, a significant number of people, lights, CCTV cameras, security guards and RSA marshalls gave her sufficient protection for her to be able to complain vociferously about what the applicant had just done to her. It was open to the jury to consider that the complainant’s fears when she was alone with the applicant and out of sight of others, including a fear of death, deprived her of her powers of overt resistance.
235. It is also of significance that the jury had been directed that “people may respond to non-consensual sexual activity in different ways, including by freezing, not calling out for help, and not saying or doing anything”, as required by s 292B(b) of the Criminal Procedure Act (as it then applied). The complainant’s evidence that she did not say or do anything during the course of offending conduct was corroborated, to some extent, by what the applicant said in his ERISP, which was that she “didn't refuse, like, not a, no, no hand signal, nothing. She didn’t say, Stop, not even, like, push me away”. Her account was also supported by the applicant’s evidence (which amounted to admissions) that he physically removed her from the hotel and controlled her route away from the hotel by physical means and by giving her verbal directions, in a context where she was obliged to comply.
236. The jury can be taken to have found the applicant not guilty of count 2 because the complainant’s evidence on that count was relatively vague and uncertain compared with the clarity and cogency of her evidence on counts 1 and 3. In these circumstances, it is understandable that there is no challenge to these verdicts on the ground that they are inconsistent. There is no challenge to the trial judge’s direction to the jury in accordance with Markuleski (set out above). It was open to the jury to regard the complainant’s concessions about her memory being vague in respect of count 2 as enhancing, rather than detracting from, her overall credibility and demonstrating that she was not prepared to fabricate or reconstruct events where her memory was deficient but rather that she was giving honest evidence to the extent that her recollection permitted.
237. In relation to the applicant’s evidence, it was open to the jury to reject the applicant’s evidence as to what occurred as not reasonably possible (as it plainly did). There were several unsatisfactory aspects of his evidence to which the jury was entitled to have regard in making this assessment. First, there was a significant inconsistency between the version he gave in his ERISP about the complainant not offering active resistance to him and the version he gave in his evidence at trial that the complainant had initiated the kissing, the undressing, the tacit invitation to sex and that it was only her concerted efforts which had enabled him to obtain an erection. Even when they, on his version, engaged in penile vaginal intercourse, his evidence was that she guided his penis into her vagina and rode him while he, effectively, lay there as a passive participant. It was also open to the jury to regard the applicant’s time estimates (which were grossly overestimated having regard to the objective evidence) as not merely errors of judgment but an indication of the falsity of his version. Further, it was open to the jury to reject as absurd, in all the circumstances, the applicant’s evidence that the complainant told him that she would say he raped her because he came inside her. This was also inconsistent with the complainant’s contemporaneous complaints to police and to Nurse Leggett that she did not know whether the applicant had ejaculated after the conduct which comprised count 3. It was only after the results of the forensic examination confirmed the presence of his semen in her high vagina that it was actually established that he had done so. It was open to the jury to regard the complainant’s immediate complaint as soon as she returned to safety as credible and highly supportive of her evidence.
238. It is necessary to address the second aspect of this ground: that, even if the jury did not accept that the applicant’s version was reasonably possible, the Crown had not established his guilt of counts 1 and 3 beyond reasonable doubt. The consideration which follows is based on the assumption that the jury did not accept the applicant’s versions (in his ERISP or his evidence) except in so far as it constituted admissions against him.
239. It was open to the jury to accept the complainant’s evidence of counts 1 and 3. It was cogent and consistent with the circumstances that the applicant had led and directed her, using his authority as a security guard and his superior size and strength, to a relatively remote place away from the hotel where she was vulnerable and within his power. He knew that SD, whom might have been expected to come to the complainant’s aid, was otherwise engaged with the consequence that the complainant was alone. Her description of what then occurred at the electricity box was credible. It was corroborated by the rash on her leg and her evident distress when she returned to the hotel and made an immediate complaint to several people, which led to the police being called. Although it was not for the applicant to prove that the complainant had a motive to lie (Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2), the motive which he advanced – that she was prepared to make a false allegation of rape against him because he ejaculated inside her – and the jury’s rejection of his version may have led the jury to consider that the complainant had no motive other than to tell the truth.
240. When the police were called to the scene, the complainant gave a coherent account of what had occurred and showed the police important landmarks. What she did and what she said were recorded on the body-worn camera which was in evidence before the jury as a contemporaneous account of what had occurred. None of the matters raised on behalf of the applicant by Ms Cook is, in my view, sufficient to gainsay the jury’s assessment of the complainant as a witness of truth as to the elements of the offence.
241. When considering the applicant’s knowledge of whether the complainant was consenting to attempted sexual intercourse (count 1) or sexual intercourse (count 3), the jury was entitled to have regard to the applicant’s assumption of power and control over the complainant under the cloak of his duties as a security guard and his blatant disregard for her vulnerability and fear. It was open to the jury to consider that he used this power and their relatively secluded location to have sexual intercourse with the complainant, either actually knowing that she did not consent or simply not caring whether she consented to it or not. The jury was entitled to regard the circumstances that the complainant did not say or do anything to indicate a lack of consent and that she not did appear significantly intoxicated to be consistent with her freezing because of shock at what was happening and an indication that she did not consent and the applicant knew or was reckless as to this matter.
242. Having reviewed all of the evidence, including reading the transcript and exhibits and viewing the photographic and diagrammatic exhibits and watching the video of the CCTV footage, the footage taken by the body-worn camera and the applicant’s ERISP, I am satisfied that it was open to the jury to find the applicant guilty of counts 1 and 3. I have no doubt of his guilt on counts 1 and 3.
243. The lack of merit of the unreasonable verdict ground would otherwise result in leave to appeal being refused. However, I propose to grant leave only because of the detailed consideration which has already been given to it.

Ground 2: alleged misdirection concerning consent

244. At the time of the alleged offences, s 61HE of the Crimes Act relevantly provided:

“61HE Consent in relation to sexual offences

(1) Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF.

(2) Meaning of “consent” A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity.

(3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if—

(a) the person knows that the alleged victim does not consent to the sexual activity, or

(b) the person is reckless as to whether the alleged victim consents to the sexual activity, or

(c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.

...”

245. The challenge to the trial judge’s direction relates to the direction with respect to s 61HE(3)(b) as follows, where her Honour said:

“The law says the Crown will have proved the accused knew the complainant did not consent to sexual intercourse if:

...

B. the accused was reckless as to whether the complainant consented because he realised there was a possibility she did not consent; or

C. the accused was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead not caring, or considering it was irrelevant whether she consented; or

...”

246. Ms Cook submitted that, in the particular circumstances of the present case the direction was “an amalgamation of both advertent and inadvertent recklessness” and was erroneous because it impermissibly invited the jury to convict the applicant on a purely inadvertent state of mind by the wording of direction C. Ms Cook submitted that, to avoid error, the trial judge needed to direct the jury that, in respect of the second aspect of C, they needed to be satisfied that the risk that the complainant did not consent was obvious. In other words, Ms Cook submitted that the trial judge ought to have worded C as follows:

“the accused was reckless as to whether the complainant consented because he did not even think about whether she consented but went ahead, either:

(i) not caring whether she consented, or

(ii) considering it was irrelevant whether she consented and the risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it.

(Emphasis added to indicate the additional words for which the applicant contended.)

247. She submitted that there was a distinction between inadvertent recklessness and advertent recklessness and that the concept of “not caring” in (3)(i) of the direction amounted to advertent recklessness but the concept of considering that it was irrelevant whether the complainant consented in (3)(ii) of the direction involved some element of inadvertent recklessness. Ms Cook did not submit that the italicised words added to (3)(ii) in the extract above were required in every case but submitted that they were required in the present case because their absence resulted in a miscarriage of justice.
248. The authorities (which are addressed below) demonstrate the concern of the law to ensure that, in certain circumstances, including sexual intercourse, an accused is not to be in a better position by not having consciously turned their mind to a particular matter germane to liability (such as whether the complainant was consenting to sexual intercourse). This concern is reflected in a provision such as s 61HE of the Crimes Act, where knowledge is given an expansive definition and includes not only actual knowledge but also recklessness, whether advertent or inadvertent, or both. In a criminal context, the test is subjective (what the accused would have known or appreciated had he thought about it), rather than objective (as is the case in a civil context where the test is what a reasonable person in the position of the defendant ought to have known).

R v Kitchener

249. In R v Kitchener (1993) 29 NSWLR 696 (Kitchener), the appellant appealed against his convictions for sexual intercourse without consent contrary to s 61D of the Crimes Act and indecent assault. The complainant, who was 16 years old, was standing outside a disco with her boyfriend when the appellant, who was the President of the Life and Death Motorcycle Club, arrived on his motor bike with two other men. The complainant and her boyfriend asked if she could have a ride. The appellant agreed and drove her to a dark, sandy area and proceeded to kiss, undress and have sexual intercourse her. She told him to stop and that she had a boyfriend and she cried. On her return she told her boyfriend who reported it to police. The defence case was that she had consented to sexual intercourse.
250. Section 61D(2) of the Crimes Act then provided:

“... a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse shall be deemed to know that the other person does not consent to the sexual intercourse.”

251. The trial judge directed the jury as follows:

“The Crown has to prove beyond reasonable doubt that the accused at the relevant time of the intercourse foresaw at least the possibility that the girl was not consenting, but went ahead regardless, or he failed to avert (sic) at all to the question of whether she was consenting and just went ahead. In other words, he treated consent, as far as he was concerned, as entirely irrelevant. So there are two aspects I have just told you of in relation to that deemed knowledge coming from recklessness. It is foreseeing that leads to a possibility that she is not consenting, but going ahead regardless, or failing to even avert (sic) to the question in the situation in which he was and which he wanted.”

(Emphasis in reasons.)

252. The Court rejected the appellant’s argument that the direction was erroneous because recklessness for the purposes of s 61D(2) required the prosecution to prove at least that the appellant adverted to the possibility that the complainant was not consenting and did not extend to a case where the accused did not even advert to the possibility at all. As Carruthers J noted at 700, the only examples which the appellant’s counsel could offer of a case where an accused did not advert to the possibility at all were “cases of intoxication or lack of intellect”.
253. Carruthers J followed R v Henning (Court of Criminal Appeal (NSW), 11 May 1990, unreported) and said at 703C:

“Leaving aside those cases where the accused may be incapable of forming the requisite intent, I consider that where consent is withheld, a failure to advert at all to the possibility that the complainant is not consenting, necessarily means that the accused is reckless as to whether the other person consents within the meaning of s 61D(2). Such a conclusion is, in my view, consistent with both logic and legal principle.”

254. Kirby P confirmed that both advertent recklessness and inadvertent recklessness amounted to recklessness for the purposes of s 61D(2) of the Crimes Act in the following passage at 679B-D:

“To criminalise conscious advertence to the possibility of non-consent, but to excuse the reckless failure of the accused to give a moment’s thought to that possibility, is self-evidently unacceptable. In the hierarchy of wrong- doing, such total indifference to the consent of a person to have sexual intercourse is plainly reckless, at least in our society today. ... It would be unacceptable to construe a provision such as s 61D(2) so as to put outside the ambit of what is ‘reckless’ a complete failure to advert to whether or not the subject of the proposed sexual intercourse consented to it or declined consent. ...”

R v Tolmie

255. In R v Tolmie (1995) 37 NSWLR 660 (Tolmie), the appellant was found guilty by a jury of sexual intercourse without consent contrary to s 61I of the Crimes Act. He appealed on the ground that the trial judge had misdirected the jury about recklessness as it pertained to the mental element of the accused. The complainant and the appellant were at a touch football club presentation evening. They were observed to be kissing, cuddling and fondling each other at the club. When they left the club with a group of people, they walked along a dirt path. As they were walking, the appellant called to the complainant and asked her to come to him at the back of the group. The rest of the group continued, leaving the appellant and the complainant alone. Her evidence was as follows (as summarised at 661):

“At this point the complainant’s testimony is that the appellant said to her ‘you turn me on an I want to stick my tongue in between your legs’ – to which she replied that she was ‘with D’, her fiancée. On the complainant’s testimony, the appellant and the complainant then ‘ended up on the ground’ with the complainant on her back and the appellant straddling her. The complainant gave evidence that she repeatedly told the appellant to stop and that the appellant ignored her calls, grabbed her by the hair on either side of her head and pushed her head into the ground. She stated that he then said ‘shut-up, you’re going to get it anyway. It’s up to you how you want it’. The appellant then forcibly proceeded to remove her stockings and underpants. He inserted his penis in the complainant’s vagina, commencing intercourse which lasted for about five minutes.”

256. Kirby P drew a distinction between advertent and inadvertent recklessness. His Honour said, at 667G, that statements in the authorities:

“... can be seen to refer not to a strictly inadvertent state: that is, where the accused is completely unaware that the complainant might not be consenting, but rather to a state where the accused has, in his own mind, decided that he will have intercourse with the complainant regardless of whether the complainant actually consents or not. In this situation, the accused has implicitly adverted to and accepted the possibility that the complainant may not be consenting. It is only the fact of whether the complainant actually consented or not, to which the accused did not turn his mind. ...”

257. Kirby P’s consideration of the distinction (and whether it could be maintained) must be read against the caveat to which his Honour referred at 669A-B, where his Honour said:

“It is not coincidental that many of the comments on recklessness have been born out of obiter dicta rather than raised by actual factual situations in the versions of complainant and accused who tend to live their lives in a world that is more real than that of lawyer’s controversies. In R v Kitchener (at 700), Carruthers J wrote that when counsel for the appellant was pressed to illustrate the situation where an accused did not advert to the question of consent at all, he could only cite cases of intoxication or lack of intellect.”

258. Although Kirby P questioned whether an accused could ever assert unawareness of non-consent (“where an accused has genuinely not considered the question of consent to sexual intercourse, and is hence oblivious to the possibility that the accused [sic, the complainant] may not be consenting”), his Honour was prepared to accept that it was theoretically possible and that, as decided in R v Kitchener, “the law should and does punish this form of inadvertent behaviour in the case of unlawful sexual intercourse because parliament has authorised it to do so in cases of reckless conduct as defined ...” (669F).
259. His Honour said further at 672D:

“It follows from the decisions in this jurisdiction of R v Hemsley, R v Kitchener, R v Henning, and like decisions in other jurisdictions such as R v Reid, R v Caldwell and R v Lawrence in the House of Lords, that, where the accused has not considered the question of consent and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused's mental capacity if they had turned their mind to it, the accused is to be taken to have satisfied the requisite mens rea referred to by the word ‘reckless’ in s 61R of the Crimes Act 1900. This would apply to situations where consent has been withdrawn during intercourse where the accused was not continuing with the honest belief that the victim was in fact consenting.”

(Emphasis added to indicate the passage highlighted by Ms Cook in the present case).

Banditt v The Queen

260. In Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80 (Banditt), the appellant was convicted of breaking into and entering a dwelling house and committing a serious indictable offence (sexual intercourse without consent of a sleeping woman, knowing that she was not consenting). At the relevant time, s 61R of the Crimes Act 1900 (NSW) provided:

“[A] person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.”

(Emphasis added.)

261. The trial judge relevantly directed the jury:

“So if you just go ahead and do it willy-nilly, not even considering whether the person is consenting or not, you are reckless and the law says you are deemed to know that the person is not consenting.

...

Now, recklessness is a [failure] to advert to ... the question of whether the person is consenting or not. It does not have to be the product of conscious thought. If the offender does not even consider whether the woman is going to consent or not then that is reckless and he is deemed to know that she is not consenting. If he is aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness. But it is his state of mind that you are obliged to consider and includ[ed] in that is the concept I discussed with you yesterday about the fact that he had had something to drink, just how drunk he was, how much he had sobered up, how capable he was of making this decision and so on.

...

So the Crown relies on [the complainant’s] evidence to say that she was not consenting and the Crown suggests that you will be persuaded beyond reasonable doubt that he either knew, because he penetrated her before she woke up, or he was reckless in the sense that he did not even consider whether she was going to consent or not, or at least he recognised that there was a possibility that she may not consent but he went ahead and did it anyway and the accused['s] case is that he thought she had consented, and he had this belief.”

(Emphasis in the original to indicate the passages which the appellant claimed in this Court and the High Court amounted to a misdirection.)

262. In Banditt, the appellant argued (as noted at [15]) that the trial judge was required to give a further direction: that the appellant was “‘indifferent’ about the risk or determined to have sexual intercourse whether consent was present or not” and submitted that recklessness could not be satisfied by an awareness of the risk but would be satisfied by “a discrete mental state which is, ‘Even if I knew, I would continue. It does not matter to me.’”
263. At [34], the plurality cited the following passage from La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62 (La Fontaine) at 77; [1976] HCA 52, in which Gibbs J said, in the context of the mental element required for murder:

“The purpose of a summing up is not to endeavour to apprise the jury of fine legal distinctions but to explain to them as simply as possible so much of the law as they need to know in order to decide the case before them.”

264. Their Honours considered, at [36] that because the word “recklessness”, in its ordinary use, could indicate conduct which was “negligent or careless” (and thus objectively reckless), which was outside the concept of recklessness in the criminal law, as well as conduct which was “rash or incautious as to consequences” (which is the gravamen of criminal recklessness), trial judges needed to do more than merely use the word “reckless” when directing a jury as to an accused’s mental element in this context.
265. The plurality said at [37] that:

“[T]he trial judge properly emphasised that it was not the reaction of some notional reasonable man but the state of mind of the appellant which the jury was obliged to consider and that this was to be undertaken with regard to the surrounding circumstances, including the past relationship of the parties.”

266. At [38], their Honours accepted the respondent’s submission that the use of “one or more of” the following expressions “may properly be used in explaining what is required by s 61R(1)”. These expressions included:

(1) “recklessly, without caring whether she was a consenting party” ([27], citing Lord Davies in R v Morgan [1975] UKHL 3; [1976] AC 182 (Morgan) at 225);

(2) whether the accused had the “intention of having intercourse, willy-nilly, not caring whether the victim consents or no” (Morgan at 215 (Lord Hailsham)); and

(3) “was D’s attitude one of ‘I could not care less whether she is consenting or not, I am going to have intercourse with her regardless’?” (R v Taylor (1984) 80 Cr App 326 and R v Haughian (1985) 80 Cr App R 334, referred to by Professor John Smith in Smith and Hogan, Criminal Law (10th ed, 2002), page 471).

267. The effect of Banditt is that the jury must be directed that recklessness is, in this context, subjective: that is, it requires consideration of what was in the accused’s mind, not the mind of someone else in the accused’s position. The forms of words authorised by the plurality in Banditt do not draw a distinction between advertent and inadvertent recklessness: rather, the important distinction to be drawn is between subjective and objective recklessness. It follows from what Gibbs J said in La Fontaine that the jury did not need to be told of the former distinction: the trial judge merely needed to direct the jury that the recklessness with which it was concerned was subjective (that is, it concerned what was in the accused’s mind).

Lee v R

268. In Lee v R [2023] NSWCCA 203 (Lee), the appellant appealed against his conviction of sexual touching without consent (s 61KC(a) of the Crimes Act) and sexual intercourse without consent (s 61I of the Crimes Act). Count 2 was alleged to have been committed while the complainant was asleep. At the time of the offending, s 61HE(3)(a), (b) and (c) were in the same form as was applicable in the present case: that is knowledge of lack of consent could be proved if the accused “knows that the alleged victim does not consent”, is reckless as to whether the alleged victim consents”, or “has no reasonable grounds for believing that the alleged victim consents” to the sexual activity.
269. Directions similar to those given in the present case were given in Lee. In Lee, the appellant argued that, as Button J explained at [129]:

“... a person proceeding with sexual intercourse ‘not caring or considering it was irrelevant whether the complainant was consenting’ possesses, in truth, a different state of mind from a person who does not even consider the question of consent at all.”

270. Button J considered the categories of recklessness with respect to the accused’s mental element for unlawful sexual intercourse without consent as:

(1) lack of thought about whether the complainant consents;

(2) foresight of the possibility of lack of consent; and

(3) complete non-advertence to the presence or absence of consent.

271. His Honour then analysed each of these categories by reference to whether they amounted to advertent or inadvertent recklessness or a mixture of both:

“175 ... it was accepted for the applicant that the first mental element described here, ‘he did not even think about whether she consented’ was synonymous with the third category that I call non-advertent recklessness. I agree with that characterisation, believe that what the judge said there was legally correct, and will therefore not discuss it further.

176 As for the second, ‘went ahead not caring, or considering it was irrelevant whether she consented’, it may be accepted that it combines aspects of the second mental element with the third, as follows.

177 On the one hand, it speaks of consideration of something, which has a flavour of turning one’s mind, or advertence, to the question of consent. Less strongly perhaps, ‘not caring’ about something connotes implicitly being aware of it, or adverting to it. On the other hand, the direction speaks of consent or lack thereof being assessed as being simply ‘irrelevant’. That adjective, in my opinion, has something of a flavour of non-advertence to it.

178 In my respectful opinion, minds may legitimately differ whether the compendious clause is synonymous with the second category, or synonymous with the third category, or falls somewhere in between the two of them. An argument could be made, I think, that the combination of terms means that it falls somewhere in between.

179 But the submission for the applicant, as I have shown, was that in truth it was a restatement of the second category of mental element (foresight of possibility of lack of consent), contained within a discussion of the third category (complete non-advertence to the presence or absence of consent).

180 In other words, the applicant did not submit that an extra, erroneous pathway to verdicts of guilty was placed before the jury. On the thesis for the applicant, the second category of the mental element was given to the jury twice, albeit expressed in different words.

181 In those circumstances, it is not easy to see how a miscarriage of justice could have occurred, including but not limited to the asserted diminution in the onus or standard of proof. If there were three mental elements available for the jury to consider (knowledge of lack of consent, foresight of possibility of lack of consent, and complete non-advertence with regard to consent); each of them was explained correctly; and one of them was explained a second time, albeit using different terminology; it is not easy to see how, in any practical sense, the verdicts are built on a wrong foundation. To express that succinctly: it is not easy to see the harm in a correct concept being explained twice, albeit in different ways.”

272. The same argument which was put on behalf of the applicant in the present appeal by reference to Tolmie was also advanced by the appellant in Lee: that is, as Button J put it at [184], “the test for inculpation by way of non-advertence was the accused not having considered the question of consent ‘and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it’”. Button J found that, in Lee, there was “no evidence that could have engaged that exculpatory consideration”. His Honour considered that it could be inferred by his non-objection to the directions that the appellant’s trial counsel considered that “they did no harm to his client in terms of expanding inculpation by way of mental elements for either offence”: [182]. It can be inferred that the reason for such an inference was that it was not suggested that Lee suffered from any mental defect which might have put him in the narrow category envisaged in Kitchener of an accused who does not advert to the question of consent at all.
273. Ms Cook sought to distinguish Lee from the present case by accepting that because the complainant was asleep in Lee, it was obvious that there was a risk that she might not consent and therefore the additional words in Tolmie did not need to form part of the direction. I do not consider there to be any sensible distinction which would require the additional words to be contained in a direction in the present case, when they were not required in Lee. There was no suggestion in either Lee or the present case that the accused was mentally deficient in any way. The jury was appropriately directed that it was his mind which was to be considered. The trial judge in the present case said:

“This is a question about what the accused’s state of mind actually was. It is not a question about what you or anyone else would have known, thought or believed in the circumstances. It is what he knew, thought or believed.”

274. Further, as in Lee, r 4.15 of the Supreme Court (Criminal Appeal) Rules is significant and “the absence of objection to directions can be taken into account as an indication that there was no injustice to the accused in the atmosphere of the trial”: Lee at [84] citing ARS v R [2011] NSWCCA 266 at [148]. The applicant’s trial counsel was, at the time of trial, a very experienced criminal practitioner and barrister. His failure to object to the directions as given is a powerful indication that he thought that they would, as Button J put it in Lee, “d[o] no harm”. Further, in my view, it is also possible that he did not seek the additional words referred to by Kirby P in Tolmie (“where the accused has not considered the question of consent and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it, the accused is to be taken to have satisfied the requisite mens rea referred to by the word ‘reckless’”) because the additional words would have tended to highlight to the jury the obviousness of the risk that the complainant was not consenting. Further these words were used by Kirby P in the context of a consideration of the law; there is no indication whatsoever that his Honour was attempting, in this passage, to formulate a direction to be given to a jury.
275. In conclusion, it is important to draw a distinction between a direction to a jury on the one hand and a consideration of a particular area of substantive law in the course of an appellate court’s reasons for judgment on the other. In the former instance, the trial judge’s task is to “explain to [the jury] as simply as possible so much of the law as they need to know in order to decide the case before them” (La Fontaine). In the latter instance, there is room for drawing and exploring distinctions (as occurred in Kitchener, Tolmie, Banditt and Lee, between advertent and inadvertent recklessness) as part of reasoning towards a conclusion, such as the one reached: that recklessness which is sufficient for knowledge of lack of consent can be advertent or inadvertent or a mixture of both. However, it is not only unnecessary to trouble a jury with distinctions that either do not matter or are difficult to draw precisely (I would put the distinction between so-called advertent and inadvertent recklessness in both categories), but it is also positively detrimental to the goal of explaining relevant concepts to a jury in a comprehensible way. While the authorities, including those referred to above, have addressed advertent and inadvertent recklessness (and found that each is sufficient for the purposes of intention in this context), this distinction is not one which Parliament sought to draw in the legislation.
276. I would refuse leave pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules in respect of ground 2.

Proposed orders

277. I propose the following orders:

(1) Grant leave to appeal on ground 1.

(2) Refuse leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to allow ground 2 as a ground of appeal.

(3) Otherwise dismiss the appeal.

278. WILSON J: I have had the benefit of reading in draft the judgment of Adamson JA. Like the Presiding Judge, having assessed the evidence given at trial, including viewing the CCTV footage, I have concluded that it was open to the jury to be satisfied of the applicant’s guilt of counts 1 and 3 of the indictment. With respect to ground 2, I agree with her Honour’s careful analysis of the law and authorities and with the conclusion she has reached. There was no error in the directions given by the trial judge in the circumstances of this matter.
279. I agree with the orders proposed by Adamson JA for the reasons her Honour has given.
280. FAULKNER J: I agree with the orders proposed by Adamson JA for the reasons her Honour has given.

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Amendments

05 August 2024 - “[sic, the complainant]” inserted after “possibility that the accused” – [258]