R v Jesse Robert Thurlow [2020] NSWDC 850

District Court New South Wales

Medium Neutral Citation: R v Jesse Robert Thurlow [2020] NSWDC 850 Date of orders: 18 September 2020 Decision date: 18 September 2020 Jurisdiction: Criminal Before: H. L. Syme DCJ Decision: Count 1 – Not Guilty Count 2 – Not Guilty Count 4 – Guilty Catchwords: Judge Alone Trial - Reasons on Verdict Legislation Cited: s 61HA(7) Crimes Act 1900 s 293 Criminal Procedure Act Cases Cited: R v XHR [2012] NSWCCA 247 Lazarus v R [2016] NSWCCA 52 Fleming v The Queen [1998] HCA 68 Category: Procedural rulings Parties: Regina (ODPP) Jesse Robert Thurlow Representation: Counsel: Ms S. Sloane (ODPP) Mr A. Goldsworthy (Thurlow)

Solicitor: Ms L. Crase Mr S. Tully File Number(s): 2017/00134143 Publication restriction: Statutory prohibition on publication in relation to identity of the complainant under s578A of the Crimes Act 1900 (NSW)

Judgment CHARGES 1. On the 18th August 2020 the Accused was arraigned on an indictment charging: 1. Counts 1 and 2 - That on the 15th April 2015 he had sexual intercourse with the Complainant, in circumstances of aggravation, in that he was in company with Stefan Arabadzhiyski. He pleaded not guilty to these charges. 2. Count 3 - Between the 20 and 26th April 2017 he engaged in a course of conduct, procuring Brenton Pearce to provide false information with respect to the sexual assault allegations with intent to pervert the course of justice. He pleaded guilty to this charge. 3. Count 4 - Between the 20 and 28th April 2017 he engaged in a course of conduct, procuring Kate Thurlow to provide false information with respect to the sexual assault allegations with intent to pervert the course of justice. He pleaded not guilty to this charge. 1. The allegations relate to a time when the Accused was residing in a share house in Kensington where the Complainant visited on the evening in question. The Accused and the Complainant had not known each other prior that evening. The second Accused, Mr Arabadzhiyski has been charged with similar offences, but the indictment has been separated and the trial before this court only concerned the guilt or otherwise of the Accused, Thurlow. Much of the evidence in the current proceedings will have to be given again in the subsequent trial. PROOF AND ELEMENTS 1. In relation to counts 1 and 2 the Crown must prove beyond reasonable doubt each of the following elements before a finding of guilt can be made: 1. that, at the time and place alleged, the Accused had sexual intercourse with the Complainant; 2. without the Complainant's consent; 3. At the time the sexual intercourse occurred, he was in company with Arababzhiyski; and 4. At the time he knew or was reckless to the lack of consent. 1. There is no dispute that sexual intercourse occurred. The act of sexual intercourse relied on by the Crown is: 1. Count 1: Placing the Complainant's mouth onto the penis of the Co Accused. 2. Count 2: Digital penetration of the complaints vagina. 1. The Accused does not have to prove that the Complainant consented; it is for the Crown to prove beyond reasonable doubt that she did not. 2. In the context of this case, it is suggested that a reasonable possibility exists that the complaint consented by freely and voluntarily agreeing to have sexual intercourse with the Accused and the other person simultaneously. In the context of this case, it is suggested that the consent may have been expressed sometime prior and/ or was expressed by actions. 3. It is acknowledged that, absence of consent does not have to be in words; it also may be communicated in other ways, such as the offering of resistance although this is not necessary. The law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse [s 61HA(7) Crimes Act 1900]. 4. Consent that is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily. This is effectively the defense position. 5. Knowledge about lack of consent is dealt with in s 61HA(3). The Accused knows that a person was not consenting if he or she: 1. knows that the person does not consent; 2. is reckless as to whether the person consents; or 3. has no reasonable grounds for believing that the other person consents. 1. For the purpose of determining knowledge of lack of consent, regard must be had to all the circumstances of the case, including any steps taken by the Accused to ascertain whether the Complainant consented, but excluding any self-induced intoxication on the part of the Accused. The Crown does not have to show the Complainant communicated her lack of consent in order to prove that the Accused knew that the Complainant did not consent (R v XHR [2012] NSWCCA 247). 2. If the Accused honestly believed the Complainant consented, the law requires a test of that belief by asking whether there were reasonable grounds for it in the circumstances of the case. The question is what the Accused might have believed in all the circumstances and the test for belief is asking whether there might have been reasonable grounds for it (Lazarus v R [2016] NSWCCA 52 at [155]). 3. The belief is that of the Accused and not that of the hypothetical reasonable person in the position of the Accused. A reasonable person might conclude one way or the other but the statutory test is whether the Crown has proved the Accused "has no reasonable grounds for believing" that there was consent. 4. The alternative defense position is that the Accused believed on reasonable grounds that the Complainant was consenting. 5. In relation to Count 4 the elements are: 1. That between the dates stated the Accused did an act (in the context of this case, took steps to persuade Kate Thurlow to give a version of events to police which he knew to be untrue); and 2. With intent to pervert the course of justice. 1. The issue is whether the Crown can prove that the Accused , when speaking to Kate Thurlow, asked or encouraged her to make a statement to police which contained falsities, with the intention of avoiding the course of justice , either by altering or hindering the investigation or course of prosecution. It is inherent in the requirements of this charge that the Accused knew the information he was asking Kate to tell police was materially false. JUDGE ALONE TRIAL REQUIREMENTS 1. An order for trial by Judge alone was made on the by me on the 18th August 2020 after application by the Accused, which was opposed by the Crown. The trial was conducted at a time the District Court of NSW was operating under the COVID legislative requirements, and although juries were operating, the anticipated length of the trial (which was exceeded) and in the inherent uncertainty and difficulty then facing the court and litigants, I found it was in the interests of justice, including the administration of justice that the trial proceed in that way. A complicating feature of this trial is that the indictment had been severed so that this Accused and the co Accused's trial were to run separately. This made for complications in negotiating which of the s 293 (Criminal Procedure Act) issues ought be admissible. Part of the events of that evening included a consensual act of sexual activity with the co Accused shortly prior to the event complained of, in which both Accused participated. It was not known until the Accused gave evidence as part of the defense case what his position was to be regarding the events of that night. A further complication was the fact that the Accused pleaded guilty to Count 3 at the commencement of the trial, and the Crown wished to rely on that potentially prejudicial plea, part of its case. 2. Hearing the trial in this way, there are some self-directions I will state for the record. Pursuant to s.132 of the Criminal Procedure Act, a Judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the Accused person and such a finding has, for all purposes, the same effect as a verdict of a jury. The judgment of the Court in such a case must include the principles of law that I, as the Judge, apply and the findings on fact on which I rely. 3. In Fleming v The Queen [1998] HCA 68 (1998); 197 CLR 250 the High Court stated that it is necessary for the Judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and ultimately the verdict that it has reached. 4. I am required, as the trial Judge, to take into account any warning, direction or comment in considering my verdict that any law would require to be given or made to a jury in such circumstances. There are general directions that I must take into account. These are fundamental rules designed to ensure that an Accused person receives a fair trial, according to law. 5. Having brought the charges it is the Crown who bears the onus of proving the charges. The high standard to which such charges must be proved is the standard of beyond reasonable doubt. 6. In order to sustain a conviction for the offences charged, the Crown bears the onus of proving beyond reasonable doubt each element of the offences (see above). 7. In addition to the fundamental principle that the Crown must prove the charges beyond reasonable doubt it is necessary to bear in mind a number of other principles. The Accused is presumed by law to be innocent of the charges brought against him unless and until the evidence satisfies the tribunal of fact that each and every element of the relevant offence has been proved beyond reasonable doubt. 8. If the evidence fails to satisfy the Court beyond reasonable doubt of any or all of the elements of a particular offence charged then the presumption of innocence continues and a verdict of not guilty on that count must be returned. 9. If there is an explanation consistent with the innocence of the Accused of any charge or if the Court is unable in the circumstances to determine whether a particular element has been proved then the Accused must be found not guilty accordingly. The evidence before the Court must be approached with an open and unbiased mind. The Court must proceed logically and rationally without acting capriciously. 10. It is necessary to bring into account in assessing the evidence the common sense of the Court and to deliver any verdict return according to the evidence. It is necessary to recall that the Accused does not have the burden of producing any evidence. The fact that he did so does not alter the burden of proof. He does not have to disprove the Crown case, it is for the prosecution to prove its case and to do so beyond reasonable doubt. The abovementioned principles of law must be applied to the facts as I find them to be. 11. In this case, the Crown case in relation to Counts 1 & 2 is based very largely on the evidence of the Complainant. There was evidence from other Crown witnesses which supported her evidence in relation to the timing of the events, and her presentation immediately after. There was evidence from both Crown and defense witnesses of a sequence of conversations between the Complainant and others. There was evidence from an expert witness about the effect of trauma on memory and the processes of recall and retelling in general, and in general terms gave a possible explanation for a late complaint to police and reasons for a disjointed narrative. 12. The officer in charge gave evidence as to the course of the investigations which included obtaining telephone intercept warrants for the Accused's telephone, thus providing significant evidence of the Accused conversations with relevant witnesses at a time after he became aware of the complaint. The conversations are relevant the Accused's credibility and to counts 3 and 4. 13. However in relation the direct allegations of sexual assault, the Complainant is the sole Crown witness. This is usual in most cases of sexual assault. 14. Scrutiny of the evidence is a necessary role for the Judge of the facts. I accept that it is necessary to be extremely careful in assessing the evidence of the Complainant, as in order to prove the case to the required standard, the Judge must accept her evidence to that standard. She is the primary witness of the charges laid. In assessing her evidence I would enquire whether there is any evidence to support her evidence generally, such what she said in her first complaint, and the versions she gave to others within a short time frame of the complaint being made, and the results of a medical examination conducted shortly after the event. 15. It is necessary to compare the contents of her initial complaint (to the doctor) and her oral evidence to assess her evidence for accuracy, consistency and reliability. It is also necessary to consider the entirety of her evidence in the light of other evidence presented by the Crown and assess whether corroboration exists where corroboration ought properly occur or for inconsistencies, where inconsistencies may raise a doubt as to the reliability of the Crown case. 16. Further, in assessing her evidence I must remain aware that an initial complaint occurred in April 2015, but that no complaint was made to police until some 15 months later, during which time the Complainant spoke to many people about the event its effect upon her. The Accused was not advised of the complaint until 2 years after the alleged event, when he and other witnesses were interviewed by police. 17. Common sense and life experience tell me that it is not uncommon for people caught in really difficult situations to become confused about details such as the order of particular events or to be subtlety or maliciously influenced in their own beliefs and statements. Scrutiny of the Complainant's evidence and the evidence of other witnesses must be undertaken with these considerations in mind. Scrutiny of the Complainant's evidence requires scrutiny of evidence of the people to whom she complained on the first and subsequent occasions and whether their evidence is also honest and accurate and reliable. 18. In the context of this case I must be aware that all the participants are attempting to recall incidents that occurred over 5 years ago, and that on the evening the events occurred, all of them had consumed alcohol to some extent. Some of them perhaps had no particular reason to recall an event, or a particular time frame within which an event occurred. However, in considering defense witnesses it is also important to consider whether corroboration exists where it ought exist in deciding whether evidence is accepted. 19. If inferences are to be drawn from any part of the evidence, I should examine any possible inference to ensure that it is a justifiable inference. Where that inference relates to an element of an offence, I must not draw such an inference unless it is the only rational conclusion. 20. I remind myself that if a conclusion is reached on any charge that the Crown has not proven its case, and the reason is due to a doubt as to the honesty or accuracy of the Complainant's evidence, then I must consider whether that doubt effects a consideration on her honesty or accuracy with respect to the other charge .In the context of this case the issue is consent and/or knowledge. Common evidence is relied upon 21. While acknowledging that the Accused has no obligation to give or call evidence, the fact that he did so does not alter the burden of proof. In assessing his evidence, and the evidence of his witnesses I will keep in mind that he is a person who would not, on his character witnesses' evidence, be expected to behave in the way complained of. He is entitled to this consideration when assessing the Crown case, and his credibility, acknowledging that good character or reputation is not a defense. 22. Observation of the demeanour of witnesses during the course of them giving their evidence is not a determinative factor in an assessment of their credibility or lack of it. Courts with experience in trials know this to be the case. A witness who is nervous in giving evidence may be nervous because they are not telling the truth, and the presentation may be because of that consciousness; or they may be telling the truth and the nervous presentation due to concern that they may be wrongly convicted or their memory may fail; or they may be of usually nervous disposition. A calm or unemotional presentation may be because the witness is an accomplished liar or just as plausibly because the witness is telling a story that is bourn from personal experience. Courts do not have the ability to discern if a witness is telling the truth by observing their demeanour only. It is for that reason the courts are required to scrutinise evidence by comparison with other evidence in the way I have set out above. UNDISPUTED FACTS 1. The following facts are those that now appear not to be in dispute, from the evidence unchallenged at trial: 2. The premises at 80 Barker St Randwick as at the 15th April 2015 was occupied on a share house basis by the Accused, Jesse Thurlow, Stefan Arabadzhiyski (also known as Steve/ Stav) , Kate Thurlow, Isobel O'Brien and Ben Goodman. For ease of reference I will refer to each of them by their first names; 3. On the 15th April 2015 the complainant matched on a dating app, Tinder with Stefan. Stefan collected her from her home and arrived at the Baker St residence at about 9pm. There was a gathering at the home planned. 4. Present at that time they arrived were Kate, Jesse and Brenton Pearce, who was a friend of Jesse. The Complainant recalls others being present. This is disputed. 5. When the complainant arrived, others in the house were playing an Xbox game in the lounge. The group remained in the lounge for some time. The placement and movement of the people in the lounge is disputed. 6. The group moved to the balcony. Some of them sat on the 2 couches situate on the balcony, and or/ stood or sat on the railing. People were moving inside and on the balcony throughout the night. At some time in the evening Kate left the balcony and went to bed. There is some issue at what time she left. 7. Alcohol was consumed by all participants that evening. There is some disagreement as to the level of intoxication of each of them. Brenton and Jesse were drinking "beer bongs". 8. The Complainant and Stefan had consensual sexual connection by the Complainant fellating Stefan in his bedroom (the first occasion). After that event they returned to the balcony. There is no dispute that this was consensual, but some dispute regarding the conversation that occurred prior to it. 9. 2 or 3 younger males were invited by Jesse to join the group on the balcony. One stayed longer than the others. More alcohol was consumed. When the last young man left, Jesse followed him to street level. 10. Brenton and the Accused had a physical interaction at street level downstairs at some stage. It is not agreed when this occurred or to what extent it involved others or the seriousness of it. After this event, the Accused and Brenton returned to the balcony, although it is not agreed in what order and in what circumstances. The Complainant and Stefan occupied the balcony on a couch again. ISSUES IN DISPUTE 1. The circumstances in which the Accused fondled the Complainant's breasts while all 3 were on the balcony. 2. The circumstances in which at some time, all 3 were in Stefan's bedroom, on his bed where sexual activity was engaged in. 3. The circumstances in which the Complainant placed her mouth on Stefan's erect penis, and the Accused digitally penetrated her vagina. OTHER MATTERS TO BE CONSIDERED TO DECIDE WHETHER THE CROWN HAS PROVEN ITS CASE 1. Whether the Complainant said to the group at any time that she was good at giving blow jobs? 2. Whether and in what circumstances the Complainant was behaving in a flirtatious manner towards the Accused? 3. In what circumstances the Accused and Stefan accompanied the complaint on the balcony after the Accused returned from downstairs? 4. Did an incident occur in the toilet and was it significant? 5. Whether the Accused penetrated the complainant's vagina with his penis? 6. In what circumstances did the Accused slap or hit the Complainant during the course of the sexual activity? 7. In what circumstances did the sexual activity stop? 8. In what circumstances did the complaint leave the house? 9. Did the Complainant complain about the event shortly after it, and do those complaints support her credibility? PERVERT THE COURSE OF JUSTICE MATTERS IN ISSUE 1. What was the purpose of the meeting on the 20th April 2017? 2. Did the Accused request or encourage Kate Thurlow to lie to police in her statement? 3. Did he know what he was asking her to tell police was false? 1. An ancillary but not determinative consideration is whether Kate Thurlow told an untruth (knowingly or not) in her police statement?