Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Agnew v R [2024] NSWCCA 5 Hearing dates: 18 October 2023 Date of orders: 9 February 2024 Decision date: 09 February 2024 Before: Price J at [1]; Lonergan J at [178]; Dhanji J at [179] Decision: (1) Grant the applicant an extension of time within which to seek leave to appeal against his convictions. (2) Grant the applicant leave to appeal. (3) Dismiss the appeal. Catchwords: CRIME – Appeals – Appeal against conviction – two counts of sexual intercourse without consent – whether trial judge failed to properly direct the jury on all the elements of the offence – concession by the applicant's trial counsel that there was no issue as to consent or knowledge of lack of consent – no request for further directions at trial – whether further directions were required – whether miscarriage of justice – whether verdicts were unsafe and unsatisfactory – inconsistencies in evidence of Crown witnesses – whether complainant had motive to fabricate her evidence – whether inconsistencies and discrepancies lead to the conclusion that the jury acting rationally ought to have entertained a reasonable doubt Legislation Cited: Crimes Act 1900 (NSW), s 61I Criminal Appeal Act 1912 (NSW), s 5(1) Evidence Act 1995 (NSW), s 165 Cases Cited: Aravena v R (2015) 90 NSWLR 258; [2015] NSWCCA 288 Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 Hargraves v The Queen (2011) 195 CLR 257; [2011] HCA 44 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Category: Principal judgment Parties: Gregory Agnew (Applicant) Rex (Respondent) Representation: Counsel: S Kluss (Applicant) E Nicholson (Respondent) Solicitors: RHA Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2019/136166 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; Children (Criminal Proceedings) Act 1987 (NSW), s 15A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 01 June 2021 Before: McLennan SC DCJ File Number(s): 2019/136166 HEADNOTE [This headnote is not to be read as part of the judgment] Gregory James Agnew ('the applicant') sought leave to appeal against his convictions for two sexual offences involving the complainant, LW, following a trial by jury before McLennan SC DCJ. Each of the offences were alleged to have been committed on the evening of 24 November 2018 when the complainant was 16 years old and staying overnight at a friend's caravan in Kyogle. On 1 June 2021, the applicant was found guilty of two counts of sexual intercourse without consent. The applicant's case at trial was that the sexual offending did not occur at all. During the course of the trial, the applicant's counsel accepted that there was no issue as to consent or knowledge of lack of consent; the applicant's trial counsel agreed that if the complainant's evidence was accepted, all elements of the offences would be satisfied. On appeal, the applicant's case was that the judge had erred in his summing up by deflecting the jury's consideration of the elements of consent and the applicant's knowledge of lack of consent. Further, the applicant contended that on examination of the whole of the evidence (including inconsistencies), the jury's verdict was unsafe. Price J held, (Lonergan and Dhanji JJ agreeing), dismissing the appeal: As to the judge's directions: The judge did not err in directions given to the jury regarding the element of consent. His Honour correctly acted on concessions of the applicant's trial counsel that "there is no issue as to consent or knowledge of consent". A trial judge's responsibility is to decide "what are the real issues in the case", to "tell the jury what those issues are", and to "instruct the jury on so much of the law as the jury needs to know to decide those issues". This is what his Honour did. The trial judge instructed the jury on each of the elements of the offence but told the jury that there was no issue as to the elements of consent or actual knowledge of lack of consent or recklessness. Aravena v R (2015) 90 NSWLR 258; [2015] NSWCCA 288; Hargraves v The Queen (2011) 195 CLR 257; [2011] HCA 44; Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, referred to. As to the verdict being unsafe: It was open to the jury to be satisfied that the complainant's evidence of the sexual assaults by the applicant was both honest and reliable. Furthermore, the jury was not obliged to have a doubt about the complainant's credibility because of the divergence in the account of another witness. The trial judge provided the jury a warning under s 165 of the Evidence Act 1995 (NSW) regarding Mr Wood's evidence being unreliable. Therefore, it was open to the jury to reject Mr Wood's evidence which was inconsistent with that of the complainant. The differences in the evidence were not such as to have required the jury to have a reasonable doubt. The jury was well placed to assess all of the evidence and reach its verdicts. It is not a reasonable possibility that the jury acting rationally ought to have entertained a reasonable doubt. Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7; Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, referred to. JUDGMENT 1. PRICE J: On 1 June 2021, Gregory James Agnew (the applicant) was found guilty of two counts on an indictment of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). 2. The trial commenced before the jury on 25 May 2021 and the jury retired to consider their verdict on 1 June 2021. On the same day, the jury returned with unanimous verdicts of guilty. 3. The applicant appeals against his conviction upon the following grounds: 1. His Honour erred by deflecting the jury's consideration of the element of the offences referrable to the knowledge of the accused. 2. The verdicts of the jury are unsafe and unsatisfactory. 1. Both grounds of appeal require leave pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). Furthermore, leave is required as the appeal was filed out of time. The Crown did not oppose an extension of time being granted. It appears that the progress of the appeal was impeded by the Lismore floods. 2. Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applies to ground 1 as no objection was made by the applicant's trial counsel to the directions that his Honour gave to the jury. 3. It is convenient to deal with the grounds separately. For the purpose of ground 1, a summary of the circumstances of the offending will suffice. Ground 1: His Honour erred by deflecting the jury's consideration of the element of the offences referable to the knowledge of the accused. A summary of the complainant's evidence of the offending 1. The complainant, who was 16 years of age at the time, gave evidence of meeting the applicant on the evening of Friday, 24 November 2018. She was alone at Kristine Weston's caravan. The applicant came to the door looking for Kristine Weston. Although the complainant had not initially recognised the applicant, she realised while speaking to him that he had fixed her father's motorbike. 2. The applicant and the complainant talked about motorcycles and the complainant told him she would like to become a mechanic. He told her there was an apprenticeship open at his shop. He offered for her to come up, have something to eat and look at the motorbikes. 3. Later that night, the applicant attended the caravan, picked up the complainant and took her to the motorbike workshop. 4. The complainant looked around the main room and then sat on chairs near the kitchen. They talked about motorbikes. After a while the applicant offered the complainant a can of Canadian Club which she accepted. The complainant took photographs on her phone at this time. Exhibit A included four photos of the complainant which were time stamped between 11:58pm on 24 November 2018 and 1:57am on 25 November 2018. The complainant only remembered taking the one first in time. 5. The applicant also consumed a can of Canadian Club. The complainant also used a bong to smoke some cannabis she had in her possession. 6. The applicant then asked the complainant if she wanted some cocaine. She told him she did not, but he was very persistent. She said she was feeling pressured into it and had some. The applicant took a small resealable bag of cocaine out of his pocket, used his Medicare card to make up two lines on the kitchen bench then rolled up a $5 note and snorted the first line. The complainant then snorted the second line. They returned to the seats and talked some more. The complainant started to feel the effects of the cocaine, including that her vision was fading in and out. She thought she consumed cocaine again two more times after that first time. 7. Straight after that, the applicant grabbed the complainant around the waist and picked her up. She said, "what the fuck?". There had not been any discussion to suggest such contact was acceptable or likely, or about having any sort of sexual contact that evening. 8. When the complainant's feet left the ground, she wrapped her legs around the applicant to stop feeling like she was falling, because she was afraid of heights and the effects of the drugs made her feel like she was higher up than she was. 9. The applicant then threw the complainant on her back on the bed, with her feet hanging off. The applicant took off her pants and underwear and threw them on the floor. The complainant could not remember whether she said anything to the applicant at this stage; she was frozen and in shock and barely understood what was happening. The applicant's hands were on her legs, pinning them and spreading them apart. He put his tongue on her clitoris. There had been no discussion previously about this activity taking place. The complainant did not know how long this went on for. 10. The applicant then grabbed the complainant's legs and bent them up to her shoulders. He then put his penis into her vagina and moved it vigorously. There had been no discussion previously about the applicant doing that. The complainant was frozen in shock. She did not know how long this went on for; she was "blanking in and out" the whole time. She did not know if the applicant ejaculated. She never saw him put on a condom. 11. She heard a knock on the roller door. The applicant grabbed her clothes and threw them at her. He told her to put them on and sit back in her seat, which she did. A summary of the applicant's denial of the offending 1. The applicant neither gave evidence during the trial nor did he call any witnesses in his case. He participated in an electronically recorded interview (ERISP) on 14 December 2018. He was then 39 years old. The ERISP was played to the jury. 2. During the ERISP, he was asked: Q 73: "… and after she'd consumed a considerable amount of, um, of cocaine, that she started to become ill and sick, and that while she was there, alone with you, um, you have removed her pants and you had sexual intercourse with her –" A: "Yeah, that's –" Q 74: "-- against her will." A: "-- bull-shit. That's bull-shit, mate." [1] 1. The applicant's case at trial was that there had not been any sexual intercourse or sexual conduct at all with the complainant. It was his case that the complainant had arrived at the shed about 9:30pm and had gone home at about 4:00am. She was talking the whole time and had neither consumed alcohol nor cocaine. However, she was drug affected when she arrived. A discussion between the trial judge and the applicant's counsel 1. Before the commencement of closing addresses and in the absence of the jury, the trial judge canvassed with the applicant's trial counsel the issues in the trial in the following exchange: "HIS HONOUR: If the parties wouldn't mind, could I just raise some things which seem to me to be matters which need to be the subject of directions, and then I'll hear what, if anything else, either of you wish to say about all that. Putting aside, of course, the standard directions concerning the elements of the offence, Ms Cusack, is it reasonable to say to the jury, after I've been through all the necessary directions concerning the law, that if the complainant's account as to what happened in the shed concerning the sexual assaults is accepted beyond a reasonable doubt, then the parties agree that the Crown will have proved its case? [APPLICANT'S TRIAL COUNSEL]: Yes, your Honour. There is no issue as to consent or knowledge of consent. HIS HONOUR: No, I appreciate that, thanks. I still have to go through all of that even though the issue is whether it did, or it didn't happen. I just wanted to see whether you'd be mounting some alternative series of arguments." [2] The elements of the offence 1. As ground 1 directs attention to the elements of the offence, it is important to state them. The offences were committed prior to 1 June 2022 and the legislative amendments introduced by the Crimes Legislation Amendment Act (Sexual Consent Reforms) Act 2021 do not apply. 2. The applicant was charged with sexual intercourse without consent knowing that the complainant was not consenting. 3. The Crown was required to prove beyond reasonable doubt each of the three elements of the offence: 1. That on 24 November 2018, the applicant had sexual intercourse with the complainant; 2. Without the complainant's consent; and 3. Knowing that the complainant did not consent. 1. In the exchange quoted at [21] above, the applicant's trial counsel agreed that if the jury accepted the complainant's evidence beyond reasonable doubt, the Crown had established all the elements of the offences. Submissions The applicant's submissions 1. The applicant referred to various passages (with emphasis added by the applicant's counsel) of the trial judge's summing up. The first passage was as follows: "… As I have said, the Crown must prove the charges beyond reasonable doubt and in a practical sense that means satisfying you beyond reasonable doubt that the complainant has given you an honest account and an accurate account of what happened in the maintenance shed as far as the sexual intercourse is concerned. So, the real issue is, did either or both of those acts of intercourse take place. Are you satisfied of that beyond reasonable doubt. If you are so satisfied, then you may think it is a short step to conclude that there was no consent and that the accused knew that or was reckless concerning that." 1. The second passage was: "The Crown must prove beyond reasonable doubt the fact of sexual intercourse, they must prove beyond reasonable doubt that it occurred without the consent of [the complainant] and lastly, they must prove that the accused knew that [the complainant] was not consenting, that is, freely and voluntarily agree to the sexual activity. As far as knowledge about the lack of consent is concerned, a person who without the consent of the other person engages in a sexual activity with the other person is said to know the other person does not consent to the sexual activity if the person actually knows that the other person does not consent to the sexual activity or the person is reckless as to whether the alleged victim consents to the sexual activity. As far as recklessness is concerned the Crown can prove that if they establish beyond reasonable doubt that the accused's state of mind was such that he simply failed to consider whether or not the complainant was consenting at all and just went ahead with the act of sexual intercourse even though the risk that the complainant was not consenting would have been obvious to someone with the accused's mental capacity if he had turned his mind to it or the accused's state of mind was such that he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not. For the purposes of making any such finding concerning the accused's knowledge you must have regard to all the circumstances of the case including any steps taken by the person to ascertain whether the other person consents to the sexual activity and a person who does not offer actual physical resistance to a sexual activity is not by reason only of that fact to be regarded as consenting to the sexual activity. It is necessary for me to have said all of that to you members of the jury because the law requires that I do and because you are the people who have to bring in the verdict in this case even though as I have said, the approach of both parties is simply this. If you are satisfied beyond reasonable doubt as to the honesty and accuracy of the complainant's account, the Crown will prove its case. If you are not, then the accused must be acquitted." 1. The third passage was: "She was not specifically asked the direct question, "Did you freely and voluntarily agree to what was happening" but the Crown asked you to infer from all of the circumstances that she did not and as I have said, there is no contest as far as the defence are concerned and if you accept that version of events beyond reasonable doubt it would satisfy you that she was not consenting." 1. The fourth passage was: "Likewise, looking into an accused's state of mind, that is, whether they knew something or whether they were reckless about something, depends upon the drawing of inferences including all the circumstances that surround a particular event including in this particular case on the complainant's version that there was no prior conversation about whether sex should take place or not and rather she was just picked up and thrown on the bed. Again, the position that both parties are [sic] if you accept her evidence beyond reasonable doubt then the element of knowledge whether it be actual knowledge or recklessness will be established beyond reasonable doubt." 1. The fifth passage was: "He said to you at the very end something which I need to direct you about in the circumstances of this particular case. Mr Crown submitted to you that you would be satisfied beyond reasonable doubt after you had considered all of the evidence that the complainant had no capacity to consent and that the accused knew that she did not have such capacity. Members of the jury, that was a slip on the part of the Crown because you would appreciate it's never been the position that the complainant did not have the capacity to consent, the position was that as a matter of fact she did not consent, there is no evidence that she had no capacity to consent. There's no evidence from the complainant to that effect, there's no evidence from anybody who might have some appropriate level of expertise to give you an opinion as to whether the drugs that she had consumed robbed her of her capacity to consent. So, don't be misled into an inquiry into that issue, because that's not what this case is about. The case is whether or not she did consent or not consent in fact the parties agree that if you accept her account you would be satisfied beyond reasonable doubt that she did not consent and the real issue in the trial as I've said is whether you're satisfied beyond reasonable doubt that there was sexual intercourse at all and if you are, the other elements of the offence are not really being put in dispute by the defence and both party's approach is that if you are satisfied beyond reasonable doubt of the truthfulness and accuracy of [the complainant's] account then you would be satisfied of all the elements of the offence." 1. The applicant submitted that his Honour's "short step" in the first underlined passage ignored the evidence relevant to the third element of the offences and the fact that the complainant at no time communicated any lack of consent to the applicant. The applicant further submitted that the underlined passages in the other parts of the summing up that have been quoted deflected the jury from the task of assessing the sufficiency of the evidence as to the third element of the offences. 2. The applicant contended the applicant's defence that there was no sexual encounter did not absolve the trial judge from identifying the evidence relevant to the third element and that the jury needed to be satisfied that the applicant did not know the complainant was not consenting. 3. Ms Kluss, who appeared for the applicant in this Court, pointed out that there was no evidence given by the complainant that she did not consent and no evidence of a conversation between her and the applicant at the relevant time. Ms Kluss also referred to the complainant's evidence that she wrapped her legs around him. Ms Kluss argued that this material should have been brought to the attention of the jury by the trial judge for their assessment of the third element of the offences. 4. A further submission was that his Honour's directions "completely synthesised a direct oppositional position of the [applicant] and the complainant, much that it became a choice between the versions, as offered to the jury scrutinising whether or not there may have been an alternative explanation in relation to what had occurred". [3] 5. The applicant's written submissions referred to the following evidence of Acting Sergeant McCormack who spoke to the complainant on 30 November 2018: "'[Complainant], when did this assault take place?' 'At Lucky's shed on Friday 23 November 2018 about 9pm." I said, 'Did you have sexual intercourse with Lucky?' she said, 'Yes.' 'Did you give him permission to have sex with you?' she made no reply, I said, 'Did you want the sex to happen?' she shook her head in a way she indicated no." Question, "Did he force himself on you?", [The complainant] made no reply, he then asked, 'Did he offer you anything for sex or threaten you in any way?' to which [the complainant's] sister [EW] said, 'Drugs.' "Mr McCormack's said, "What sort of drugs", [the complainant] said, "Cocaine, I don't want to talk anymore." Acting Sergeant McCormack as he was when he gave evidence said that the complainant appeared very nervous, she was kicking through the dirt with her bare feet, she kept burying her head into her sister's shoulder and whenever she looked towards the police she appeared to be smirking, which he described as being her lips coming up into a bit of a smile type thing." [4] 1. The applicant contended that this evidence inferred "a transactional quality to the sex that the complainant alleged and boded against her informing the [applicant] by word or deed of a lack of consent". [5] The Crown's submissions 1. The Crown submitted that the trial judge neither deflected nor minimised the jury's consideration of the third element of the offence. The Crown pointed out that the trial judge correctly directed the jury about each element of the offence, which included a direction about the law regarding knowledge of absence of consent, including recklessness. 2. The Crown contended that the trial judge did no more than, consistent with his duty, clearly identify for the jury what the "real issues" in the trial were, and the issues that were not in dispute or challenged consistently with the way that the trial had been conducted by the parties. Having regard to the summing up as a whole, the jury would have understood that it was required to be satisfied beyond reasonable doubt of each of the three elements of the offence. 3. Ms Nicholson, who appeared for the Crown in this Court, submitted it was very clear that the trial had been conducted on the basis that sexual intercourse had not occurred. The applicant's trial counsel did not, Ms Nicholson said, cross-examine the complainant about any consensual or transactional intercourse that may have occurred. 4. Ms Nicholson stated that the effect of the applicant's submission was that the trial judge should have directed "more fulsomely". [6] Ms Nicholson argued that had the trial judge done so, the jury would have been confused, "in circumstances where there had not been any suggestion by any party of those matters being at issue in the trial". [7] 5. A further submission was that if the applicant's arguments are accepted, no court could act on the concession of trial counsel. Consideration 1. As noted at [5] above, r 4.15 applies to ground 1 as the applicant's trial counsel, who had been consulted about the directions to be made, took no objection to any of the matters that are now raised on appeal. This provides "cogent evidence" that trial counsel "absorbed in the atmosphere of the trial saw no injustice or error in what was done". [8] 2. It would have been surprising if trial counsel had raised an objection or saw the need for further directions, as the applicant's case was that he did not have sexual intercourse at all with the complainant. It was not his case that the complainant had consensual sexual intercourse with him or that the intercourse was transactional. The applicant denied giving the complainant drugs. 3. The discussion between the trial judge and the applicant's trial counsel plainly reveals that the sole issue in the trial was whether the jury could be satisfied beyond reasonable doubt that the complainant's evidence of sexual intercourse was honest and reliable. The applicant accepted that if the jury found that it was, it followed that the jury would be satisfied beyond reasonable doubt of the second and third elements of the offence. 4. A trial judge's responsibility is to decide "what are the real issues in the case", to "tell the jury what those issues are", and to "instruct the jury on so much of the law as the jury needs to know to decide those issues". [9] This is what his Honour did. 5. The trial judge instructed the jury on each of the elements of the offence but told the jury that there was no issue as to the elements of consent or actual knowledge of lack of consent or recklessness. As Edelman J observed in Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 ('Kalbasi') at [149]: "That was the direction properly given in relation to the first element – identity – where the jury was told that there was no issue that the relevant person was Mr Kalbasi. Such directions are common, efficient, and proper. They reflect the manner in which the trial was run. The element of the offence remains for the jury to determine but the jury is encouraged not to waste any time discussing an element which is not in issue... It will rarely, if ever, be a miscarriage of justice for a trial judge not to direct a jury about an element of an offence that is not in dispute in the trial." (Footnotes omitted.) 1. Furthermore, as the plurality (Kiefel CJ, Bell, Keane and Gordon JJ) explained in Kalbasi at [58]: "In a trial where no issue arises as to proof of a particular element of the offence charged, and the accused through his or her counsel consents to the removal of that element from the jury's consideration, then it may be that no miscarriage of justice at all will have occurred because of that removal." [10] 1. The trial judge cannot be reasonably criticised for acting on the concessions made by the applicant's trial counsel. His Honour instructed the jury on all the elements of the offence and directed their attention to the critical issue in the trial which reflected the way the trial was run. His Honour was not required to do more. There was no miscarriage of justice occasioned by giving the directions the subject of ground 1. 2. I would dismiss ground 1 of the appeal. Ground 2: The verdicts of the jury are unsafe and unsatisfactory. 1. For the purpose of considering ground 2, it is necessary to further summarise the evidence. A further summary of the complainant's evidence 1. In addition to the summary at [7]-[17] above, the complainant said that after she put her clothes back on and sat back in her seat, the applicant then answered the door. A man who she had not met before came in. He introduced himself as "Wood Duck". Everything after that was a blur. The next memory was being in Kristine Weston's ('Krissy') caravan. It would have been early morning. Britney Weston and Krissy were there. 2. She was feeling "pretty fucked up". She was still very sensitive to light; her vision was still blurry; and her vagina was quite sore. The soreness lasted a couple of hours. 3. She didn't tell Krissy or Britney anything about what had happened. She told them that she had drugs in her system. She stayed at the caravan for at least two or three days as it took her that long to "get her grips together". She was experiencing waves of depression and was not feeling herself. The effects of the cocaine took a while to fade away. She had not used cocaine before. 4. The complainant said she told no one about what had occurred until her father came home from being in Kyogle one day. Someone had told him what happened. He said "I've been told something's happened off one of the elders in town. What happened?". [11] He said he knew it had something to do with the applicant. 5. She told him she went up to the applicant's place to look at the motorbikes, that she got pressured into taking a drug and some "bad shit" happened afterwards. She told him that she was raped. 6. The police arrived at the property maybe an hour afterwards. She did not tell them what had happened as she didn't feel comfortable. She talked to a counsellor at Indigo House who she was seeing at the time. She made her statement to police on 17 December 2018. She was pressured into making it by her parents. A summary of the complainant's cross-examination 1. In cross-examination the complainant said she had never met Wood Duck before. 2. The complainant had been to the applicant's work shed before, although not inside, when her father had stopped there briefly to say hello to the applicant. This happened maybe five or six times. 3. The complainant agreed that the applicant had said something like, if she wanted to get away from the park she could come down to his shed and he could shout her a pizza (or a feed, in her head they were the same thing). She denied walking to the shed later by herself. The applicant picked her up in the car, either beeping the horn or calling her name; he did not come up to Krissy's caravan. When they got to the shed the applicant gave her a tour, including the living area, the main area with the motorbikes he was working on, and a workshop area upstairs with bike parts. 4. The complainant disagreed that: * the applicant never offered her an apprenticeship; * the applicant said that if she was going to hang around she could give him a hand and be his apprentice for the night; * the applicant got the Canadian Club out of the fridge – he got it out of his backpack; * the applicant never offered or gave her a Canadian Club; * the applicant went to the main area where the bikes were (rather than the living area) and was working on the bikes that night – although he did start the engines up; * she went to the living area after the tour and the applicant started working on the bikes; and * she was not affected by anything when Wood Duck turned up. 1. The complainant did not remember any conversation with Wood Duck apart from his introduction. She did not remember talking with him about bikes. When the complainant was smoking her cannabis, she finished it off, smoking about two or three cones, one after the other. She felt normal, just the same as she did before she had them. She usually smoked 1-2 grams ($20-$50 worth) of cannabis a week. She did not have an ice pipe when Wood Duck introduced himself, or later tell anyone she had had "ice" at the shed; she had never touched "ice". She had not had amphetamines before she went to the shed. She denied having ever tried any other drug apart from cannabis before this incident. 2. When asked about her police statement, in particular when exactly she stopped remembering events (e.g. whether it was after meeting Wood Duck, after doing two more lines in the kitchen, after taking the first picture on her phone), the complainant said the police asked a lot of questions, she would answer and be done, then she would be asked another "million questions about that thing" and then "remember more and more" and that might be why the statement might not make sense. She agreed she had to go into the Snapchat app to use it when she took the photos, and she had to choose to insert text or a filter. 3. The complainant did not tell Britney the next morning that she had had sex for drugs. When her father spoke to her a week or two later, he said something along the lines that he had heard she had had sex for drugs. She did not remember, when first speaking with the police, her sister answering "drugs" when they asked if the applicant had offered her anything for sex or threatened her. 4. The complainant denied ever hearing her father say that if the applicant gave her family a couple of Harleys it would all go away, or that she said to a person she knew, Leonie Scott, that she was going to get a big payout because the applicant had raped her. She denied that her mother told her that the applicant had been to her home and said that the complainant had been over at his shed and had pizza. 5. The complainant agreed that police had spoken to her on 4 November 2019 about her then-partner apparently having seen a video of the incident on the dark web. She told police she did not want to talk about it and when they asked to speak with her partner, she said that "he was asleep and hated talking to coppers". She agreed she was reluctant to help police in that conversation, although there was more to it than she wanted to talk about. The complainant disagreed that the applicant never picked her up, put her on the bed and sexually assaulted her. A summary of Trevor Wood's evidence 1. Trevor Wood gave evidence that in 2018 he lived in Kyogle. He stayed at the caravan park with a friend. He had previously finished a rehabilitation program at Tabulam and had worked as a general labourer and motor mechanic. Through word of mouth, he heard about the applicant and saw him at his shed. The applicant gave him a job there straight away, although he only ended up working there for about 2-3 weeks. The applicant had his own office there, with a bed. 2. After starting the job, Mr Wood lived at the shed, sleeping on the bed in the living area. Some nights he stayed at the caravan park, but mostly he stayed in the shed. The applicant lived with his wife at a different premises. The roller doors were secured on the outside with padlocks. Mr Wood did not have keys and he would only access the shed if the applicant was there. He would bang on the roller door and the applicant would let him in. 3. On the night of 24 November 2018, Mr Wood had visited his friend at the caravan park and returned to the shed. He banged on the left-hand side roller door, which was down but did not have a padlock on it. He said his name and asked to come in but he was told to come back later. The voice was that of the applicant. Mr Wood left and returned to the caravan park. A few hours later, he returned to the shed. The roller door was still down with no padlock. He knocked again, the applicant asked who it was, he replied "it's Woodsy". The applicant said he could come in. The roller door was unlocked so he walked in and closed it behind him. 4. Inside Mr Wood saw the applicant and a young girl sitting on chairs and talking. The girl was tall, skinny and blonde and was smoking an ice pipe. She appeared to be about 14-15 years old. Mr Wood had smoked "ice" in the past and whilst he did not check what the substance in the pipe was, he knew because of his prior knowledge. Mr Wood did not know the girl but had seen her before. During the night, he realised she was IW's daughter. 5. Mr Wood got a cold drink from the fridge and listened to the complainant and the applicant talking. He said the complainant was "off her head on drugs. She was slurring her voice when we were talking and just getting real fidgety". Later he left them to lock up the shed. When he returned to go to bed, the applicant and the complainant were gone. Mr Wood went to sleep but was woken up by the applicant, who said, "go and have a crack at that", and pointed over his shoulder, back towards the room. 6. Mr Wood went into the applicant's room and saw "a scattered little girl" laying on her back on the corner of the bed. He said that "scattered" meant "her eyes were dazed, dazed all over the place and she's just mumbling, mumbling to herself, no sense really". 7. The complainant had a top and nothing on the bottom part of her. Her pants were on the floor beside the bed. He told her to put her pants on, which she did. He tried to talk to her to get her to come back to reality, as her eyes were twisting and turning, but she was not really able to engage in conversation. He told her he was going to get her out of there; she was starting to come back to reality. She did not say what had happened. 8. When she was dressed, he walked straight out with her, back to the caravan park. They had been in the applicant's room for about 20-30 minutes. He did not see the applicant as they walked out. She said she would contact her father to come and get her. There were a lot of people in the park – it was daylight – so he left her there. She still seemed under the influence of drugs but co-ordinated enough for him to leave her there. 9. Some days later, the applicant told him that they were being accused of raping the complainant. The applicant was quite cranky about the allegation. Mr Wood told him he wanted nothing more to do with it and left Kyogle soon afterwards. 10. In cross-examination, Mr Wood denied still using methamphetamine after being released from the rehabilitation program. He had previously been charged with drug-related offences. The drugs in question being methamphetamine and marijuana, and he knew what an ice pipe was. Mr Wood started using methamphetamine in his teens and was aged 54 at the time of the trial. He had committed various offences over the years to support his drug habit, including dishonesty offences. 11. After leaving the program, he mostly stayed at the caravan park. There were people using drugs there and he tried to stay off the drugs. He was pretty successful and was quite happy with himself. When he was sentenced in May 2019 at the Local Court in Lismore, he told the magistrate that for the first time in his life he was drug-free. He denied he was lying to the court. He agreed the magistrate took into account that he had been drug-free for nearly 12 months. Also at that sentencing, Detective Hoffman provided a letter of assistance, which was referred to in the magistrate's judgment. He agreed he was sentenced to a Community Corrections Order and not gaol. 12. Mr Wood denied that he, the complainant, and the applicant all left the shed at the same time, or that he never saw the complainant on the applicant's bed. He did not see the applicant after seeing the complainant on the bed. He did not see the complainant snorting anything through a bill. He thought she was smoking "ice" but it could have been something else. The pipe was being passed back and forth between the complainant and the applicant. He had not mentioned that before, as nobody had asked him. Mr Wood noted that different people have different reactions to "ice". Some people start to drift off, their eyes can swirl like they are in a different world inside their head, sometimes it does strange things to their mental health, sometimes they become quite fidgety, sometimes they become slow. After smoking from the ice pipe, the complainant seemed like she was lost within her thoughts, and her speech was slurred. She continued to talk for some time. 13. Mr Wood left the shed when it was daylight, not afternoon but not first light. He had seen IW, the complainant's father, at the shed before. He did not see IW that morning. He did not recall being told by IW that they were trying to get a Harley out of the applicant, but he did hear something along those lines at one stage. 14. In April 2019, Mr Wood made some calls to the applicant on the instigation of police, to try to get the applicant to confess to something, while sticking as close to the truth as possible. He agreed to do it because he knew he had done nothing wrong. During the phone calls he did not accuse the applicant of anything or suggest to the applicant that he had left the complainant in the room with no clothes on. 15. The transcript of the phone call of 24 April 2019 was tendered (Exhibit 5) and included: "W: Well the first part of the story was they were going to fuckin' try and get Harleys and shit out of you … Remember that? A: Yeah. W: You know like if a rape's a rape, that's one thing, but then the first part of the story was that they were going to try to con you into fuckin' given them Harleys to keep quite or some shit. A: Yeah, it's all a fuckin' con mate. W: A big scam." 1. The transcript of the phone call of 28 April 2019 was tendered (Exhibit 6) and included: "W: Ah, they got me, the coppers … they got me for questioning and DNA … on the fuckin' rape in Kyogle … … W: They haven't charged me with nothing, as yet they reckon … So they reckon they'll let me know, so I'm fuckin thinking about just fuckin' disappearing. A: yeah well, its bullshit anyway … … W: …they were just saying like with that night, with that girl and shit, they were saying oh they know she arrived at the shed at this time and she left with me at the shed at this time and fuckin' so I just agreed with anything … all I remember is fuckin' I was on drugs and shit … And she was, you know, acting up and shit … … A: Yeah, right, so. Yeah what are they trying to implicate me are they? W: Yeah, oh yeah, they kept bringing your name up … they know that you and me were at the shed that night with her … and I said I was fuckin' working in bikes and shit and then in the early hours of the morning I see her again, she's off her head and I've walked her out, I walked her down to the park … And then they said did I rape her? And I said no, no I didn't rape her, I'll give you me DNA. A: Yeah, and they asked about me as well did they? W: Yeah, and I said fuckin' well, you know what he, whether he did or not, I didn't see him do it, you know and that's the truth to the whole matter. A: Yeah. W: You know fuckin' I'm looking at fuckin' three years gaol as it is, let alone this fuckin' shit coming down on top of us. A: Yeah, fuck. Yeah and fuckin', they've been clutching at fuckin' straws … that's what they're trying to do, just trying to fuckin', they've been trying to sink me for fuckin', so now they're going to even try and stoop so low as this fuckin' shit …" 1. When he said he had been on drugs that night, Mr Wood had meant alcohol; he had a few cans of Jim Beam. He was not drunk. He did not supply any drugs to the complainant on that night. After that night but before he left Kyogle, Mr Wood heard a rumour about him being involved in something. 2. In re-examination Mr Wood noted that he met with Detective Hoffman on 28 February 2019. He told police in a signed statement all the things he told the court in evidence. He did not see the applicant working on bikes that night. He never had a conversation with the complainant or a member of her family about trying to get Harleys out of the applicant. A summary of Kristine Weston's evidence 1. Kristine Weston gave evidence she was living at the Kyogle caravan park in 2018. Her daughter Britney would sometimes stay with her. She met the complainant when the complainant was about 14-15 years old, as she was friends with her daughter. On one occasion the complainant came to her caravan "white as ghost". She asked the complainant what had happened. The complainant replied that she had had five lines of pure "ice" and that some bloke held her down. 2. The complainant was crying and looked very scared. She said it had happened at the shed. She mentioned the applicant's name and said there had been another bloke present, and it was the other bloke who held her down. The complainant was not herself; she was lethargic and not very talkative and was mumbling when she spoke. Ms Weston tried to keep her awake and comfort and rehydrate her because she was afraid the complainant would slip into a coma. 3. The complainant stayed with her for about 3-4 days. She slowly started to improve. Sometimes she would get up and move or go outside to the shops for 5-10 minutes. Previously the only illicit substance she had seen the complainant use was marijuana, every now and again. 4. In cross-examination Ms Weston agreed that the first time she was spoken to by the police about the matter was on 5 July 2019, when she was in the police cells at Kyogle Police Station after being sentenced on a term of imprisonment for two offences of doing an act with intent to pervert the course of justice. Prior to that, she had heard rumours about a particular scenario involving the applicant and the complainant. Ms Weston had no recollection of the complainant being at her caravan the night before she turned up on that particular morning. 5. In 2012, 2016, and 2017 Ms Weston had been convicted of a number of dishonesty and public justice offences. In July 2019 she was sentenced to a term of imprisonment, which was overturned on appeal, but before that occurred she was in custody for three months. 6. In re-examination she noted that because neither she nor Britney could read well due to a disability, they had both helped each other out by reading out aloud parts of the other's statement, so they each had a pretty good idea of what was in each other's statement. A summary of Britney Weston's evidence 1. Britney Weston was living with her mother at the Kyogle caravan park in 2018 and was in Year 12 at school. She had met the complainant through being friends with her sister, EW. One night after returning to the caravan, the complainant was there. The two smoked two cones of marijuana each but neither were affected by the drug. She had never seen the complainant use any other drug. Then the complainant told Britney that she had a phone call and was going up to the shed. A silver car pulled up outside and the complainant got in, and the car left. 2. Britney next saw the complainant the following day, around midday, walking up to the caravan. She heard the complainant say she had had five lines of "ice", then she started talking to her mother and Britney was not really listening. The complainant was very pale and lay down. She was tired and drained. She also told Britney that she had been raped. She did not say anything else about what had happened, such as who had been at the shed or who had raped her. 3. A few days later, after the complainant had left, the applicant came down to the caravan. He told Britney, "I didn't do it. I wouldn't do that because I've got kids and that. I'm not that kind of person." 4. In cross-examination Britney agreed that in her police interview, she had said that when the applicant came to the caravan, she told him what the complainant had said, and that was when he said he did not do it, and he also swore on his kids that he did not do it. She also told police the complainant got back onto "ice" afterwards. As of the night of the incident, she had not known the complainant that well, or hung around with her much, because she was usually with her ex. She did not remember if the complainant told her she had had sex for drugs. Britney thought the complainant stayed with them for one night and slept in the tent outside. She had never read her mother's police statement and her mother had never read her police statement. A summary of Shantai Walker's evidence 1. Shantai Walker lived in Kyogle. One morning she received a phone call from Kristine Weston about something having happened to the complainant. Ms Walker went to the caravan park and saw the complainant lying on the bed in the caravan. She was pale and lethargic and "looked out of it". 2. Ms Walker asked the complainant what was wrong with her, and she replied that the applicant had his way with her. She also said he had given her about five lines of coke and bought her a packet of smokes. She also said that Wood Duck had been at the door. 3. Ms Walker had seen the complainant smoke cannabis before but had never seen her use any other drug. She had never seen her looking like she was that morning, out of it. She later told her partner what the complainant had said to her. 4. In cross-examination Ms Walker agreed she made her statement to police in June 2020. She disagreed she had not been in the caravan that morning. She agreed she did not tell the complainant's parents about seeing her looking unwell. When she was with the complainant in the caravan that morning and the complainant seemed out of it, Ms Walker described it as understanding bits of what the complainant was saying, and that she was falling asleep. Ms Walker was there for about 10-20 minutes. By late 2018 there were rumours going around in Kyogle about the allegations concerning the applicant. A summary of IW's evidence 1. The complainant's father, IW, had known the applicant for a few years, and knew he owned a motorcycle business in Kyogle, which IW had been to, but had never taken the complainant to. He did not really have much contact with the applicant. 2. At one point while at the caravan park, Ms Walker's partner told IW that something had happened to the complainant. IW came across the applicant and told him, "I've heard some really shocking news … I would like to find my daughter and get to the bottom of it"; he asked the applicant if he gave drugs to his daughter and had sex with her, to which the applicant replied, "I'm not like that. I wouldn't do that". 3. IW returned home and asked the complainant, who had been home only a couple of hours at this point, whether there was anything she needed to speak about, but the complainant was still twitchy from coming off the drugs. The complainant said she had been given a cocktail of drugs and alcohol and showed her father the pictures from her phone. She said that when she took the photos, she was not feeling right, that she was feeling insecure being pretty much locked in, that marijuana was taken and that once the alcohol was given to her she was feeling funny, and not really knowing her surroundings a bit, and that she was given six lines of cocaine. She then said she wanted to speak with her mother, which she did. IW heard the complainant tell her mother that when she was in a stupor, he raped her, and she was videotaped at the same time. IW walked into town. His wife rang the police, who came that afternoon. 4. About 1.5 – 2 weeks after the incident, IW started to receive numerous calls from a number he recognised as the applicant's. He received about 60 calls in one day, but he never answered them. 5. In cross-examination IW clarified that his wife had given the complainant and her sister EW permission to go out that particular night, the complainant to see a movie and stay with Britney. The next morning after ringing Britney and being told the complainant had not been there all night, IW went looking for her in town. He found her inside the shed and asked her what she was doing there; she vaguely said that she had been there quite a while. She was still under the influence of drugs, and then she went with the other Aboriginal women to the caravan park. 6. IW stayed to talk to the applicant and Mr Wood, who were also inside the shed. The applicant was fixing a car. IW asked them what the complainant was doing there but got no direct answers. This evidence was not in IW's statement. 7. The next day IW was still looking for the complainant. That was when he was spoken to by Ms Walker's partner, and then came across the applicant. That night his wife told him the complainant was all right and that EW was going to collect her. The following day the complainant returned home and that was when IW and the complainant talked about what had happened. 8. IW did not say to the complainant that he had heard she had had sex with the applicant for drugs. IW denied that he had a conversation with Mr Wood in late November or December about speaking with the applicant about either IW or the complainant getting a Harley and the matter would be dropped. He knew that the complainant was reluctant to make a police statement because of shame, but he did not force her to make a statement. The applicant brought a stove to his house after the incident but before IW found out about it. A summary of LW's evidence 1. The complainant's mother LW said that on 29 November 2018 the complainant had returned home from town. A few days earlier she and her younger sister, EW and EW's boyfriend had gone to town to spend time with friends. The day after she left the applicant delivered an oven to their house. Between leaving and coming home LW had received a call from EW telling her how the complainant was. 2. A couple of hours after the complainant returned home, quieter than normal, she had a conversation with IW in her bedroom and there was a bit of yelling, and when he left, LW went in and asked what that had been all about. The complainant was crying a bit and said, "He raped me … . The other night when we were in town I went to the shed … he offered me a cigarette and some pizzas and to go down to the shed and have a look at some motorbikes … . I had my own marijuana so I was smoking a little bit of that and he let me have some alcohol … . Not that many [drinks] but … I've got photos on the phone of what I had." 3. The complainant continued, "Don't get upset with me mum but I had some drugs … he gave me some lines of cocaine ... I'd never tried it before and I just thought I'd have a try … I think it was maybe five or six lines." The complainant was crying and trying to catch her breath. 4. The complainant said, "My head just started going all funny and I just started feeling all woozy and everything and not knowing where I was. And then he pulled down my pants and raped me". She said it was the applicant who did that. 5. LW called the police, who came that afternoon but only stayed for about 20 minutes as the complainant did not want to talk at that time. After two days of her parents talking to her about whether she should make a statement, she decided to speak with police. 6. In cross-examination LW agreed that in her first police statement it did not say she spoke with the complainant between IW speaking with the complainant and LW calling the police. In the triple-0 call (Exhibit 3) LW says that the applicant "has been giving sexual favours to our 15, 16 year old daughter", and "I think it might've started in, maybe a month or so ago". [12] She had said this because she was still trying to come to terms with what was going on, trying to get her words out, where she was anxious and stressed and it was chaotic. She was not sure if the complainant had said it started a month before. She was still trying to piece things together. LW denied that when the police initially came to the house that the complainant was behind her sister EW and smirking at the police officer. A summary of EW's evidence 1. The complainant's sister EW was a year younger than the complainant. Her then-boyfriend lived at the Kyogle caravan park with his family. One Saturday she and the complainant left home to stay at the caravan park. They arrived in the evening, although it was still daylight. EW stayed in her boyfriend's tent and the complainant stayed at her friend Krissy's van, which was close by. The next time EW saw the complainant was when her father showed up in a car with three other people in it, including the applicant. EW spoke with her father and the complainant for a few minutes. Her father then left with the driver; the applicant remained behind. EW went back to the tent for dinner. The applicant and the complainant stayed in the caravan. EW went back to the caravan around 11:00 pm. She asked the complainant if she was coming back over. The complainant said she was planning on going to get pizza with the applicant and see the motorbikes inside the shed. The complainant had been smoking marijuana; EW had never seen her use any other drug. EW had no difficulty communicating with the complainant at that time. 2. The next time EW saw the complainant was the following morning around 10:00am. She was at Krissy's caravan with Britney. Her eyes were really big, she was incoherent and not making much sense when she talked, and she could not walk properly and was stumbling. She said she had been to the shed with the applicant and they had had some alcohol. She said she did two lines of cocaine and after that she had kind of blacked out. She also said that the applicant had raped her. She was still dazed out at this point. 3. EW, her boyfriend, Britney, and the complainant had a barbeque near the van, although the complainant did not eat anything. EW and the complainant ended up going home sometime between the barbeque and the Monday, when EW remembered being at home. 4. EW remembered being at home when her father came into their room (she shared a room with the complainant) and told EW to leave. He was really cross, and then she heard him shouting. Her father then left the house. EW went back to the complainant, who was really upset and crying. She said it had been about the night she went to the shed. 5. The police arrived a few hours later. One of her parents came in to tell the complainant she had to talk to them. The complainant refused to go out and was really angry about it, but eventually she, EW and their parents went outside to meet with the police. They asked the complainant questions, but she rarely responded, only with yes or no. She did say she had gone down there, she had taken drugs and alcohol, and that she had been raped by the applicant. 6. In cross-examination EW agreed her police statement was taken on 27 January 2020 (although later it was noted that was an error, it was 7 April 2020), and she had been relying on her memory when she made it. She had been present on some occasions when the complainant had spoken about what had happened, or when her parents had discussed it. EW was sure her father had turned up at the caravan park that first night. She did not think she saw him the next day or that he came to the caravan park to take her home. While she was staying there, she did receive a call, but it was not about worrying where she was. 7. EW confirmed the complainant told her at the barbeque that she had been raped. She agreed in her police statement she said that the complainant told her she had been raped after the conversation with their father. EW was not sure if she was given any further details then or at any other stage. 8. EW confirmed that when a police officer asked the complainant, "Did he offer you anything for the sex or threaten you in any way?", EW answered, "Drugs". A summary of Acting Sergeant Michael McCormack's evidence 1. Acting Sergeant Michael McCormack attended the complainant's house on Friday, 30 November 2018, and was told by LW that the complainant had said she had sexual intercourse at the shed, with the man who runs the shed, being the applicant. Acting Sgt McCormack asked LW to get her daughter to come out so he could talk with her. The complainant told him the assault took place on Friday, 23 November 2018 at about 9:00pm. He asked her, "Did you give him permission to have sex with you?". She made no reply. He then asked, "Did you want the sex to happen?" She shook her head no. 2. Acting Sgt McCormack then asked, "Did he force himself on you?" The complainant did not reply. He said, "Did he offer you anything for sex, or threaten you in any way?" EW said, "Drugs." He asked what sort of drugs and the complainant said, "Cocaine. I don't want to talk any more." The complainant refused to make a statement. While speaking with the complainant, Acting Sgt McCormack observed that she appeared to be very nervous, she was kicking through the dirt, she kept burying her head in EW's shoulder, and whenever she looked towards the police, she appeared to be smirking, that is, "her lips came up into a bit of a smile-type thing". A summary of Detective Sergeant David Mackie's evidence 1. Detective Sergeant David Mackie was at Casino Detectives Office on 18 December 2018 at 8:15am when a call came through to him from the applicant. He told the applicant that Detective Hoffman (the OIC) was unavailable and asked if he could help. 2. The applicant said, "I've just been around to the caravan park", and something about Trevor Wood. He said, "I think he had sex with her … He had her at the shed". He said something about a cigarette packet, that had something written on it, that showed Wood was touching her up. He said that the girl being touched up was the complainant. Detective Mackie tried to ascertain the applicant's location, and the applicant said he was trying to find Wood at that time. 3. In cross-examination Detective Mackie confirmed the applicant's sentences had not been running together in a coherent fashion, even though the individual sentences made sense. At one point in the conversation the applicant said he had "belted" Wood. Detective Mackie agreed that the police interview with the applicant, which he had taken part in, had taken place on 14 December 2018. A summary of Detective Sergeant (DS) Steven Hoffman's evidence 1. DS Hoffman conducted the applicant's ERISP. 2. DS Hoffman gave evidence that he first spoke with Mr Wood in January 2019 at Lismore Police Station. He believed he was aware of Mr Wood's charges that were then currently before the courts. At that stage there was no discussion about how his provision of a statement might impact on his criminal proceedings. After obtaining Mr Wood's statement on 28 February 2019, DS Hoffman said it might be beneficial to call the applicant and engage him in conversation about the allegations. DS Hoffman subsequently provided Mr Wood with a letter of comfort for his court matters detailing his assistance. The applicant was arrested and charged in relation to this matter on 1 May 2019. 3. In cross-examination DS Hoffman noted call charge records had shown 21 calls from the applicant's mobile phone to the complainant's family residence between 5 November 2018 and 11 December 2018. The applicant had never been charged with supplying or possessing a prohibited drug. 4. Mr Wood was later charged with break, enter, and steal after breaking into the Kyogle Memorial Hall over 12-13 December 2018 and apparently staying there over several days, and stealing food to eat from the Kyogle Citizens Club located there. He pleaded guilty and was sentenced the day before the jury were empanelled for this trial. DS Hoffman agreed he provided a "favourable" picture of Mr Wood to that court in relation to his attending court and facing charges; he also provided that court with a letter of comfort. Mr Wood was sentenced to a 12-month community corrections order. 5. In re-examination DS Hoffman noted that Mr Wood had never expressed any reluctance to come to court in New South Wales from where he was residing in Queensland to face the break and enter charge. The applicant's ERISP 1. In addition to Q and A 73 and 74 which are quoted at [19] above, the applicant's ERISP included the following: "Q24: OK. And, um, so in relation to the incident with the daughter, so the information we have is that, um, is that you'd spoken to her in the, in the, um, in the caravan park that she was looking after someone's caravan or something. Is that right? A: Yea, I'd spoke to her at the caravan park. Q25: Yep. A: Um, it was, um, oh, the guy, Mark, uh, a guy, Mark, there which was being real sleazy with her. Q26: OK. A: And, uh, yeah. He just, said, oh, well, if you're worried about being here, I'm gunna be at the shed, so you're quite welcome to come up there. Q27: Yep, OK. A: And she did. Q31: Um, and, so this was all, when did this, is this during the day, or is this in the night? Or – A: Oh, jeez. She showed up at the shed, probably, 9:30, 10 o'clock at night. Q35: And is that the only time she's been at the shed? A: Oh she's been there with [IW] - Q37: Only time she's been alone, though? A: Yeah. Q39: Um, and how long was she there for? Like, was she there overnight? Or – A: Oh, she was there overnight. Q40: OK. A: She was, um, like, she was wired when she showed up there. Q41: OK. A: Like, just, you know, I've, not gunna play innocent, I know that she was on a lot more than weed - Q43: Yep. Um, what about alcohol. Had she been drinking? Do you know? A: Mmm. Q44: Not sure? A: Yeah, I, I'd seen her walkin' around the park, actually, with alcohol. Q48: OK. Um, and did she sleep that night at all? Do you know? A: No, she was up talking - Q49: OK. A: - - the whole night. Q50/51: Did you sleep at all that night? A: Well, I, I, went home at, uh, probably 4 o'clock in the morning. Q53: So when did she go home? A: Oh, she went home at 4:00 Q56: - - caravan park? Or – A: Yeah, she left for the caravan park. Q58: Or did you drop her off? Or – A: No, well, she just said, oh, I'm gunna head out for a, a bit, and then, when she took off, I, that's when I took off home. Q59: OK. You went home. A: And then, uh, yeah, come back down and, uh, she was actually there when I got back down there, so --- Q66: So the information we have is that, um, is that when she was at the shed that you gave her um, some cigarettes to smoke. A: Oh I don't smoke. Q68: And you gave her some alcohol while she was at the shed? A: No. Q69: Um, and then you gave her, um, what she understood to be cocaine. A: Yeah, no." Submissions The applicant's submissions 1. The applicant pointed out that the Crown case depended upon the acceptance of the complainant as an honest and reliable witness, although the admitted drug taking; delay and variations in complaint; and inconsistencies with other evidence all boded against her honesty and reliability. 2. The applicant referred to the accounts of Mr Wood and the complainant as being irreconcilable. Furthermore, there was inconsistent evidence from the complainant as to what she had taken "in terms of lines of cocaine as opposed to her using an ice pipe or snorting lines of cocaine". [13] The applicant submitted that despite what she had taken, the complainant had taken photographs of herself and a can at 1:21am, 1:23am and 1:57am where she presents as alert. The applicant contended that the complainant had the ability to annotate the photographs, that she did not say at any time she resisted the advances of the applicant by words or actions but wrapped her legs around him. 3. A further submission was that the complainant's accounts of the events were not consistent though "there was a thread of drug taking in the various accounts of the 'complaint' evidence". [14] The applicant contended that it was established that the complaint to police occurred in the context of her father's rage and rumours and gossip in the small rural community. 4. The applicant argued that there was a live issue that the applicant fabricated the allegation of being raped to deflect from the drug taking and potentially a transactional quality of the events in the shed. 5. Furthermore, Kristine Weston's contention that another man was involved in holding the complainant down was not corroborated by any other evidence or the allegations. The evidence of the complaint witnesses was submitted to be inconsistent and unreliable. 6. The applicant submitted that Mr Wood presented as a wholly unacceptable witness who was motivated by deflecting suspicion from himself and by the advantage to himself in prosecutions he was facing by way of obtaining a letter of comfort. His reliability was also affected by his drug use and the timing of his statements relative to his own prosecutions. The applicant referred to the evidence of the possible extortion of the applicant for Harleys, corroborated by Mr Wood in the telephone transcript on 24 April 2019. Further reference was made to inconsistencies in the evidence of the complainant's father and to the involvement of the police six days after the alleged offence. 7. In oral submissions, Ms Kluss emphasised the difference in the accounts of the complainant and Mr Wood; the failure by the complainant in her evidence to give evidence of complaints that she made to four or five witnesses who gave evidence of complaint; the delay in complaint; the inconsistences in the complainant's accounts of the drugs that she took; and the "selfies" that the complainant took of herself. 8. Ms Kluss submitted that the jury could not find the applicant guilty beyond reasonable doubt given the unsatisfactory nature of the evidence and contended that there is the real possibility that an innocent man has been convicted of offences he did not commit. The Crown's submissions 1. The Crown argued that the inconsistencies in the evidence did not establish that the jury ought to have entertained a reasonable doubt. The jury was well able to evaluate any evidentiary conflicts and imperfections. 2. The Crown submitted that the unreliability of Mr Wood, or any other witness in the Crown case, did not give rise to a reasonable doubt. 3. As to where Mr Wood's account differed from the complainant's evidence, the Crown pointed out that his credibility was attacked by the defence on various bases and the jury was provided with a warning by the trial judge pursuant to section 165 of the Evidence Act 1995 (NSW). 4. In addressing the applicant's submissions concerning the inconsistencies in the complainant's evidence, the Crown referred to the Crown Prosecutor's closing address during which the Crown told the jury that the complainant may have had interactions or conversations with the Westons, EW or Ms Walker but not recalled those conversations due to her disoriented and drug-affected state. The Crown submitted that the complainant's evidence was powerful and consistent. The evidence of each witness was that the complainant reported to them that she had consumed drugs and there had been non-consensual sexual intercourse. 5. The Crown argued that the applicant's submission about inconsistency in the complainant's evidence about the drug she had consumed in the shed should be rejected. The Crown contended her evidence was consistent, that she had been told (and believed) the drug she had consumed was cocaine and she had told Kristine and Brittany Weston that it was cocaine. She rejected the suggestion that it was "ice" or that she had told anyone it was "ice". 6. Another submission was that if the applicant was asserting that the complainant's evidence about the drug was inconsistent with the evidence of Mr Wood and/or Kristine and Brittany Weston, the jury was entitled to accept the unwavering evidence of the complainant. 7. The Crown submitted that the suggestion the complainant may have fabricated her account of what occurred in the shed was emphasised in the applicant's trial counsel's closing address and was plainly rejected by the jury. There was no evidence that the applicant had been extorted by the complainant's family. The height of the evidence was Mr Wood's testimony of hearing something along the lines about the complainant's father trying to get "a Harley out of [the applicant]". The Crown observed that the applicant said nothing in his ERISP to suggest that he had been asked for a Harley or any motorbike from a member of the complainant's family. 8. The Crown pointed out that it was not put to the complainant in cross-examination that she fabricated the story to hide her drug-taking behaviour from her father or because he was angry at her. The Crown, however, observed that notwithstanding the lack of cross-examination on this issue, the applicant's trial counsel raised it in her closing address and the jury plainly rejected this submission. 9. The Crown was critical of the applicant's submission that the verdict is unreasonable on the basis that there is no evidence to suggest that the complainant resisted the applicant's advances and wrapped her legs around him as she was taken up and lifted to the bed. The Crown argued that this submission attempts to recast the applicant's case as one where there was a "transactional quality" to the events in the shed, implying that consent or a belief in consent was a live issue in the trial. This is entirely inconsistent with his case at trial. 10. The Crown contended that all of what are said to be inconsistencies in the evidence were raised by trial counsel to the jury. The jury was well placed to assess the evidence. The Crown submitted that none of the matters relied on were, individually or collectively, such as to cause the jury or this Court to entertain a reasonable doubt about the applicant's guilt. Legal principle 1. The principles on which a Court will set aside a verdict as unreasonable were set out by the plurality (French CJ, Gummow and Kiefel JJ) in SKA v The Queen [15] as follows: "The task of the Court of Criminal Appeal [11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'. [12] This test has been restated to reflect the terms of a s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported, having regard to the evidence".' [13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgement in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' Save as to the issue of whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. [14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand"." (Footnotes omitted.) 1. In the Queen v Baden-Clay, [16] the High Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) emphasised the regard that must be had to the constitutional function of the jury as the tribunal of fact: "The whole of the evidence The role of the jury [65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact.' Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantaged enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. [66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court 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.'" (Footnotes omitted.) 1. In Pell v The Queen, [17] the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) made the following observations concerning the jury's advantage in seeing and hearing witnesses at [38]-[39]: "[38] It should be understood that when the joint reasons in M v The Queen spoke of the jury's advantage in seeing and hearing the witnesses' as being 'capable of resolving a doubt experienced by a court of criminal appeal' as to the guilt of the accused, their Honours where not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M where remarking upon the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible. [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.) 1. The High Court went on to say: "[42] As Weinberg JA noted, defence counsel's choice to employ the language of impossibility in his closing address risked setting a forensic hurdle that the defence did not need to overcome. Regardless of counsel's rhetorical flourish, the issue was whether the prosecution had excluded the reasonable possibility that the applicant did not commit the offence/s. [43] At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself: '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'. [44] The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms: 'But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt.' (Footnotes omitted; emphasis in original.) [45] As their Honours observed, to say that a jury 'must have had a doubt' is another way of saying that it was 'not reasonably open' to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M." (Footnotes omitted.) Consideration 1. In considering the applicant's contention that the verdicts are unsafe and unsatisfactory, this Court is required to review the whole of the evidence. 2. Notwithstanding the jury's assessment that the evidence of the complainant was honest and reliable, the question remains whether there are "inconsistencies, discrepancies and inadequacies" upon an examination of the record, which leads to the conclusion that the jury acting rationally ought to have entertained a reasonable doubt as to the applicant's guilt. 3. The applicant's argument focussed on inconsistencies and discrepancies in the evidence in the Crown case. Particular attention was directed to the difference in the accounts of the complainant and Mr Wood. Further attention was directed to the inconsistencies between the evidence of Kristine Weston, Britney Weston, Shantai Walker, IW and LW as to what was said to them by the complainant about the alleged offending. Another area of inconsistency was submitted to arise from the complainant's evidence as to the drugs she had consumed. 4. These inconsistencies and discrepancies were said to be so significant that the jury ought to have had a reasonable doubt as to the honesty and reliability of the complainant's evidence. As the trial judge emphasised during his careful directions to the jury, the critical issue in the trial was whether the members of the jury were satisfied beyond reasonable doubt that the acts of sexual intercourse occurred. It was the applicant's case that there was no sexual activity at all. 5. Another argument was that the complainant may have had a motive to fabricate her account either because she was trying to hide her drug taking behaviour from her father or because she and/or her family wished to extort the applicant. 6. It is to be accepted that there were inconsistencies in the evidence called by the Crown. The Crown Prosecutor in his closing address to the jury conceded "that there were many inconsistencies in the various accounts that were given by the witnesses that were called in the Crown case". [18] All of the matters raised in this appeal were canvassed at length by the Crown Prosecutor and the applicant's trial counsel. The trial judge addressed the issue of inconsistent evidence in his summing up. The members of the jury were plainly alive to the matters now raised on appeal when they considered their verdicts. 7. It is well established that the advantage a jury has over an appellate court "by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues at the trial". [19] 8. The jury had the opportunity of seeing and hearing the complainant and Mr Wood give their evidence which included rigorous cross-examination. The jury saw and heard the evidence of all the witnesses. Furthermore, the applicant's ERISP was played to the jury. 9. In the circumstances, where the jury saw and heard the evidence and the issues in the trial where well canvassed, the scope of the advantage enjoyed by the jury over this Court is significant. In my view, considerable weight must be given to the fact that the jury was able to be satisfied beyond reasonable doubt of the guilt of the applicant in respect of both counts. 10. It is undoubtedly correct that there is a stark divergence in the accounts of the complainant and Mr Wood as to when they were both present in the shed. The complainant's evidence concerning Mr Wood was that she heard a knock on the door after the sexual offending had occurred. The applicant grabbed her clothes and threw them at her telling her to put them on and sit back in her seat. When she did so, the applicant answered the door and Mr Wood entered, introducing himself as "Wood Duck". 11. On the other hand, Mr Wood gave evidence of seeing the complainant on two occasions. He first saw the complainant sitting on a chair and smoking an ice pipe. The applicant was talking to her. When he returned and had gone to sleep, he said that he was woken by the applicant who said "go and have a crack at that". He described seeing the complainant on her back on the corner of the applicant's bed. She had a top but nothing on her lower half. Her pants were on the floor beside the bed. 12. The applicant's trial counsel submitted to the jury that the two accounts were irreconcilable and they could not be satisfied beyond reasonable doubt that either witness was telling the truth. 13. In his summing up, the trial judge gave the jury a warning under s 165 of the Evidence Act 1995 (NSW) regarding Mr Wood's evidence. His Honour told the jury that Mr Wood's evidence may be unreliable for three reasons: his criminal history for offences of dishonesty; the statement that he gave implicating the applicant at a time when he himself believed that he was a suspect in respect of the sexual assaults on the complainant; and the reward he received for his evidence implicating the applicant. 14. In my view, it was open to the jury to reject Mr Wood's evidence. Furthermore, the jury was not obliged to have a doubt about the complainant's credibility because of the divergence in the two accounts. 15. The differences in the evidence of Kristine Weston, Britney Weston, Shantai Walker, IW, LW and EW as to what was said to them by the complainant and as to what they observed were raised by both counsel in their closing addresses to the jury. The Crown Prosecutor reminded the jury of the "gap in time" between when the incident occurred and when the Westons were asked to make a statement. [20] The Crown Prosecutor addressed IW's evidence and submitted that the jury may conclude that "there seemed to be a fair degree of scattering in his brain of the events that took place around that time". [21] Further submissions were made about EW's evidence. 16. While the differences in the evidence referred to above are matters that require consideration in the assessment of whether the complainant's account could be accepted to the requisite standard, they are not as significant as the applicant's counsel suggested. The complainant remained drug affected for some time after the incident. There were delays in some of the witnesses providing their versions. The differences in the evidence are not such as to have required the jury to harbour a reasonable doubt as to the complainant's evidence. The same observation may be made about the evidence of photographs that the complainant took of herself. 17. I turn to the submission concerning the inconsistency in the evidence of the drugs the complainant consumed. In cross-examination, the complainant rejected the suggestion that she thought what she was ingesting was "ice", or that she had an ice pipe or that she had told anyone that she had "ice" in the shed. She said that she never touched "ice" and maintained that she consumed cocaine. Whilst that evidence is inconsistent with Kristine and Britney Weston's evidence and the evidence of Mr Wood, it was open to the jury to reject the suggestion that the complainant had consumed "ice". There were aspects of the evidence of Kristine and Britney Weston on this issue to which the jury was entitled to have regarded in assessing the accuracy of their recollection. Both referred to the complainant saying she had had "five lines" of "ice". Moreover, Britney Weston told the jury that she had never read her mother's statement whereas Kristine Weston said they had both helped each other by reading out aloud parts of the other's statement. Furthermore, Shantai Walker's evidence was that the complainant told her that the applicant had given her "five lines" of "coke". 18. It was open to the jury to accept the complainant's evidence on the consumption of drugs. 19. There is little merit in the applicant's submissions that the complainant had a motive to fabricate her evidence. There was a paucity of evidence which supports this assertion. Both the complainant and IW denied in cross-examination that they were trying to get a Harley out of the applicant. The complainant also denied telling Leonie Scott that she was going to receive "a big payout" because the applicant raped her. [22] 20. It was not put to the complainant in cross-examination that she fabricated the story to hide her drug-taking from IW or because IW was angry with her. It is surprising that applicant's trial counsel was permitted to include this submission in her closing address. In any event, the issue of motive was put to the jury by the applicant's trial counsel and dealt with by the trial judge in his summing up. 21. It seems from the applicant's written submissions that he asserts that the verdict is unreasonable on the basis that the evidence did not suggest that the complainant "resisted the advances of [the applicant] by words or actions and indeed wrapped her legs around him as she was lifted up and taken to the bed". [23] This issue has been dealt with in Ground 1 of the appeal. It was not the applicant's case that the complainant had consensual sexual intercourse with him or that the intercourse was transactional. There is no substance in this submission. 22. There were undoubtedly inconsistencies in the evidence. Further, all of the matters relied on by the applicant as undermining the Crown case must be considered in combination. It remains the case, however that the jury as the constitutional tribunal for deciding issues of fact was well placed to assess all of the evidence and reach its verdicts. Despite the applicant's criticisms of the Crown case, those verdicts were open to them. 23. Upon my review of the whole of the evidence, I conclude that it was open to the jury to be satisfied that the complainant's evidence of the sexual assaults by the applicant was both honest and reliable. I do not consider that the jury acting rationally ought to have entertained a reasonable doubt. 24. I would dismiss ground 2 of the appeal. Proposed orders 1. I propose the following orders: 1. Grant the applicant an extension of time within which to seek leave to appeal against his convictions. 2. Grant the applicant leave to appeal. 3. Dismiss the appeal. 1. LONERGAN J: Having carried out my own independent review of the evidence in respect of ground 2, I agree with Price J that ground 2 of the appeal should be dismissed for the reasons his Honour has given. I agree with Price J in respect of ground 1. I agree with the orders proposed by Price J. 2. DHANJI J: I agree with the orders proposed by Price J and with his Honour's reasons. In relation to ground 2 his Honour's conclusion reflects my own independent review of the evidence. ********** Endnotes 1. Tcpt, 28 May 2021, p 145(9). 2. Tcpt, 31 May 2021, p 587(15). 3. Tcpt, 18 October 2023, p 6(30). 4. Tcpt, 28 May 2021, p 298(25). 5. Applicant's Written Submissions ('AWS') at [383]. 6. Tcpt, 18 October 2023, p 12(30). 7. Tcpt, 18 October 2023, p 12(36). 8. Aravena v R (2015) 90 NSWLR 258; [2015] NSWCCA 288 at [121]. 9. Hargraves v The Queen (2011) 195 CLR 257; [2011] HCA 44 at [42]. 10. Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7. 11. Tcpt, 26 May 2021, p 32(45). 12. Exhibit 3, p 4. 13. AWS at [389]. 14. AWS at [391]. 15. SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14]. 16. Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35. 17. Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. 18. Tcpt, 31 May 2021, p 5(35). 19. Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [17]. 20. Tcpt, 31 May 2021, p 3(42). 21. Tcpt, 31 May 2021, p 4(24). 22. Tcpt, 26 May 2021, p 59(33). 23. AWS at [390]. Amendments 09 February 2024 - paragraph re-numbering DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2024