Children's Court New South Wales Medium Neutral Citation: R v Adam [2024] NSWChC 6 Hearing dates: 6, 7, 8 May 2024 Date of orders: 20 May 2024 Decision date: 20 May 2024 Jurisdiction: Criminal Before: Children's Magistrate Hayes Decision: Not Guilty Catchwords: CHILDREN — CRIME — Sexual assault — Directions —Trauma informed — Knowledge Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Crimes Act 1900 (NSW) Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) Cases Cited: Azzopardi v The Queen (2001) 205 CLR 50; 119 A Crim R 8 Court of Appeal [1968] EWCA Civ J0123-2 Fisher v R [2024] NSWCCA 68 M v The Queen [1994] HCA 63; 181 CLR 487 South v R [2007] NSWCCA 117 MAJW v R [2009] NSWCCA 255 Doe v R (2008) 187 A Crim R 328 Jovanovic v R (1997) 42 NSWLR 520 R v Markuleski (2001) 52 NSWLR 82 Xu v R [2019] NSWCCA 178 Category: Principal judgment Parties: Adam (Young Person) The Crown Representation: Ms Lyte (Crown) Mr Cranney (Counsel for Young Person) File Number(s): 2023/220914 Publication restriction: Pseudonyms have been used to protect the identity of the Young Person and witnesses. Notes: Costs Reserved JUDGMENT PARTIES/PROCEEDINGS 1. Adam is the Young Person (YP). 2. Eve is the complainant. BACKGROUND 1. The YP is charged with two offences under section 61J (1) of the Crimes Act 1900 (NSW). 2. I will refer to 'the kitchen offence' as the first alleged offence and 'the bedroom offence' as the second alleged offence. 3. Each offence is worded that between 1 January 2022 and 31 December 2022 the YP had sexual intercourse with the complainant without her consent and knowing she did not consent in circumstances of aggravation, namely she was under the age of 16 years. 4. The YP pleaded not guilty to both offences. 5. The YP was aged 14 or 15 years at the time of the allegations. 6. The complainant was similarly aged. 7. The Court heard evidence over three days. ONUS OF PROOF 1. A critical part of the criminal justice system is the presumption of innocence. This means that a person who is charged with a criminal offence is presumed to be innocent unless the prosecution persuades the court that the person is guilty beyond reasonable doubt. 2. Consequently, the burden (or responsibility) of proof of the YP's guilt is on the prosecution. 3. The burden rests in respect of every element or essential fact of each of the offences charged. STANDARD OF PROOF 1. Section 141 of the Evidence Act 1995 (NSW) (EA) sets out the standard of proof. Subsection (1) reads: In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt. 1. The words 'beyond reasonable doubt' are ordinary English words and are to be given their ordinary English meaning. 2. If the case of the prosecution is proved beyond reasonable doubt - the YP is "guilty". If not, the YP is "not guilty". 3. There is no obligation on the YP to prove any fact or issue that is in dispute. It is not for the YP to prove his innocence but for the prosecution to prove his guilt. EVIDENCE/WITNESSES Voir dire 1. The Prosecution sought to lead context evidence of ongoing sexual activity between the complainant and the YP. 2. The allegations under s 61(J)(1) are said to have arisen in the context of a relationship between the complainant and the YP. 3. Section 294CB (2) and (3) of the Criminal Procedure Act 1986 (CPA) provides that, for prescribed sexual offence proceedings, evidence relating to the prior sexual history of the complainant is inadmissible subject to exceptions outlined in s 294CB(4)(a)–(f). 4. The Prosecution submitted that s 294CB(4)(a)(i) and s 294CB(4)(b) are applicable exceptions. 5. The Prosecution argued that evidence of ongoing sexual activity is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offences were committed; and that the evidence relates to a relationship between the YP and the complainant that was existing at the time of the commission of the alleged prescribed sexual offences. 6. Further, the Prosecution submitted that the probative value of the evidence outweighs any distress, humiliation, or embarrassment the complainant might suffer as a result of its admission: s 294CB (4). 7. The defence joined the prosecution's application; and sought to extend it by including text messages. 8. The Court ruled the evidence admissible. 9. To assist the Court, Ms Lyte provided a written record identifying the nature and scope of the evidence and the reasons why it is so admissible: see s 294CB (8). Witnesses Complainant 1. The complainant gave evidence that she and the YP were in the kitchen of her home in the afternoon around April 2022. 2. The complainant's parents were out. A sibling was in the loungeroom. 3. The kitchen and loungeroom are open plan - separated by a servery. 4. The complainant and the YP began 'making out'. 5. The YP said 'come on, can we do it'. 6. The complainant said 'yeah, just be quick cause Mum and Dad will be home soon'. 7. The YP put a condom on. 8. The complainant was bent over with her back to the YP. 9. The YP and the complainant began to have sexual intercourse. 10. The complainant's head was behind the servery. The YP could see over the servery to where the complainant's sibling was. 11. The complainant heard her parents arriving home. 12. She told the YP to 'stop'. The complainant described her voice as above a whisper. The complainant did not want her sibling to hear. 13. The YP did not stop. 14. The complainant said, 'we really need to stop, they (her parents) are going to walk in'. 15. The YP put his hand on the complainant's back and sped up. 16. The complainant tried to stand up. 17. The YP stopped sexual activity just prior to the parents walking in. 18. The YP put the condom in the bin and pulled his pants up. 19. The complainant was standing next to the YP when her parents walked in. 20. The YP picked up dishes as if he was washing up. 21. The complainant said to the YP 'I was telling you to stop, why didn't you? 22. The YP said 'Oh well, I didn't hear you'. 23. The complainant said she did not know if the YP genuinely did not hear her. However, the complainant said that she could see on the YP's face that he knew he had done something bad. 24. The complainant said: 'Oh OK, but that was bad, that wasn't right'. The YP said 'Oh sorry'. 25. The complainant and the YP did not talk about the incident again. 26. The complainant said in her evidence 'even if he didn't hear me' he should have apologised. 27. The next day the complainant told her friend, then aged 14. 28. The complainant said to her friend that she needed to talk to her to get her opinion. 29. The complainant explained that her and the YP were 'doing it'. The complainant heard her parents coming home. 'I told the YP to stop and he acted like he didn't hear me'. 30. Her friend said: 'that sounds like rape'. 31. The complainant told two other friends that day. 32. The complainant and the YP maintained their relationship. 33. During their relationship the complainant and the YP had agreed on a 'safe word for when things got too much'. The safe word was settled following conversations between the complainant and the YP about liking it 'rough and stuff'. 34. The second incident took place on the bed in the complainant's bedroom. 35. The complainant said the 'bedroom offence' occurred coming into the summer of 2022. During cross examination the complainant conceded the 'bedroom offence' occurred earlier in time. 36. The complainant's parents were home. 37. The complainant and the YP agreed to have sexual intercourse. 38. The YP was behind the complainant, both laying on their sides on her bed. 39. The YP and the complainant began to have sexual intercourse. 40. The complainant said 'stop, I'm in pain'. 41. The complainant used the 'safe' word. 42. The YP rolled the complainant over, so she was now on her stomach. 43. The YP's stomach was on the back of the complainant. 44. The YP said, OK, just keep taking it, it is almost in. 45. The YP kept pushing it in. 46. The complainant pushed him off her and sat up and began to cry. The YP said 'Oh sorry'. 47. The YP then said: 'I thought that was what you wanted me to do'. 48. The complainant said the YP did not fight me or force me to keep going. 49. The YP just laid on the bed next to me - then ignored her. 50. The complainant told friends the following Monday what happened. 51. Subsequently, the complainant says her mental health was 'going down'. She thought she was pregnant; she broke up with the YP and a few days later tried to kill herself. The complainant left a note and 'that is how everyone found about it'. Father of the complainant 1. The father of the complainant spoke about the complainant's mental health, particularly the complainant's hospital admission and self-harm note. 2. The father gave evidence that he thought the YP was polite and respectful. 3. The father understood, relevant to the allegations, that his daughter said 'stop' and the YP didn't. 4. The father believed his daughter. Complaint witnesses 1. Four complaint witnesses gave evidence. 2. Each of those witnesses were aged between 14 or 15 at the time of the complaint. 3. The first complaint witness (FCW) gave evidence that the complainant said the YP raped her three times. The second and third time were two weeks after the first time. 4. The FCW was with two other complaint witness. The FCW says they were 'shocked like hell' because none of us knew that he would be that type of guy. 5. The FCW says she was told that the complainant and the YP were in the bedroom, and he was holding her down and not letting her move. The complainant said she was telling him to get off and she was pushing him. The YP would just hold her hands so she couldn't push him off. 6. The FCW says the 'kitchen offence' was the third in time. 7. The FCW says every time I go to the complainant's house she gets upset and brings up those three times. 'It's like its playing over in her head'. 8. The FCW says that the complainant says the YP 'is a good guy' but because the complainant now has a new boyfriend, she says he is 'not a good guy'. 'Like she can't make up her mind'. 9. The FCW confronted the YP about the allegations and said: 'all I want you to do is admit' The YP called the FCW 'a liar'. 10. The second complaint witness (SCW) recalls the complainant saying she said to the YP to stop and that she says he did not. 11. The SCW advised the complainant to go to her parents, or to the Police or to the school counsellor. 12. The third complaint witness (TCW) says the complainant said the YP came to her house on the weekend and raped her. The complainant consented at first. The complainant then told the YP to stop and he did not stop. 13. The TCW said this incident occurred either in the bedroom or the kitchen. 14. The TCW said the incident occurred before the complainant's parents arrived home. 15. The last complaint witness (LCW) recalls the complainant speaking to her and the FCW and the TCW near the school canteen. 16. The LCW says the complainant said that her and the YP had sex last night - and he wouldn't stop. The complainant told him multiple times to stop because her parents were coming into the room. 17. The LCW said in February, March or maybe January 2023 the complainant had said the YP had raped her again. 18. The LCW felt sorry for the complainant because no one should go through that. 19. The LCW hates the YP's guts. Officer in Charge 1. The Officer in Charge (OIC) was challenged regarding the timeliness of the investigation, the inconsistencies in the complainant's evidence, the failure to take a further statement from the complainant about later evidence that came to hand and the reasonableness of the decision to charge the YP in the first place. Young Person 1. The YP did not give evidence. 2. The YP is not obliged to give evidence. 3. The YP did not participate in a police interview. The YP was not obliged to. 4. In Azzopardi v The Queen (2001) 205 CLR 50; 119 A Crim R 8, the majority of the High Court stated (at [34]): … the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct… 1. The Right to Silence cannot be used against the YP. Documents 1. Exhibits tendered to the Court included photographs, text messages and Cellebrite downloads. 2. Exhibit 8 includes messages sent by the complainant to the YP that she has a 'rape kink'. The YP responds by message: 'so if you get raped you like it'. The complainant responds 'probably', 'yeah I know it's bad', 'but like if you want', 'so you'll do it'. The YP seems to agree, and the complainant responds 'cool'. ISSUES NOT IN DISPUTE 1. The complainant and the YP were known to each other. 2. The complainant and the YP had sexual intercourse. 3. Sexual intercourse between the complainant and the YP in the 'kitchen' and in the 'bedroom' began consensually. 4. The complainant was under 16 years of age. 5. The complainant and the YP were of similar age. 6. The offences are alleged to have occurred prior to 1 June 2022. ISSUES IN DISPUTE 1. The Prosecution contends that the YP knew consent was withdrawn but continued with sexual intercourse. 2. The defence asserts that the complainant did not withdraw consent, and in the alternative, the YP did not know complainant was not consenting. 3. Neither party addressed the Court as to recklessness or whether the YP's belief as to consent was not reasonable. FINDINGS OF FACT RELEVANT TO ISSUES IN DISPUTE Credibility 1. The Evidence Act Dictionary definition of credibility combines truthfulness and reliability. Truthfulness of a witness 1. Truthfulness is concerned with a person's intention to tell the truth. 2. The Court studies the demeanour (or behaviour) of a witness. 3. The Court observes the evidence as it is given and uses those observations to determine whether the witness has given evidence in a forthright and knowledgeable manner. This influences whether the witness's evidence is convincing or not. 4. However, in the Court of Appeal [1968] EWCA Civ J0123-2, Lord Denning Master of the Rolls observed: '...demeanour is not always a touchstone of truth. A man who appears to be convincing may yet be mistaken. He may, without being fraudulent, have reconstructed the facts in his mind so as to support his own case. Conversely, a man who appears shifty and spiteful may yet be truthful. The heat engendered by the case may have made him angry, but not a liar. It is for this reason that a judge of fact should always test the evidence by reference to the documents or the probabilities of the case.' 1. In Fisher v R [2024] NSWCCA 68 at [114] reference is made to the theme of the judgments in M v The Queen and judgments that followed: A witness' extravagant or hysterical presentation is no more an indication of prevarication or lying than a calm and measured tone is a sign of truthfulness. 1. The commentary continues at [85]: … it could rarely if ever be the case that a witness' angry or frustrated or uncooperative demeanour somehow automatically corresponds with the reduction in or eradication of the witness' credibility. … In this regard, emotional lability or unusual but medically explicable behaviour may be helpfully contrasted with evasive or contradictory responses, for example, that tend directly or persuasively to suggest some active attempt by guile to mislead or deceive. Presentation by a witness in a particular way inevitably illuminates the question of whether he or she should be believed, but no general or universal conclusions can ever be drawn simply from behaviour so described. 1. The Court, therefore, considers other factors that may affect the truthfulness of a witness. 2. The Court ponders the plausibility of the evidence including human reactions - does it have 'a ring of truth'? 3. Evidence given against the witnesses' own interest may be found to be truthful. 4. Bias - such as if the witness expects a benefit, or has any interest in the outcome, or has a loyalty to one of the parties - can be a motive to be untruthful. 5. Embellishment may be a marker of untruthfulness. 6. Prior inconsistent statements and making false representations if established, may affect the assessment of the truthfulness of a witness. Note generally ss 103, 106(2)(a) Evidence Act 1995. 7. Similarly, a motive to lie or to be untruthful, if it is established, may "substantially affect the assessment of the credibility of the witness". 8. Where there is evidence that a Prosecution witness has a motive to lie, the Court's task is to consider that evidence - and to determine whether the Court is nevertheless satisfied that the evidence given is true: South v R [2007] NSWCCA 117 at [42]; MAJW v R [2009] NSWCCA 255 at [31]. 9. There is no onus on the YP to establish any motive for a witness to lie. To do so would reverse the onus of proof and require the YP to explain why the complainant would make up a false or mistaken allegation. 10. Even if no motive is raised, there may still be a motive to lie that no one knows about. 11. If a motive to lie has been raised, it is not for defence to satisfy the Court of such a motive but rather for Prosecution to prove the truthfulness of evidence it relies upon. 12. Rejection of the motive to lie does not necessarily justify a conclusion that the evidence of the witness is truthful: Doe v R (2008) 187 A Crim R 328 at [58]. 13. If the complainant has no motive to lie then that does not mean that they are, by that reason alone, telling the truth: Jovanovic v R at 523. 14. The truthfulness of a witness may be tested by reference to objective facts proved independently. 15. The witnesses' background, training, education or experience can affect the believability of that witnesses' evidence. 16. Changed behaviour of the complainant following alleged offences may support the truthfulness of allegations. 17. Even if a witness appears to be sincere, truthful, and honest, and even if the witness believes what he or she is saying, it does not necessarily follow that his or her evidence is reliable. Reliability 1. Reliability is to do with the accuracy of the evidence. Accuracy engages consideration of the witness's ability to accurately observe, recall, and impartially recount events in issue. 2. The ability of a witness to give reliable evidence may be affected by the passage of time. Memory is fallible. 3. The memory of a witness may be affected by the significance of the event, the length of observation and the observation conditions. Stressful situations can impact memory recall. 4. Life experiences can colour and distort the memory of what occurred. 5. Section 165 of the EA identifies the kind of evidence that may be unreliable, including admissions and evidence of which may be affected by age, ill health (whether physical or mental), injury or the like. 6. An abundance of detail in recounting an event does not necessarily imply an accurate memory. Credibility of a witness 1. A witness whose evidence is not truthful cannot give reliable evidence on the same point. 2. A truthful witness may give unreliable evidence. 3. Evidence may enhance or destroy the credibility of a witness. 4. An analysis of independent, extrinsic, forensic, business records or contemporaneous evidence tending to corroborate or undermine a witness's evidence impacts truthfulness and reliability. 5. Evidence may affect an assessment of both truthfulness and reliability or either or. 6. Evidence of a change in behaviour following an allegation may have weight. 7. The Court pays attention to serious inconsistencies in a witness's evidence. Such inconsistencies may disclose a lack of truthfulness or reliability. 8. Consistency of what the witness has said on other occasions may exhibit truthfulness and reliability. 9. The truthfulness of a witness and the reliability of the evidence are matters for the Court to assess. 10. The Court may accept or reject evidence. 11. If the Court accepts the evidence the Court may place whatever weight, or significance, it thinks is appropriate. Limited Murray Direction 1. It is important that the Court, before acting on the evidence of the complainant, scrutinises her evidence with great care to be satisfied it is safe to act upon that evidence to the high standard required in a criminal hearing. 2. Unless the Court is satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account she has given, the court cannot find the YP guilty. 3. In considering the complainant's evidence and whether it does satisfy the court of the YP's guilt, the court should look to see if it is supported by other evidence: but without breaching the prohibition in s 294AA CPA. Markuleski Direction 1. There are two charges before the Court. The Court must give separate consideration to the individual counts. This means that the Court is entitled to make findings of 'guilty' on one count and 'not guilty' on the other count if there is a logical reason for that outcome. 2. If the Court is to find the YP not guilty on one count, particularly if that was because of doubts about the reliability of the complainant's evidence, the Court would have to consider how that conclusion affected the consideration of the remaining count: see: R v Markuleski (2001) 52 NSWLR 82 Circumstances in which non-consensual sexual activity occurs — s 292A of the CPA 1. The Court must bear in mind that non-consensual sexual activity can occur in many different circumstances and between different kinds of people including people who are in an established relationship with one another. Responses to non-consensual sexual activity — s 292B of the CPA 1. The Court must avoid making an assessment about whether or not the complainant consented to the sexual activity on the basis of any preconceived ideas about how people respond to non-consensual activity. There is no typical or normal response to non-consensual sexual activity and people may respond to non-consensual sexual activity in different ways, including by freezing and not saying or doing anything. Lack of physical injury, violence or threats — s 292C of the CPA 1. People who do not consent to a sexual activity may not be physically injured or subjected to violence or threatened with physical injury or violence. The absence of injury or violence, or threats of injury or violence, does not necessarily mean the complainant was not telling the truth about the 'kitchen' or 'bedroom offence'. Misconceptions about a person's response to giving evidence — s 292D of the CPA 1. The Court must bear in mind that trauma may affect people differently, which means some people may show obvious signs of emotion or distress when giving evidence about an alleged sexual offence, but others may not. The absence of emotion or distress does not necessarily mean a person is not telling the truth about an alleged sexual offence, any more than the presence of emotion or distress means they are telling the truth about it. Warnings re use of remote facility/ pre-recorded evidence 1. It is standard procedure to give evidence by remote facility or pre-recorded means. The Court draws no adverse inference. The Court assesses the evidence in the same way of any of the other witnesses in the hearing. Complaint evidence 1. Evidence of complaint by the complainant is admissible under s 66(2) EA, where the complainant gives evidence. 2. The Prosecution relies on the evidence of the complainant having told others about the alleged assault by the YP. 3. If the Court is so satisfied, the evidence can be regarded as additional evidence that the complainant was assaulted in the way described. So, not only is there the complainant's evidence about being assaulted by the YP but also the description of the assault given. 4. The second way the evidence of complaint may be used, if accepted, is that it can be relevant to the truthfulness of the complainant's evidence in court. 5. The fact the complainant complained when the complainant did makes it more likely the complainant is telling the truth about having been assaulted by the YP. 6. But the complaint cannot be used as evidence that the assault occurred. 7. Further, just because a person says something on more than one occasion does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated. Differences in complainant's account - s 293A of the CPA 1. Experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that sometimes there are differences in an account of a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences. Differences in the complainant's account are important in assessing their truthfulness and reliability. Character evidence 1. The YP has raised good character. 2. This is not challenged by the Prosecution. 3. Therefore, the Court accepts the fact that the YP is a person of good character. 4. The law provides that the Court is entitled to take evidence of the YP's good character into account in favour of him on the question of whether the Prosecution has proved the YP's guilt beyond reasonable doubt. 5. The fact that the YP is a person of good character is relevant to the likelihood of him having committed the offences alleged. 6. The Court can take into account the YP's good character by reasoning that such a person is unlikely to have committed the offences charged. 7. None of this means that good character provides the YP with a defence. It is only one of the many factors the Court considers in determining whether the Court is satisfied beyond reasonable doubt of the guilt of the YP. 8. The significance of good character was considered in Xu v R [2019] NSWCCA 178. Complainant's Evidence 1. Generally, the complainant impressed as a witness attempting to be truthful. 2. Mr Cranney's submissions as to the facts found in assessing the demeanour of the complainant is largely not disputed by the Court. 3. The complainant abused the family of the YP when storming out of Court. 4. The complainant's demeanour in the witness box was, on occasion rude. The complainant glared at counsel. The complainant glared at the YP. The complainant chewed gum on day two. Mr Cranney's submission that the complainant hated the process of cross examination is a fair observation. 5. This behaviour, Mr Cranney highlights, was contrasted in the complainant's interview where she was relaxed and nonchalant. 6. In addition, the complainant became distressed, exhibited gratuitous concurrence - acquiescing to leading questions before the Court adjourned the hearing. 7. The complainant returned the following day to continue her evidence. 8. Mr Cranney hypothesised that it was not the reliving of the events that caused the complainant's emotions to boil, but the absence of control. Mr Cranney said: As each inconsistency rattled her lines, she became cornered. She became angry then she became dangerous. The complainant never once apologised for her outbursts. 9. But, as referred to in Fisher v R a witness' extravagant or hysterical presentation is no more an indication of prevarication or lying than a calm and measured tone is a sign of truthfulness. 10. The Court is sensitive to the complainant's mental health issues as conceded by the complainant and her father and referenced in screenshots of messages. 11. As in Fisher v R at [83] the complainant was distressed at times, particularly during cross-examination. However, a suggestion that a child complainant, with mental health conditions must be disbelieved by reference to her presentation as an agitated and frustrated witness who resorted to swearing - should be rejected. 12. A trauma informed Court understands the nature of the proceedings and the confrontation of cross examination in the circumstances of the complainant. Indeed, if the complainant was truthful in her assertions, then the Court well understands the demeanour displayed. 13. The Court, per s 292D of the CPA bears in mind that trauma may affect people differently. 14. This is relevant when comparing the pre-recorded interview and the behaviour of the complainant in cross examination. 15. Section 292D is sympathetic to trauma informed approach to fact finding. 16. A trauma informed approach recognises that witnesses may initially seem evasive or counterintuitive or laugh, smile, or seem emotionless. 17. Nevertheless, as Ms Lyte submits, the complainant when answering some questions, was quick to respond - without hesitation. Instinctive responses assisted the Court in making a positive assessment of the complainant's demeanour. For example, when the complainant was asked about rape the response was 'who would want that'. 18. Whilst the complainant's demeanour was different in Court to that in the interview it cannot be said that her evidence evolved in a materially different way from the original complaint. 19. Mr Cranney submits that the complainant told the Court that she withdrew her consent in the kitchen without warning and at a whispers volume to begin with. She could have moved. She could have said 'no' assertively and there were an infinite number of options available to her to stop being assaulted. She was not frozen in fear. She chose inaction. She chose to be the victim, if indeed she was. 20. Contrary to Mr Cranney's submission that the complainants account of the 'kitchen offence' was far-fetched the Court's assessment is it had a ring of truth. 21. The Court makes findings of fact that the complainant and the YP began 'making out'. The YP said 'come on can we do it'. The complainant said 'yeah, just be quick cause Mum and Dad will be home soon.' The YP put a condom on. The complainant heard her parents arriving home. She told the YP to 'stop' - her voice above a whisper because her sibling was close by. The complainant said, 'we really need to stop, they (her parents) are going to walk in'. The YP stopped sexual activity just prior to the parents walking in, put the condom in the bin and pulled his pants up and pretended to wash up. 22. This is altogether plausible. There is inaccuracy as to the complainant's time estimate of 2 to 3 seconds when the complainant heard the keys in the door, but the complainant was attuned to her parents arriving home shortly, she may well have been alerted prior to the use of front door keys and in the circumstances of a 14-year-old having sex in the kitchen as her parent's approached it probably felt like 2 to 3 seconds. 23. The Court similarly found the 'bedroom offence' as plausible, mostly unchallenged. Consensual sexual activity both times being conceded. 24. Mr Cranney puts to the Court that in the bedroom the complainant was able to stop the YP with a shrug of her shoulder. The complainant claims to have been traumatised by the events in bedroom, but she never raised it with the YP. And the rest of the night they stayed scrolling on their phones. 25. Ms Lyte asks the Court to consider the context of a person navigating a relationship at a young age with the stresses of mental health issues. 26. The Court per s 292C of the CPA appreciates that people who do not consent to a sexual activity may not be physically injured or subjected to violence or threatened with physical injury or violence. 27. It is not the low-level force that the complainant was able to use towards the YP but the lack of consent that is in issue. On the evidence the complainant did cry. The complainant did confront the YP. The complainant did make a complaint on the next school day. The Court also understands that young people may take a while to process events within a relationship, but the immediate reaction of the complainant crying - is telling. 28. The complainant, as Ms Lyte submits, made concessions against her own interest. For example, she had feelings for another boy, she had kissed the YP post breakup, and the complainant accepted she told people she was pregnant after the negative hospital pregnancy test. Further, the complainant accepted liking it 'rough and stuff'. Such concessions generally point to a person's intention to tell the truth. 29. Whilst the age of consent in NSW is accepted as 16 - inferred under 66C (3), and there is a statutory defence of similar age under s80AG - any admission of sexual intercourse by the complainant could be seen as against her own interest. 30. Mr Cranney submitted that the complainant had a clear dislike of the YP. This was undoubtedly true in Court. 31. Bias can be a motive to be untruthful. 32. However, the complaint to friends made by the complainant was made at a time that the complainant was in a relationship with the YP. Post complaint and prior to the pre-recorded interview the complainant was anything but biased as evidence in text messages in exhibit 11 - where the complainant used affectionate terms towards the YP. 33. More pointedly, even in the complainant's evidence in chief the complainant says regarding the 'kitchen offence' that the YP sought permission, the YP used a condom, and the complainant used a whisper. 34. The complainant concedes in her own evidence in chief that she did not know if the YP genuinely did not hear her and further concedes that possibility in her use of the phrase 'even if he didn't hear…'. 35. The complainant assists the defence in raising the YP's belief that the complainant consented and had reasonable grounds for that belief when the complainant says there was consensual sexual intercourse and then, on the withdrawal of consent the YP said 'Oh well, I didn't hear you'. 36. It is difficult to see how bias adversely affects the truthfulness of the complainant when the complainant provides evidence in support of the YP - prior to cross examination. 37. Regarding the 'bedroom offence' the complainant said 'stop, I'm in pain' and used the safe word. 38. On the complainant's evidence it would appear the YP did stop and changed position. One can speculate as to whether the YP was intending to relieve any pain the complainant was experiencing. The YP rolled the complainant over. 39. The complainant says the YP said 'I thought that was what you wanted me to do'. 40. Again, it is difficult to see how bias adversely affects the truthfulness of the complainant when the complainant provides evidence in support of the YP - prior to cross examination. 41. The complainant plays down the use of force required in the 'bedroom offence'. There is no suggestion of embellishment. 42. Further, the complainant says the YP did not fight me or force me to keep going. Again, this is in her evidence in chief. 43. Mr Cranney argues the complainant made every effort to discredit the YP - that he was coercive and controlling, that he was intimidating and that he was manipulative. Even after it was confirmed by doctors that she was not pregnant she strung the YP along. 44. The complainant even messaged the YP's grandmother. 45. Sure, the complainant intensely dislikes the YP. This was obvious during cross examination. But the credibility of the complainant is enhanced by the concessions she makes. The bias, in the Court's view, is negated by the complainant's efforts to be truthful in Court. 46. The Court disagrees with Mr Cranney's assessment that the complainant had no commitment to truth but that is not to say that the complainant was always truthful. 47. Mr Cranney highlights false representations that adversely affect the assessment of the truthfulness of the complainant. An example is the untruthfulness relating to the text message referencing a 'rape kink' - exhibit 8. 48. The text message is objective, contemporaneous and proved independently. The Court agrees with Mr Cranney that it is far-fetched to suggest the possibility that the YP accessed her phone to send herself the message, especially in light of the exchange of text messages between the complainant and the YP. 49. Whist Ms Lyte says the complainant did not directly assert the YP did send the message the inferred possibility raised by the complainant during cross examination was simply untruthful. 50. Ms Lyte highlights the consistency of what the complainant had said on other occasions - this exhibits truthfulness and reliability. 51. There is a consistency of complaint however, even the prosecution concede there is significant inconsistency of the assault in the way described. 52. Memory is fallible. The complaint witnesses are young and significant time has since passed. Life experiences can colour and distort the memory of what occurred. This could account for the vivid recollection of the assault by the FCW that is entirely inconsistent with all other accounts. 53. The complaint evidence cannot be regarded as additional evidence. 54. The suicide note is evidence of complaint. 55. The complainant in cross examination says it was intended to be read after her passing. 56. The suicide note is powerful evidence. 57. The suicide note is both truthful and reliable. 58. The note references sexual assault, though not particularised. 59. The note, in part says with reference to the YP: 'I still loved him. Even when he raped me, cheated on me, got me pregnant. Even after all that I still love him so much'. THE LAW APPLICABLE 1. The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 commenced on 1 June 2022. 2. These allegations are pre-1 June 2022. 3. The Act also inserted new directions on misconceptions about consent in sexual assault, for hearings commencing on and from 1 June 2022, into the Criminal Procedure Act 1986. Those directions apply in these matters. 4. To prove the YP is guilty, the Prosecution must prove beyond reasonable doubt each of the following four elements of the offence: 1. That, at the time and place alleged, the accused had sexual intercourse with the complainant. 1. The meaning of sexual intercourse is set out in s 61HA 2. This element is not in issue. 1. Without the complainant's consent: see (s 61HE (5)–(6)). 1. The second element concerns the complainant's state of mind. 2. The Prosecution must prove that the sexual intercourse occurred without the complainant's consent. In deciding whether the Court accepts that the complainant was not consenting, the Court may take into account any of the following: 1. Consent obtained after persuasion is still consent, provided that ultimately it is given freely and voluntarily. 2. Consent, or lack of consent, may be indicated by what the complainant said or did. In other words, the complainant's words or actions, or both, may indicate whether or not there was consent. 3. A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to that intercourse. There is no legal requirement for a person to physically resist before a Court can find that the person did not consent. Section 61 HE (2) defines consent: A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity. Consent is an ongoing process. A person can change their mind and withdraw their consent at any time. Consent is better explained in the now s 61HI - whilst not in force at the time of alleged offending - did not alter the meaning of consent: 1. A person consents to a sexual activity if, at the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity. 2. A person may, by words or conduct, withdraw consent to a sexual activity at any time. 3. Sexual activity that occurs after consent has been withdrawn occurs without consent. 4. A person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity. 5. A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity. 6. A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with— 1. that person on another occasion, or 2. another person on that or another occasion. A person can change their mind and withdraw their consent at any time. The Prosecution must prove the complainant did not freely and voluntarily agree to the sexual intercourse. The complainant's state of mind before or after the sexual intercourse might prove a guide, but the question is whether the Prosecution has proved that the complainant was not consenting because she says consent was withdrawn. If the Court accepts that evidence, then the Court could be satisfied the Prosecution has proved this element. 1. Knowing the complainant did not consent. The third element concerns the YP's state of mind. The Prosecution is required to prove the YP knew the complainant did not consent to the sexual intercourse. This is a question about what the YP's state of mind actually was. It is not a question about what anyone else would have known, thought or believed in the circumstances. It is what the YP knew, thought or believed. The Court must consider all of the circumstances, including any steps taken by the YP to make sure the complainant consented to the sexual intercourse. The law says the Prosecution will have proved the YP knew the complainant did not consent to sexual intercourse if: 1. the accused knew the complainant did not consent; or 2. the accused was reckless as to whether the complainant consented because the accused realised there was a possibility the complainant did not consent but went ahead not caring, or considering it was irrelevant whether the complainant consented; or 3. the accused was reckless as to whether the complainant consented because the accused did not even think about whether the complainant consented; or 4. the accused may have actually believed the complainant consented, but the accused had no reasonable grounds for that belief; or 5. the accused knew the complainant consented under a mistaken belief. As to whether the YP has reasonable grounds for believing that the complainant consents to the sexual activity, in Lazarus v R [2016] NSWCCA 52 Justice Fullerton at [156] accepted that the test has objective elements: 'in the sense that the grounds which might lead to a belief of consent must be objectively reasonable'. However, the test does not require a Court to consider 'what a reasonable person might have concluded about consent'. Instead, the Court should ask what the YP himself: 'Might have believed in all the circumstances in which he found himself and then test that belief by asking whether there might have been reasonable grounds for it'. 1. Under the age of 16 years The final element the Prosecution must prove beyond reasonable doubt is that the offence was aggravated because the complainant was under the age of 16 years. This element is not in issue. In M v The Queen at 493, the High Court said that a Court must ask itself: '... whether it thinks that upon the whole of the evidence …' the Court is satisfied beyond reasonable doubt that the YP was guilty. Decision: integrating the facts and law 1. Generally, the complainant impressed as a witness attempting to be truthful and her evidence reliable. 2. The suicide note is powerful evidence in support that the complainant did not freely and voluntarily agree to sexual intercourse; and speaks to the complainant's state of mind. 3. The Prosecution is required to prove beyond reasonable doubt that, at the time and place alleged, the YP had sexual intercourse with the complainant without the complainant's consent; and have done so. 4. The YP has raised good character, not challenged by the Prosecution. 5. The father of the complainant gave evidence that he thought the YP was polite and respectful. 6. The Court can consider the YP's good character by reasoning that such a person is unlikely to have committed the offences charged. 7. Relevant to the state of mind of the YP is his confirmation of the complainant's consent prior to the 'kitchen' and 'bedroom offences'. The YP used a condom. 8. The YP raises, albeit through the complainant's evidence, that he did not hear the complainant's withdrawal of consent in the kitchen and misunderstood the withdrawal of consent in the bedroom - 'I thought that was what you wanted me to do'. 9. The YP agreed to a safe word, stopped when told to do so by the complainant when she said she was in pain and repositioned. 10. The YP did not fight or use force in the 'bedroom'. 11. The law applied is pre-1 June 2022. 12. The Prosecution is required to prove beyond reasonable doubt that the YP knew the complainant did not consent to the sexual intercourse and have failed to do so. 13. ORDERS 14. Each matter is dismissed. ********** Amendments 30 May 2024 - Jurisdiction amended to criminal 17 July 2024 - Amendment for typographical errors. 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: 17 July 2024